E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

Rule 34 allows the option of discovery in "native" file formats, which can provide a litigant with much more detailed information than a TIFF (tagged image file format) file.  However, TIFF files are much easier to manage, and the storage and management of native file formats can be costly and cumbersome.  A recent ABA Journal article suggests that offering to provide a sample (or requesting a sample) of digital archives in their native format early on in the discovery phase can save parties significant time and money.  Parties (or the court) can then determine whether or not the evidence contained in the native format is relevant.  If it is not relevant, both parties are spared the expenses associated with the storage, review and management of the native files.  If the evidence is relevant, parties can proceed knowing that their resources are being utilized efficiently. 

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I recently handled a case where opposing counsel repeatedly emailed to me photographs purportedly evidencing her client's factual assertions.  Naturally, my clients and I had troubling questions regarding, among other things, (1) whether all of the photographs were taken on the same date at roughly the same time, (2) the source of the photographs, and (3) whether the photographs had been altered.  In the future, there may be a way to obtain that information from the photographs themselves, although, unfortunately, that information may have limited reliability.

A blog called "Out of the Box Lawyering" has a very interesting and useful recent post about a Microsoft program called Photo Info that potentially enables you to obtain from the digital version of a photograph data such as:

• the time and date the photograph was taken;
• the model of the camera with which the photograph was taken;
• technical information that could bear on whether the photograph was altered;
• other information relating to the "author" of the photo.

Although this tool has interesting ediscovery implications, the fact that the program itself allows people to change or augment that very metadata likely limits the evidentiary value of that metadata. 

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In the web world, we are all familiar with various search engines that are indispensable in locating information. However, these same search engines could also be potential pitfalls for exposing discoverable content.

Search engines (eg. Google) are essentially "crawlers" that browse and index all the webpages and files that are posted to the Internet, past and present. So what happens if a firm posts information on the web but later wants to block it from public view? Enter Robots.txt.

Simply put, Robots.txt is a text file put on a webserver hosted by a website for the purpose of controlling which pages can be indexed by a "well-behaved" crawler (or robot-- Google's crawler is coincidentally named Googlebot).

However, there are two ways for crawlers to circumvent Robots.txt and subject webpages and files to discovery. For one, since Robots.txt is just a protocol, "not so well-behaved" crawlers can choose to ignore it and still index all the pages and files posted at a website. Second, if website A posts a file and website B has a link to the file, Robots.txt provides no defense because the crawlers would still find the link listed on website B even though website A tries to block the file by removing the link at its own website.

To avoid questionable pages and files to be discovered by accident, it's best not to post them in the first place. In addition, it's advisable for in-house counsel to work with their IT department to review what's on their firm's webservers.

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One area of the electronic discovery process that is particularly time consuming and costly is the transfer of electronically stored information (ESI) to and from applications involved in different phases of the discovery process.  For example, if parties agree to produce electronic information in TIFF format, Excel Spreadsheets, PDFs and Outlook e-mails may be required to be converted to TIFF files.  The conversion to a single format can be extremely costly and time consuming.  In October 2007, the Electronic Discovery Reference Model (EDRM) announced a new Extensible Markup Language (XML) standard for the easy transfer of electronically stored information.

EDRM is an industry group that was created to develop practical standards for the e-discovery industry.  EDRM hopes that as the XML standard is adopted in the industry, the e-discovery process will become more efficient and effective as the movement and storage of electronically stored information becomes more streamlined. For a description of the XML standard, and for more helpful information, see this article from Newstex blog and LexisNexis.  And stay tuned to see if theory becomes reality with the proposed standard. 

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Much of the data stored on computers, such as the data stored in random access memory (RAM) and internet caches, is temporary and "ephemeral". Because these temporary, transient files are deleted as often as every few hours, it would seem that there would not be a duty to preserve them.

However, in Columbia Pictures Indus. Inc. v. Bunnell, 2007 U.S. Dist. LEXIS 46364 (C.D. Cal. June 19, 2007) Magistrate Judge Jacqueline Choolijan, following Ninth Circuit precedent, ordered the defendants to preserve data "stored" in RAM.  The court held that the server log data (IP addresses, etc.) stored in RAM was extremely relevant stored information under Rule 34 of the Federal Rules of Civil Procedure.

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