Presenting a live 90-minute webinar with interactive Q&A Divorce and E-Discovery: Locating, Obtaining, Introducing and Restricting Admission of Electronic Evidence WEDNESDAY, APRIL 9, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Honorable Scott Beauchamp, Associate Judge, 301st District Court , Dallas Jessica Hall Janicek, Attorney, KoonsFuller , Southlake, Texas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Electronic Discovery April 9, 2014
Electronic Discovery April 9, 2014 6
Federal Rules of Civil Procedure ✤ Applicable Sections ✤ 16, 26, 29, 30, 31, 33, 34, 36, 37 and 45 7
Obtaining Information in Electronic or Magnetic Form Requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced (Rule 34). Rule 34 allows requesting party to choose format for production. 8
Sources of Electronic Data ✤ Computers (desktop or laptop) ✤ Hard drives or personal backups ✤ Removable media devices (floppy discs, tapes, CDs, ZIP drives) ✤ Optical discs ✤ Network storage (hard discs, remote internet storage or backups) ✤ Portable media (PDAs, cell phones, camera phones, iPods, iPads, MP3 Players, Tablets) ✤ Internet Service Providers and other types of computer systems 9
Common Data Types in Divorce Cases ✤ Voice Transmissions ✤ Audio tape ✤ Cell phones ✤ Voicemail ✤ Video messaging 10
Common Data Types in Divorce Cases ✤ Mobile Devices (PDAs, Cell Phones, Tablet devices) ✤ Calendars ✤ Text messages (SMS/MMS) ✤ Notes ✤ Digital photos ✤ Address books 11
Common Data Types in Divorce Cases ✤ Computer Generated Data ✤ Spreadsheets ✤ Computer simulation ✤ Emails ✤ Information downloaded from GPS devices 12
Common Data Types in Divorce Cases ✤ Video Transmissions ✤ Cell phones ✤ Computers and web cameras ✤ VHS ✤ Surveillance cameras ✤ Video cameras ✤ Internet accounts (YouTube, etc.) 13
Other Types of Data ✤ Active/Online data ✤ Near-line data ✤ Archival or backup data ✤ Data on backup tapes ✤ Erased or damaged data ✤ Hidden data or metadata 14
What is Metadata? ✤ Metadata is data about data ✤ Noteworthy examples ✤ Change tracking, document revision ✤ Cell comments (Excel) ✤ Hidden text ✤ Could contain privileged information 15
Removing Metadata Google “office find and remove hidden metadata” 17
Native Electronic Format Refers to the file format which the application works during creation, edition, or publication of a file. 18
How to Get the Information ✤ Requests for Production ✤ Interrogatories ✤ Admissions ✤ Deposition Testimony ✤ Requests to Gain Access to Electronic Devices 19
Creative Requests for Production Introductory language should include any data or electronic media stored in any computer system or in any cloud system utilized by the opposing party, or which the opposing party has access to. 20
Creative Requests for Production Request should specifically be made that the electronic data be produced on a CD-Rom disc or zip drive in a version readable under Windows XP or higher, Notepad or Wordpad. 21
RFP Introductory Language ✤ Specifically request that electronically stored data stored on backup tapes be produced. ✤ Specifically request that electronically stored data that has been deleted, but is recoverable, be produced (Ex: Facebook). 22
RFP Example All letters and correspondence, including electronic writings (for example, including, but not limited to, e- mail, text messages, instant messages, twitter posts, facebook messages, snapchats, whether or not deleted that can still be recovered), between WIFE and any of your agents or employees... 23
RFP Example For the relevant time period to the present, all documents, correspondence, electronic writings, or other written memoranda, printouts, and screen shots pertaining to any social networking site where you have or have had an account or membership, including but not limited to twitter.com, myspace.com, match.com, eharmony.com, perfectmatch.com, Yahoo Personals, true.com and facebook.com. 24
Digital Media RFPs ✤ Request the production of digital, downloadable media accounts. ✤ “For every iTunes account used, associated with, utilized by or operated by Husband, produce a copy of the iTunes account information, including, but not limited to, a copy of all music, applications, podcasts, videos, or any other media downloaded on Husband’s iTunes account. ” 25
iTunes Music 26
iTunes Applications 27
Amazon Kindle 28
Android Applications 29
Farmville, Word Challenge, and other Facebook Applications 30
Objections ✤ OBJECTION: This Request is unduly burdensome, involves unnecessary expense, and/or made for the purpose of harassment. The burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. 31
Objections ✤ Note that if you are requested to produce electronic data in all it's forms, including inaccessible data as defined by Zubulake, you want to object to that being unreasonable to obtain and expensive. A cost shifting analysis may need to be performed before production occurs. 32
Objections OBJECTION: Objection is made to this request to the extent it asks for information not yet available because said request is premature. Note this is very appropriate for settlement negotiation questions in interrogatories. 33
Interrogatories 46
Interrogatories ✤ Number each party is permitted governed by stipulation, court order, or statute. ✤ Parties are generally limited to 25 ✤ FRCP 33(a)(1). 47
Discrete subparts ✤ Each discrete subpart of an interrogatory is considered a separate interrogatory ✤ 33(a)(1) ✤ What is a discrete subpart? ✤ Most district courts ask whether the particular subparts are logically or factually related to the primary question. Madison v. Nesmith , No. 9: 9:06-CV- 1488 ; 2008 WL 619171, at *3 (N.D.N.Y. Mar. 3, 2008) 48
Objections — Interrogatories The subparts contained herein ask for information logically and/or factually related to the primary interrogatory, therefore, an objection to any interrogatory herein under FRCP 33(a)(1) is not permissible. 49
More on Interrogatories If the answer to an interrogatory may be derived or ascertained from a party’s business records, including electronically stored information, the responding party may answer the interrogatory by specifying and, if applicable, producing the records or allowing the other party to inspect and copy the records. (FRCP 33(d)). Specifically applies to ESI. 50
Objections 51
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