Electronically
Stored
Information
The Complete Guide to Management, Understanding,Acquisition, Storage, Search, and Retrieval
David Robert Matthews
DRFS, CSFA
fc Croup, business
Contents
Foreword xv Preface xvii Acknowledgments xix
The Author xxi
Chapter 1 What Is Electronic Information, and Why
Should You Care? 1
1.1 Introduction 1 1.2 Electronically Stored Information (ESI) and
the Federal Rules of Civil Procedure 2 1.2.1 Changes to the Federal Rules of
Civil Procedure 3 Rule 16 (b)(5) and (6)— Pretrial Conferences; Scheduling Management 3 1.2.1.2 Rule 26— General Provisions Governing Discovery; Duty of Disclosure 4 1.2.1.3 Rule 37 Safe Harbor 11
1.2.1.4 Rule 34 (b) Producing
vi Contents
1.2.1.5 Rule 33 (d) Interrogatories
to Parties 14 1.2.1.6 Rule 45 Subpoena 14
1.2.1.7 Form 35 14 1.2.2 Federal Rules of Evidence 15
1.2.2.1 502 16 1.2.2.2 FRE 901 17 1.2.2.3 FRE 802 17 1.2.3 Case Law Examples 18
1.2.3.1 Bass v. Miss Porter's
School (D. Conn. Relevancy 19 1.2.3.2 Crispin v. Christian Audi0er, Inc. (CD. Information 20 1.2.3.3 Romano v. Steelcase (NY. Sup. Q . 2010)— Another Social Media
Privacy Case 21 1.2.3.4 Spoliation Examples 22 1.2.3.5 Inc. v. Vanaire, Inc. (W. D. Ky. to Reasonably Expect Litigation 24 1.2.3.6 Olson v. Sax (E. D. Wis.
Harbor Rule 25 1.2.3.7 Spieker v. Quest Cherokee, LLC (D. Kan. Is the Practice 27
1.2.3.8 Electric Sys., Inc. v. Cleveland Die and Mfg. Co. (E.D. Mich.
of Evidence as Requested in
Meet and Confer 28 1.2.3.9 Takeda Pharm. Co., Ltd.
v. Teva Pharm. USA, Inc.
(D. Del.
Reasonably Accessible? 28 1.2.3.10 O'Neill v. the City
of Shoreline (Wash.
Are Data and Home
Computers Are 29 1.2.3.11 Williams v. District
of Columbia
"Claw-Back" Rules Can
You 30 1.2.3.12 Pacific Coast Steel,
Inc. v. Leany (D. Nev.
Privilege 31 1.2.3.13 Kipperman v. Onex Corp.
(N.D. GA.
Textbook Case 32 1.2.3.14 Pippins v. LLP
(S.D.NY.
Much Data Do You Really
Have to Keep 33 1.2.3.15 Chen v. Dougherty
(W.D. WA. 7/7/09)— Attorney Gets a Slap for
Contents
1.2.3.16 United Central Bank v.
Fashions, Inc.
(N.D. 9/21/11)— Spoliation Sanctions That Hurt the Party but Not
Their Attorney 34 1.2.3.17 Pension of Univ.
of Montreal Pension Plan v. Bank of Am. LLC (S.D.N.Y 1/15/10) 35 1.2.3.18 Holmes v. Petrovich Development Company, LLC (CA Court of Appeals, October, E-mail Sent from Work Not
Privileged 35 1.2.3.19 Lester v. Allied Concrete
Company (Circuit Court
VA, September, 2011)— Original Award Reduced Due to Withholding of
Facebook Evidence 36 1.2.3.20 The Rulings of Judge
Pension, and National Day
Labor 36 1.2.4 Other Federal Rules That Affect
Electronic Data 45 1.3 The Problems with ESI as Discoverable
Evidence 45 Why and How This Affects the Practice
of Law 51 1.5 How This Affects Business Organizations 55
1.6 Effects on Government Entities 57 1.7 What This Might Mean to You as
Chapter 2 Translating Geek: Information Technology
versus Everyone Else 61
2.1 Introduction 61 2.2 The Role of Information Technology 62
The Information Technologist's Perspective 72
2.4 Information Technology as an Ally 75
2.5 Translating Geek 77 Chapter 3 Where is Electronically Stored
Information? It's Everywhere! 81
3.1 Introduction 81 3.2 The Basics 83 3.3 Database Systems 90
3.4 E-Mail Systems 95 3.5 File and Print Servers 99 3.6 Messaging Services 103
3.7 Mobile Devices 106 3.8 Physical Access Records 110
3.9 Telecommunications 115 3.10 Cellular Devices 127 3.11 Video 134 3.12 Internet or Online Data 139
3.13 Storage Media 154 3.14 Desktop Computer Facts 158
3.15 Metadata and Other Nonapparent Data 164
3.16 Conclusion 167 Chapter 4 Who's in Charge Here? Allies, Owners,
and Stakeholders 169
4.1 169 4.2 The (Long) List of Stakeholders 170
4.2.1 Information Technology
Professionals 170 4.2.2 Legal Staff 172 4.2.3 Records Managers 174
x Contents
4.2.4 Auditors 174 4.2.5 Department Heads, Vice Presidents,
and Executives 174 4.2.6 Physical and Information Security
Personnel 175 4.3 Ownership of Data 176 4.4 Data Control Considerations 180
4.5 Required Skill Sets and Tools 185 Chapter 5 The Hunt: Recovery and Acquisition 189
5.1 Introduction 189 5.2 Where Oh Where Has My Data Gone? 190
5.2.1 Applications as a Vital
User Interface ....191 5.2.2 Hidden or Restricted Access Data... 196
5.2.3 Encrypted Data 202 5.2.4 Deleted or Corrupted Data 204
5.2.5 Proprietary Data or Data Stored on
Obsolete Media 206 5.3 Privileged, Sensitive, and Inaccessible Data
Management 211 5.4 Proving Ownership and Integrity 219
5.5 Marking Time Is Recorded and
Ensuring Integrity 229 5.6 Legal and Sound Acquisition 233
Chapter 6 Keeping Your Treasures: Preservation
and Management 241
6.1 Introduction 241 6.2 Securing the Data 241 6.3 Access Control and Management 245
6.4 Organization and Management
Techniques 251 6.4.1 Organization 252
6.4.2 Management of Data over 256 6.4.3 Response to Litigation or Audits 258 Safe Storage Issues and Considerations 261
6.6 Litigation Hold 267 Loss of Relevant Data 270
6.8 Automated Technical Solutions 272 Chapter 7 Sharing Is Good: Dissemination and
Reporting 277 7.1 Introduction 277 7.2 Format or Usable? 278
7.3 Mediums for Transfer 281 7.4 Creating Readable Reports 284 7.5 Tips for Depositions and Expert Witness 287
7.6 Conclusion 290
Glossary 293 Appendix Links and References for More
Information 329 Appendix B: Forms and Guides 335
Appendix C: Links to Technical Software Solutions .... 353
