Electronic Evidence: New Challenges
for Information Security Officers
Chief Assistant Attorney General, Public Rights
Chief Information Officer, State of California
Introduction to the recent FRCP amendments
for “Electronically Stored Information” (ESI)
Implications for Information Security
E-Data has been Discoverable
and Admissible for Some Time
“Fed. R. Civ. P. 34(a): “document” includes “data
compilations from which information can be obtained,
translated, if necessary, by the respondent through
detection devices into reasonably usable form”
“Today it is black letter law that computerized data is
discoverable if relevant … The law is clear that data in
computerized form is discoverable even if paper ‘hard
copies’ of the information have been produced….” Anti-
Monopoly, Inc. v. Hasbro, Inc., 94 Civ.2120, 1995 WL
649934 (S.D.N.Y. 1995)
FRCP Amendments and
Amendments to the Federal Rules of Civil
Procedure address “electronically stored
Apply to cases brought on or after 12/1/06
and all other cases unless “would not be
feasible or would work injustice.” Rule 86.
Amended Rule 34(a):
“Electronically Stored Information”
“Any party may serve…a request…to
produce designated documents,
electronically stored information—
including writings, drawings, graphs,
charts, photographs, sound recordings,
images, and other data or data
compilations stored in any medium from
which information can be obtained—
translated, if necessary, …into
reasonably useful form…”
Four Concepts in the New Rules
Early Consideration of ESI issues
Two-Tier Approach to Back-up Media
Shallow Safe Harbor for E-Document
Critical Decisions Come Early!
Rule 26(f) Conference Among Counsel
ASAP but not later than 16 days before Rule 16
conference or issuance of scheduling order.
Rule 26(a) disclosures of ESI
At or w/in 14 days of 26(f) conference unless a different
schedule per stipulation or order.
Rule 16 Conference Order
ASAP but at least w/in 90 days of appearance of
defendant or 120 days from service of complaint.
Rule 26(f) Meet and Confer
Discuss “any issues relating to preserving
“changes in the timing, form or requirement for
disclosures under Rule 26(a)”
“[A]ny issues” relating to ESI including the “form
or forms” of production.
New Form 35 for report to court.
Consider bringing a consultant/expert.
Rule 26(a) Initial Disclosures
May need to include e-evidence custodian(s);
might well be an ISO.
26(a)(1)(B)—”a copy of, or a description by
category of, all documents, electronically
stored information….that the disclosing party
may use to support its claims or defenses”
Rule 26(a); Sanctions
If fail to “make a disclosure under Rule
26(a), any other party may” move to compel
and for “appropriate sanctions”. Rule
May not be “permitted to use” the
undisclosed information “at a trial, at a
hearing, or on a motion”. Rule 37(c)(1).
Rule 16 Conference
Per Advisory Committee, Court is to start w/
26(f) Report of Counsel.
Order is to include “provisions for disclosure
or discovery of” ESI. Rule 16(b)(5).
Order may include “any agreements the
parties reach for asserting claims of privilege
or of protection of trial-preparation material
after production.” Rule 16(b)(6).
N.D. Cal. Civil Local Rule 16-9 requires a
“Steps taken to preserve evidence relevant to the
issues reasonably evident in the action, including
interdiction of any document-destruction
program and any ongoing erasures of e-mails,
voice-mails, and any other electronically-stored
Duties of Litigation Counsel
Communicate discovery obligations to client
Identify sources of discoverable information
Speak directly with key players in litigation as well as
Put in place a litigation hold
Reiterate instructions for litigation hold and monitor
Call for employees to produce copies of e-evidence
Arrange for segregation and safeguarding of archival
media (backup tapes) (Zubulake V, 229 F.R.D. 422
Potential Role(s) of ISOs
Consultant (How do your systems work?)
Informal Advice; Attend 26(f) session or 16(b)
Persons Most Knowledgeable (PMK)
Design/Implement Litigation Hold; Search
What Should You Explain to
Discuss Email System
Hardware, Software, Versions, Location, etc.
Discuss File Servers
Hardware, Software, Versions, Location, etc.
O/S, Recent Upgrades, Applications, Versions
Blackberry, Treo, Palm, etc.
Talking to Your Lawyers, Part
Capable of Litigation Holds?
Working from home
Special Problems with Voice Mail
Voice mail typically Not under Your Direct
Contact 3rd-Party Vendor ASAP
Secure hold on Voice Mails for “Key
Two-Tier Approach; Rule
“A party need not provide discovery of [ESI]from sources
that the party identifies as not reasonably accessible”
Committee note states that fact that archived data expensive
to access does not mean don’t have to preserve back-up
Demanding party can motion for production if value
outweighs burden taking into account amount in
controversy, parties’ resources, issues in case and
importance of the proposed discovery.
States of Data: Cheap to Expensive
Active data ($)
System data ($)
Backup tapes ($$$)
Deleted and altered files ($$$$)
Legacy data ($$$$$)
Budget Issues: Costs for Managing
$250-500 per hard drive or backup tape
$2,000-3,000 per server
Cull and Search for Relevant Data using Tech Tools
$1,800 per hard drive; more for backup tapes.
$450 per e-mail box
Produce Relevant Data
$750 per hard drive to prepare data for production in proper format
Convert data to litigation support repository for privilege
$4 per Megabyte plus $.10/page for Bates numbering and tiffing the
Practical Adjustments: Form(s) of
FRCP 34(b) authorizes demanding party to
“specify the form or forms in which [ESI] is
to be produced”; subject to challenge.
Per Advisory Note, can specify different
forms for spreadsheets and documents.
Metadata and Why It May Be
Important in a Lawsuit
Classic e-mail metadata fields
From, To, Subject, Date, cc, bcc, Text of email
Date and time e-mail and/or attachment opened
50-60 other types of fields are available
Embedded data (e.g., Excel formulas, Word
Processing prior versions)
Expensive to manage and produce; relevance
depends on the nature of your case.
Typical Forms of Production
Native Format – ESI is produced as it was
maintained and used; contains metadata.
Quasi-Native – ESI is produced in a format
similar to, but not the same as, the format in
which it was maintained and used.
Forms of Production, Part 2
Quasi-Paper – ESI is converted to image
files, typically TIFF or PDF; meta data and
full text are extracted.
Quasi-Paper Hybrid – Meta data and text are
extracted with a link to the native file.
What do you really need?
Be careful what you ask for. . .
Rule 37: “Shallow Safe
FRCP 37(f) provides that “absent exceptional
circumstances, a court may not impose
sanctions…[for ESI]… lost as a result of the
routine, good-faith operation of an electronic
Good faith per Committee Note includes
retention under common law, etc. and
existence of effective litigation hold.
Retention Obligation: Practice
Normal business destruction will not yield
sanctions under FRCP.
But Improper Destruction Creates Major
Risks for Your Agency.
Written Litigation Hold Policies are Highly
What is “spoliation”?
“the destruction or significant alteration of
evidence, or the failure to
preserve…evidence in pending or reasonably
foreseeable litigation.” West v. Goodyear,
167 F.3d 776,779 (2nd Cir.1999)
contra spoliatorem omnia proesumuntur.
Black’s Law Dictionary4th
Sources of Duty to Preserve
Knew or should have known of possible
Specific statutes, e.g. Sarbanes-Oxley; SEC
When Does Duty Attach?
Based on common law “knew or should have
When Product Designed. Carlucci, 102 F.R.D. 472
When Complaints Received. Remington, 836 F.2d 1104 (8th
When litigation suspected. Zubulake IV, 220 F.R.D. 212
When major accident occurs. Union Pac. R.R., 2004
U.S.App.LEXIS 6 (8th Cir.2004)
Preservation of Metadata May Be
Relevance of metadata depends on the case.
Burden of disclosing metadata on the
producing party. Williams v. Sprint, 2005 U.S.
Dist. Lexis 29882 (D.Md. 11/22/05)
Discuss at 16(b) conference.
“Most potent” is the adverse inference
instruction. Cedars-Sinai, 18 Cal.4th 1, 11(1998)
Example: New CA standard instruction 205
reads: “You may consider whether one
party intentionally concealed or destroyed
evidence. If you decide that a party did so,
you may decide that the evidence would
have been unfavorable to that party.”
A Few Examples
Leon v. IDX (9th Cir. 2006) 464 F.3d 951
(files deleted from laptop; dismissal)
U.S. v. Gordon (9th Cir.2004) 393 F.3d 1044
(use of “Evidence Eliminator to scrub drive;
pay costs and conviction affirmed)
In re Napster (N.D.Cal. 10/25/06) 2006 WL
3050864 (deletion of e-mail; adverse
World Courier v. Barone (N.D.Cal., No. C 06-
3072 THE, 4/13/07) (destruction of hard drive in IP case by
non-party husband; adverse inference instruction, costs;
relies on Residential Funding v. DeGeorge Fin. (2d Cir.
2002) 306 F.3d 99, 105)
People v. Hanson Building Materials (Contra
Costa County, No. MSC04-00424, 5/3/07) (Failure to retain
e-mail; CA state agency ordered to pay $79K in fees/costs +
adverse inference instruction; writ pending)
Litigation Hold Requirement:
Policy and Implementation
Create Policy to:
Determine When Hold is to be Imposed
Define what is to be preserved
ID key players who are involved
ID relevant records/docs/systems/computers
Contact and interview all key players
Will metadata be material? A forensics snapshot?
Will legacy data or backup media need to be preserved?
When do we need an outside expert?
Litigation Hold Procedures:
Training and Follow-up
Meetings and regular reminders
Determine if staff requires further clarification
Document the process
Sedona Guidelines (sedonaconference.com)
Michael Arkfeld ,Electronic Discovery and
Evidence (All AGO libraries)
BNA, Digital Discovery and E-Evidence
FIOS.com; applieddiscovery.com; Note webinars.
E-Discovery Presents Serious Risks to Your Agencies.
ISOs Will Have Important Roles in Future Litigation
Need to Partner Early with your CIO, the AG and your
General Counsel’s Office.
Need for Standards and Guidelines (Which You Should
Thanks and Questions