6.10

E-Discovery

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INTRODUCTION

If you were wondering why we chose the image at the top of this Segment, now you know why!

All jurisdiction now allow for discovery of electronic information, such as emails, computer hard drives, instant messages, and other data collected digitally. This section of the manual will introduce you to this cutting edge area of litigation.

Lecture Notes . . .

ABOUT E-DISCOVERY
A lot of this material is very technical and can be confusing. It will really help you conceptualize the overall process if you think of e-discovery in the stages presented in the manual:

The Pre-Litigation Stage
This stage involves preparing both the firm and the client for e-discovery so that unfortunate ramifications are kept at a minimum (such as when a client deletes emails or other data). This section also discusses the all-important litigation hold.

The Requesting Stage
This part of the manual will help you understand how e-discovery is initiated and how to prepare for searching the data that is produced.

The Responding Stage
The responding party must search its own data to determine what information may be required for response. In order to properly search and extract the data, it is likely that a vendor will be required. Remember, even looking at a document alters it!

Your best friend in this section is the list of terms. If you can be aware of concepts such as metadata, archival data, spoliation, and more, you will be ahead of the game when actually having to help with e-discovery.

One more note. Volunteer to attend any and all e-discovery conferences in your area, even if they are designed for attorneys.

Sedona and Zubulake
One problem with e-discovery is that the rules may change from jurisdiction to jurisdiction. Not only from federal to state, or state to state, but in some cases county to county. So how do you, as a paralegal, develop a skill that will be helpful no matter where you are?

The answer is to become familiar with two terms: The Sedona Conference and Zubulake.

Sedona
The Sedona Conference refers to an annual summit held in Sedona, Arizona where legal experts came up with standards for different topics, including e-discovery. While the policies developed at Sedona in 2005 are not binding anywhere, many jurisdictions are using those standards in developing e-discovery rules.

For your purposes, even knowing the term "Sedona Conference" and understanding what it refers to will impress an attorney. Also, the discussion points presented in the manual mirror the policies proposed at Sedona.

Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003)
Zubalake deals with many issues regarding e-discovery, including one of the most difficult to address: Who pays for e-discovery? Zubalake came up with a 7-step test for determining whether and when shifting the cost of e-discovery from one party to the other is justified.

E-Discovery Checklists in the Manual
Notice the checklists provided throughout this section of the manual. They are not tested, so don't try memorizing them. The checklists should be reviewed, however, so you can later refer to them when you are on the job and need some starting points for e-discovery.

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Paralegal Perspective . . .

When representing a client authority is everything. Any argument before the court must be based on authority. While there are various kinds of authority, the fundamental difference is between primary and secondary authority. Primary authority is law. Secondary authority is non-law. Thus, when researching a paralegal uses secondary authority (non-law) to locate primary authority (law).

Non-authority is another kind of authority. It is authority that would never be used by the court in coming to its decision. Non-authority may serve as a good research tool (such as an index), but it would never be used in legal writing.


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Commonly Asked Questions . . .

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