Discovery Flashcards
(46 cards)
Media
Device capable of storing ESI examples incl. computers flash drives etc
Discovery plan
Even if rules don’t req it courts emphasize the collaboration between parties to establish a plan of working tgt
Metadata
Visible data that is readily observed on a computer and stores info such as when a document was created, last opened, who edited, and generally is hard to alter or fake
Embedded data
Similar to metadata, but typically not visible and more subject to manipulation than metadata
Native files
Files in their og state incl metadata and embedded data
Preservation
The protection of data already created
Retention
The ongoing protection yet to be or being produced
Litigation hold
Concept that a company expecting or is in the litigation process has the obligation to preserve data that may be deemed later relevant and a party is subject to sanctions for failing to initiate the hold early enough even prior to the filing of a law suit
Spoliation
Refers to evidence that has not been properly preserved for use by another in pending or future litigation where sanctions can be severe
Post production spoliation motions
A party who allows spoliation may be sanctioned by the court. Remedies sought in such motions may include: default judgement, dismissal, fines, awards of attorney fines, contempt citation, disqualification of counsel, adverse inference instruction, exclusion of evidence
adverse inference instruction
Used in extreme cases where a party has allowed evidence to be subject to spoliation where jury is told that evidence that should have been available has been altered or destroyed and may infer that the destruction was an attempt to hide damaging information
Confidentiality agreement
An agreement between parties that certain information shall not be shared or discussed with anyone else
Non waiver agreements
Refers to information exposed during the examination of data that would under any other circumstances be privileged such as medical information or attorney client communication. Any inadvertent disclosure of privileged info must be excluded from litigation
Two tiered e discovery plan
To limit cost of discovery, the responding party first disclosed files and info from active data readily accessible where if the requesting party is not satisfied with information or spoliation is expected then the requesting party may request a more intrusive response (court usually would need to be convinced that the initial response was not sufficient)
Legacy data
Data on older forms of media storage such as tape drives
Fragmented data
Info that is spread across a hard drive. Fragmented data may be reassembled and recovered by a expert in some cases such as a deleted document
Active data
Files currently o the hard drive that are accessible through standard means
Latent/Ambient data
Deleted files and other data on the hard drive that are not readily accessible such as metadata, temporary files, printer spool files, and other digitally dispersed data, may require an expert to recover
Archival data
Data kept o media other than the og drive. Usually does not include latent data which is critical in determining authenticity
Hard drive image
Preserves metadata and embedded data as it’s an exact replica of the original hard drive where unlike copying files in the drive, it duplicates every aspect. To preserve the chain of custody and accuracy of evidence, this must be done carefully and documented step by step
Forensic computer technologist
Expert who extracts data
Sampling
A fraction of the data requested to check for relevant information to see if the responding party will be needed to torche information
Cost shifting
Party producing discovery generally bears the burden of cost— to shift to the requesting part the court must be convinced that doing so is justified (usually in a 7 part test:
1. Is the request specifically tailored to discover relevant info
2. Is the information available from other sources
3. How does the cost of production compare to the amount in controversy
4. What are the relative positions of the parties in terms of resources
5. Who is best shoe to control costs and has incentive to do so
6. Are the issues in discovery key to the issues at stake
7. What are the relative benefits of the party obtaining the data)
Sedona conference
Annual conference that deals with current legal issue including ediscovery and influence procedures
