Electronic Data Records Law | How to Win E-Discovery

Native Format Electronically Stored Information?

Collection, Production Tactics | Ordinarily Maintained or Reasonably Usable Form

In eDiscovery, ESI can be produced in many forms.  For both the requesting party and the producing party, the form chosen can impact strategic issues like cost, search-ability and ease of manipulation.  Form of production can be a contentious issue between litigants.

California’s new electronic discovery rules (Assembly Bill 5 - amendments to the California Rules of Civil Procedure) set a framework for negotiating the form of ESI production.  

Amended Section 2031.030(a)(2) of the Code of Civil Procedure provides:  “A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.”  [Notice the words "testing" and "sampling". 

 They are a nod to the future of eDiscovery, where one-by-one review of records is impractical, so statistical methods are used instead.] 

Further, amended Section 2031.280(d) provides:  “Unless the parties otherwise agree or the court otherwise orders, the following shall apply: (1)  If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.”

Like the FRCP, this framework leaves lots of room for negotiation and disagreement.  

“When collecting a unit of ESI (such as an e-mail) within an organization, we might find it in more than one format,” says Greg Smith, eDiscovery specialist at Messaging Architects.  “It might be in network backup.  It might be an e-mail management system like Groupwise.  It might be in an archival system like M+Archive.  It might be in other formats and locations too.”

Leading courts like Williams v. Sprint/United have spoken of production of ESI in its “native format.” For courts like Williams, the rough idea is that a unit of ESI should come with its original meta data and structure, so as to enable better insight into what the ESI was and what it meant.  

According to Greg Smith, “The concept of native format might mean different things for different circumstances in an enterprise information system.  For example, the structure and metadata applicable to a given e-mail might be different depending on whether the email is collected from an electronic mail system like Microsoft’s Exchange or from an archive appliance like Symantec’s Enterprise Vault.  It’s my job to help trial counsel understand the different possibilities, evaluate options and then document/explain the format decisions and actions that are executed in ESI collection and production.”

–Benjamin Wright

Mr. Wright is an affiliate of messagingarchitects.com, experts in eDiscovery services.   Here is an ARMA podcast describing Messaging Architects' work in e-mail archiving, including its workshop for development of an email records policy in an enterprise.

Email Recovery | Network Back-up

E-mail Database Search and Forensics

Archival | What is a Subpoena?

As litigation and other requests for e-mail from backup tapes grow more frequent, an enterprise may be wise to restore, consolidate and archive all of its old e-mail held in backup.

Historically organizations did not think of e-mail as an asset worthy of preservation.  They did not archive it, though copies would end up in network backup.  

But experience has taught that e-mail evidence can be critical to defense of a lawsuit or enforcement of a contract.  Alternatively its disclosure might be required under a subpoena (see definition below), a court order, an administrative summons, an IRS tax audit or a freedom of information act request (FOIA).  Further, e-mail might be needed in an investigation (led internally or by outside criminal prosecutors) of a bribe, a kickback, an overcharge, tax evasion or a embezzlement of money, or it might be needed for an audit of alleged misallocation of funds. 

Archival

Greg Smith of Messaging Architects observes that repeated requests for e-mails from backup can warrant a change of thinking in the IT department. “While most backup software deals very efficiently with individual electronic records, it cannot provide the same level of access to email. This is because enterprise email exists as a record within a database (such as for Groupwise or Microsoft Exchange).  The database must be restored in its entirety and searched in its entirety in order to ascertain the contents of the database. With database sizes exceeding 100GB and scores if not hundreds of tapes, the cost to restore and search the tapes can be considerable. Recovering records for selective users and dates may satisfy the current discovery requirement, but with each successive lawsuit, or changes in discovery parameters for an existing lawsuit, restoration from tape can become a recurring financial liability.”

Greg continues, “The practical solution is to remove the information from tape permanently and place it in an electronic records format where information can be retained and managed as individual records and not conglomerates of information.  In such a format, individual email records can be sorted by user or date.”

Restored records can be archived in an open (non-proprietary) format, such as XML, which enables searchers to tap an ever-expanding array of search and forensics tools.  XML may or may not qualify as "native format" as that term is sometimes used in court decisions, though XML may be a more useful format than whatever the native format was.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, experts in e-discovery and consultants in e-mail investigations.

Post Script  What is a subpoena?  A subpoena is a legal demand that someone turn over information or evidence. Commonly the laws of litigation enable a party to subpoena other parties for records or other evidence. Sometimes the law also invests the power to subpoena in an official who conducts investigations, such as a government auditor or an inspector general. If a party abuses the power to subpoena, by demanding irrelevant records or by issuing a demand with no regard for the cost of compliance, a court may sanction the issuer of the subpoena.

Recordkeeping for Social Networking Managers

Social Networks for Official, Commercial & Employment Transactions

By law, employers generally need to keep records of employment decisions.  So when the boss conveys a pink slip by way of Facebook, the employer needs a legal record of it.

What?  Fire someone by Facebook . . . a posting on a wall?  Would a manager do that?  Yes.  A spa in Canada (British Columbia) used Facebook to notify Crystal Bell of her job termination.

The history of electronic messaging tells a story about business records.  As each new form of message comes along, we initially doubt you can conduct business with such a flimsy thing.  Fax as a medium for transacting serious business?  No way, people thought in the early 1980s.  But as time passed –- and as court cases enforced fax contracts -- we grew more comfortable with fax as a business tool.  Today, fax is considered a responsible, even conservative medium for transmitting signed agreements and binding business records. 

Then, when electronic mail came into the workplace, conventional wisdom dismissed it.  Convention said e-mail was not a business record, said it could not (conveniently) be authenticated with a signature, and said it should be deleted quickly like so much water-cooler chitchat.  But naturally business people embraced e-mail as a tool for making obligations and delegating authority.  Today we see the law giving enterprises growing reason to store e-mail as business records.

I predict the same process will unfold for collaborative (Web 2.0 and social network) media like instant message, Facebook, Twitter and Myspace.  Old-fashioned folks will try to ban these technologies as methods for conducting important business.  They will, initially, ignore them as records to be kept.

But the outcome of the story is inevitable.  Busy people (like the boss in BC) will use the new channels to hire, fire, negotiate, agree and so on.

The managers of records need to plan for capturing the records of Web 2.0.  Those records can become the subject of a subpoena, an IRS taxpayer audit, an administrative summons or an internal investigation or the source of exculpatory evidence in defense of lawsuits.