Informative Articles About Digital Forensics Litigation Support

Doing E-Discovery Is Best Left to Outside Experts

By admin | May 24, 2007

Hunton & Williams has 17 offices for its Richmond, Va.-based firm, with one central litigation support center for helping its lawyers with their caseloads. That center is a 10,000-square-foot facility with between 35 and 40 staffers who handle complicated tasks, and that increasingly has meant collecting, sorting and analyzing electronic evidence. Hunton is rare in that it does electronic discovery in-house. However, even this firm does not handle all of its own workload for e-discovery issues. For really big or complicated cases, the firm will turn over evidence to e-discovery consultants. In the paper world, discovery was something law firms did themselves. When it comes to electronic discovery, however, firms need to have a certain amount of inhouse expertise, but most will probably find e-discovery is best left to outsiders. “We make arrangements with outside vendors whenever we need to,” says Sherry Harris, senior case management specialist with Hunton.

Read More

How to Avoid Common Pitfalls

By admin | May 23, 2007

Over the past few years, many multinational companies, and the law firms that service them, have made a concentrated effort to control the management of data created, stored, or sent overseas. It is no easy task. An estimated 99 percent of new information is stored electronically, mostly on computer hard disk. This is a tremendous amount of data considering that a company’s primary day-to-day contact with its own foreign executives may be conducted through e-mails, instant messaging, online video conferencing,or other forms of electronic communications. In the United States, a burgeoning body of case law has brought e-discovery out of the hands of a few tech savvy lawyers and introduced an entirely new element to civil discovery to a growing number of practitioners. Counsel that ignores the pronouncements of Zubulake v. UBS Warburg may be dealt a heavy blow at trial and on appeal. In addition, the Federal Rules of Civil Procedure incorporate several amendments dealing specifically with e-discovery.

Read More

Making Forensics Elementary at Your Firm

By admin | April 27, 2007

The electronic-discovery phenomenon is here to stay — and the industry is still exploding. The percentage of electronically-stored-information evidence in the standard case has increased exponentially, and all signs on the information superhighway and on roads leading to court indicate that ESI in litigation will escalate as time goes by. Along with e-discovery, the field of computer forensics is becoming evermore central to the discovery process. The need for computer forensics analysis is appearing frequently at the state and federal level, and the field’s influence and demands are permeating civil and criminal cases, both large and small. Attorney and e-discovery expert Tom O’Connor, with the Washington, D.C.-based nonprofit Legal Electronic Document Institute, says that judges in the cases he consults on are ordering e-discovery and computer-forensics investigation much more frequently than ever before. O’Connor is seeing the effect of this change on all kinds of cases. “Even a small business has a 20 GB hard drive these days,” he notes. “We can’t think of e-discovery as an issue only relevant to large or complex litigation anymore. Nearly everyone has at least one computer at work and one at home, not to mention a cell phone, PDA, GPS system and wireless Internet connection. With all these potential evidence sources for each individual, it’s no wonder that the amount of electronic evidence to be vetted is skyrocketing.” O’Connor adds that with large criminal cases, huge…

Read More

Computer Forensics & Data Preservation

By admin | April 27, 2007

Court-appointed trustees and receivers, or fiduciaries, identify, recover and evaluate assets and historical financial information. They are aided by a team of professionals, including attorneys, accountants, financial advisors, appraisers, investment bankers and others, depending on the nature of the matter. In the past, this meant sifting through reams of paper records and issuing subpoenas for bank records and other documents. Today, about 93 percent of information is electronically created, according to a University of California, Berkeley, study. And with as much as 50 percent of data created electronically never being printed, fiduciaries might miss vital information when relying on conventional discovery alone. Computer forensics professionals work as part of a fiduciary’s team by taking data preservation and network security actions to preserve relevant business records, including financial information and email. They are able to identify what information is available, where it is located and in what form it is stored. For example, computer forensics examiners can find email, word processing documents and spreadsheets residing in workstations, laptops, servers, backup tapes and portable storage, including external hard drives, Mp3 players and cell phones. In addition, they can find other critical data in antiquated business applications, phone systems and closed-circuit surveillance systems. First, this information must be secured to prevent it from being destroyed remotely or otherwise purged. Once critical data has been identified for preservation, computer forensics examiners can create exact copies of the…

Read More

Separating E-Discovery Myths from Realities

By admin | April 26, 2007

  By Conrad J. Jacoby, Esq. As the legal community continues to puzzle through the impact that digital information is having on the practice of law, many practitioners are guided by long-standing misconceptions and misunderstandings about electronic discovery. Whatever seed of truth exists in these platitudes, taking them at face value can lead to poor strategic decisions that limit the effectiveness of otherwise competent legal advice. Several particular “rules of thumb” seem particularly common in the legal community, even with extensive education efforts. Myth: E-Discovery Is Now Required In Every Case Reality: False. Since December 1, 2006, discovery of electronically stored information (“ESI”) has been a mandatory topic of conversation in every federal case and in an increasing number of state court matters. However, simply discussing e-discovery doesn’t materially change the basis for a legal claim or the factual evidence that supports or disproves the case. While individuals and businesses alike rely on computers for many reasons, e-discovery comes into play only when relevant information is stored digitally. In some situations, even though electronic evidence is available, it may be possible to resolve a dispute based on other evidence. Such an analysis is necessarily case specific, and the outcome is never a foregone conclusion, because so much useful information is often found in electronic evidence. However, situations can occur in which electronic evidence is strategically less important than other evidence. For example, in…

Read More

E-Discovery: The Times, They Are A Changing

By admin | April 21, 2007

Fasten your seatbelts legal mavens – in less than six months electronic discovery as we know it will undergo some important changes. These changes are being driven by amendments to the Federal Rules of Civil Procedure (FRCP) that become effective on December 1, 2006. While one of the intentions behind these changes is to reduce litigation costs, it very well may be that electronic discovery costs will increase as a result of the amendments, especially with respect to work that must be performed within the first 120 days after a lawsuit has commenced. Under amendments to FRCP 16(b), parties must get ready for a scheduling conference to consider electronic discovery plans within 120 days of the start of a lawsuit. And, at least 21 days before this scheduling conference, parties must meet and confer to discuss and try to agree upon electronic discovery procedures for the case, pursuant to FRCP 26(f). This means that parties must be formulating their electronic discovery plans within the first 100 days of the life of a case. While the purpose of these new rules is to provide early structure, uniformity and predictability, the reality is that right from the get-go of a lawsuit a party must start evaluating with its IT team and its outside counsel where it stands in terms of its own electronic data. Data can be located live on the network, on various servers,…

Read More

Is Digital Different? Electronic Disclosure and Discovery in Civil Litigation

By admin | April 20, 2007

By Kenneth J. Withers I. Introduction A new phenomenon has surfaced in civil litigation in the United States, or rather in the media coverage of significant cases. In the Microsoft antitrust litigation, the investigation of President Clinton by Judge Starr, Raytheon Corporation’s suit against its own employees for libel, countless employment-related actions, and even routine divorce cases, the evidence takes a new form. E-mail, chat room transcripts, databases, spreadsheets, web browser history files, and information derived from system backup tapes are replacing conventional paper documents. This phenomenon is not confined to the United States and its tradition of broad discovery. In 1997, the British press reported that insurance giant Norwich Union paid a  450,000 settlement to a rival company after disclosure of internal e-mail containing libelous allegations. In 1999, BG (formerly known as British Gas) paid more than  225,000, half of which represented legal fees, to settle a similar case. As in the United States, e-mail is emerging in UK employment-related litigation. The legal and business press in other common law countries, such as Canada, South Africa, and Australia, have noted the phenomenon. Even in Scotland, proud of its civil law heritage, a commentator in the popular press wrote that “these cases emphasize the growing importance of companies adopting policies to deal with requests [for electronic documentation] that might arise as a result of legal action.” The emergence of evidence in electronic form,…

Read More

Failing To Preserve Electronic Evidence Can Gut Your Case

By admin | April 19, 2007

By Eric Sinrod, If you want to succeed in litigation these days, it is imperative that relevant electronic data be preserved. The destruction of such data can lead to serious adverse evidentiary inferences, as illuminated by a very recent case. The case of Easton Sports v. Warrior Lacrosse involves the movement of an employee from one company to another and the allegation that he misappropriated trade secrets and confidential business information from the employee’s first employer. A federal magistrate in Michigan recently was called upon in the case to decide whether and to what extent sanctions should be awarded with respect to the failure to preserve certain electronic evidence. The magistrate found that the employee had inappropriately accessed numerous confidential electronic documents in his first employer’s computer record system. He then transferred at least a portion of those records to his personal Yahoo computer system account. The magistrate further found that the employee corruptly terminated his Yahoo contract with the intent to cause the destruction of information or data compiled through that service. Additionally, the magistrate concluded that he improperly copied confidential business information of his first employer to a CD, that he retained control of the CD after he ceased working for that employer, and that he later accessed the contents of the CD via a computer assigned to him by his second employer. That information was deleted after the filing of…

Read More

Gathering electronic evidence

By admin | April 18, 2007

A NEW field of evidence gathering involves techniques designed to find relevant electronic evidence on personal computers. This investigative discipline will become an important discovery tool for both lawyers and law enforcement agencies. Here Dr Henry B Wolfe* explains the basics of what it can and cannot do. Computer forensics refers to the developing field that captures and analyses information stored on personal computers. Relevant information is prepared in a format that will be easily used and understood in a court of law. The methods used can be demonstrated to be sound. Information found in this way can be used either to convict or to exonerate depending on each case. Some of these investigative techniques are legal, some require a warrant to execute legally and some are completely illegal. Nevertheless, they are all used to one degree or another in the pursuit of evidence to prove guilt or innocence. Electronic forensics is based on some technical facts that most personal computer users are not aware of. A good deal of information, whether deleted or not, may reside on a target PC without the knowledge of its user. Data resides in many places on a hard drive. Everyone knows that there are files and directories and system files. What most users do not realize is that there is a great deal of left over data stored on their disk drives. This data may be…

Read More

Zubulake v. UBS Warburg, ZUBULAKE 2

By admin | March 26, 2007

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LAURA ZUBULAKE, :: Plaintiff, -against- UBS WARBURG LLC, UBS WARBURG, and : UBS AG, : Defendants. OPINION AND ORDER : 02 Civ. 1243 (SAS) SHIRA A. SCHEINDLIN, U.S.D.J.: On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively “UBS”) to restore and produce certain e-mails from a small group of backup tapes. Having reviewed the results of this sample restoration, Laura Zubulake now moves for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS argues that based on the sampling, the costs should be shifted to Zubulake. For the reasons fully explained below, Zubulake must share in the costs of restoration, although UBS must bear the bulk of that expense. In addition, UBS must pay for any costs incurred in reviewing the restored documents for privilege. I. BACKGROUND The background of this lawsuit and the instant discovery dispute are recounted in two prior opinions, familiarity with which is presumed.1 In brief, Zubulake, an equities trader who earned approximately $650,000 a year with UBS,2 is now suing UBS for gender discrimination, failure to promote, and retaliation under federal, state, and city law. To support her claim, Zubulake seeks evidence stored on UBS’s backup tapes that is only accessible through costly and time-consuming data retrieval. In particular, Zubulake seeks e-mails relating to her that were…

Read More

Contact us

(Free initial consultation – no spam)

Contact form (1)

"*" indicates required fields

This field is for validation purposes and should be left unchanged.