e-Discovery for Dummies®

Table of Contents


Who Should Read This Book?

About This Book

What You’re Not to Read

Foolish Assumptions

How This Book Is Organized

Part I: Examining e-Discovery and ESI Essentials

Part II: Guidelines for e-Discovery and Professional Competence

Part III: Identifying, Preserving, and Collecting ESI

Part IV: Processing, Protecting, and Producing ESI

Part V: Getting Litigation Ready

Part VI: Strategizing for e-Discovery Success

Part VII: The Part of Tens


normals Used in This Book

Where to Go from Here

Part I: Examining e-Discovery and ESI Essentials

Chapter 1: Knowing Why e-Discovery Is a Burning Issue

Getting Thrust into the Biggest Change in the Litigation

New rules put electronic documents under a microscope

New rules and case law expand professional responsibilities

Distinguishing Electronic Documents from Paper Documents

ESI has more volume

ESI is more complex

ESI is more fragile

ESI is harder to delete

ESI is more software and hardware dependent

Viewing the Litigation Process from 1,000 Feet

Examining e-Discovery Processes

Creating and retaining electronic records

Identifying, preserving, and collecting data relevant to a legal matter

Processing and filtering to remove the excess

Reviewing and analyzing for privilege

Producing what’s required

Clawing back what sneaked out

Presenting at trial

Chapter 2: Taking a Close Look at Electronically Stored Information (ESI)

Spotting the ESI in the Game Plan

Viewing the Life of Electronic Information

Accounting for age

Tracking the rise and fall of an e-mail

Understanding Zubulake I

Taking the two-tier test

Preserving the Digital Landscape

Facing Sticker Shock: What ESI Costs

Estimating hard and hidden costs

Looking at the costs of being surprised by a request

Chapter 3: Building e-Discovery Best Practices into Your Company

Setting Up a Reasonable Defensive Strategy

Heeding judicial advice

Keeping ESI intact and in-reach

Braking for Litigation Holds

Insuring a stronghold

Getting others to buy-in

Holding on tight to your ESI

Putting Best Practices into Place

Forming Response Teams

Putting Project Management into Practice

Tackling the triple constraints

Managing the critical path

Maintaining Ethical Conduct and Credibility

Par t II: Guidelines for e-Discovery and Professional Competence

Chapter 4: The Playbook: Federal Rules and Advisory Guidelines

Knowing the Rules You Must Play By

Deciphering the FRCP




FRCP 33 and 34

Applying the Rules to Criminal Cases

F.R. Crim. P. Rule 41

F. R. Crim. P. Rule 16

F. R. Crim. P. Rule 17 and 17.1

Learning about Admissibility

Lessening the Need for Judicial Intervention by Cooperation

Limiting e-Discovery

Finding Out About Sanctions

Rulings on Metadata

Getting Guidance but Not Authority from Sedona Think Tanks

Collecting the Wisdom of the Chief Justices and National Law Conference

Minding the e-Discovery Reference Model

Following the Federal Rules Advisory Committee

Chapter 5: Judging Professional Competence and Conduct

Making Sure Your Attorney Gives a Diligent Effort

Looking at what constitutes a diligent effort

Searching for evidence

Producing ESI

Providing a certification

Avoiding Being Sanctioned

FRCP sanctions

Inherent power sanctions

Knowing the Risks Introduced by Legal Counsel

Acting bad: Attorney e-discovery misconduct

Relying on the American Bar Association and state rules of professional conduct

Learning from Those Who Gambled Their Cases and Lost

Policing e-Discovery in Criminal Cases

Par t III: Identif ying, Preser ving, and Collecting ESI

Chapter 6: Identifying Potentially Relevant ESI

Calling an e-Discovery Team into Action

Clarifying the Scope of e-Discovery

Reducing the Burden with the Proportionality Principle

Proportionality of scale

Negotiating with proportionality

Mapping the Information Architecture

Creating a data map

Overlooking ESI

Describing data retention policies and procedures

Proving the reasonable accessibility of ESI sources

Taking Lessons from the Mythical Member

Chapter 7: Complying with ESI Preservation and a Litigation Hold

Distinguishing Duty to Preserve from Preservation

Following The Sedona Conference

The Sedona Conference WG1 guidelines

Seeing the rules in the WG1 decision tree

Recognizing a Litigation Hold Order and Obligation

Knowing what triggers a litigation hold

Knowing when to issue a litigation hold

Knowing when a hold delay makes you eligible for sanctions

Accounting for downsizing and departing employees

Throwing a Wrench into Digital Recycling

Suspending destructive processes

Where do you put a terabyte?

Implementing the Litigation Hold

Documenting that custodians are in compliance

Rounding up what needs to be collected

Judging whether a forensics-level preservation is needed

Chapter 8: Managing e-Discovery Conferences and Protocols

Complying with the Meet-and-Confer Session

Preparing for the Meet-and-Confer Session

Preservation of evidence

Form of production

Privileged or protected ESI

Any other issues regarding ESI

Agreeing on a Timetable

Selecting a Rule 30(b)(6) Witness

Finding Out You and the Opposing Party May Have Mutual Interests

Par t IV: Processing, Protecting, and Producing ESI

Chapter 9: Processing, Filtering, and Reviewing ESI

Planning, Tagging, and Bagging

Taking a finely tuned approach

Finding exactly what you need

Stop and identify yourself

Two wrongs and a right

Learning through Trial and Error

Doing Early Case Assessment

Vetting vendors

Breaking Out the ESI

Crafting the Hunt

Deciding on filters

Keyword or phrase searching


Concept searching

Heeding the Grimm roadmap

Sampling to Validate

Testing the validity of the search

Documenting sampling efforts

Doing the Review

Choosing a review platform

How to perform a review

Chapter 10: Protecting Privilege, Privacy, and Work Product

Facing the Rising Tide of Electronic Information

Respecting the Rules of the e-Discovery Game

Targeting relevant information

Seeing where relevance and privilege intersect

Managing e-discovery of confidential information

Listening to the Masters

Getting or Avoiding a Waiver

Asserting a claim

Preparing a privilege log

Responding to ESI disclosure

Applying FRE 502 to disclosure

Leveling the Playing Field through Agreement

Checking out the types of agreements

Shoring up your agreements by court order

Chapter 11: Producing and Releasing Responsive ESI

Producing Data Sets

Packing bytes

Staging production

Being alert to native production motions

Redacting prior to disclosure

Providing Detailed Documentation

Showing an Unbroken Chain of Custody

Keeping Metadata Intact

Part V: Get ting Litigation Ready

Chapter 12: Dealing with Evidentiary Issues and Challenges

Looking at the Roles of the Judge and Jury

Qualifying an Expert

Getting Through the Five Hurdles of Admissibility

Admitting Relevant ESI

Authenticating ESI

Self-authenticating ESI

Following the chain of custody

Authenticating specific types of ESI

Analyzing the Hearsay Rule

Providing the Best Evidence

Probing the Value of the ESI

Chapter 13: Bringing In Special Forces: Computer Forensics

Powering Up Computer Forensics

Knowing when to hire an expert

Knowing what to expect from an expert

Judging an expert like judges do

Doing a Scientific Forensic Search

Testing, Sampling, and Refining Searches for ESI

Applying C-Forensics to e-Discovery

Following procedure

Preparing for an investigation

Acquiring and preserving the image

Authenticating with hash

Recovering deleted ESI

Analyzing to broaden or limit

Expressing in Boolean

Producing and documenting in detail

Reinforcing E-Discovery

Fighting against forensic fishing attempts

Fighting with forensics on your team

Defending In-Depth

Par t VI: Strategizing for e-Discovery Success

Chapter 14: Managing and Archiving Business Records

Ratcheting Up IT’s Role in Prelitigation

Laying the cornerstone of ERM

Pitching your tent before the storm

Telling Documents and Business Records Apart

Designing a Defensible ERM Program

Designing by committee

Starting with the basics

Getting management on board with your ERM program

Crafting a risk-reducing policy

Punching up your e-mail policy

Building an ERM Program

Kicking the keep-it-all habit

Doing what you say you are

Getting an A+ in Compliance

Chapter 15: Viewing e-Discovery Law from the Bench

Examining Unsettled and Unsettling Issues

Applying a reasonableness standard

Forcing cooperation

Looking at what’s reasonably accessible

Determining who committed misconduct

Exploring the Role of the Judge

Actively participating

Scheduling conferences

Appointing experts

Determining the scope of costs

Chapter 16: e-Discovery for Large-Scale and Complex Litigation

Preparing for Complex Litigation

Ensuring quality control

Getting a project management process in place

Proving the merits of a case by using ESI

Educating the Court about Your ESI

Using summary judgment and other tools

Employing an identification system

Form of production

Creating document depositories

Avoiding Judicial Resolution

Determining the Scope of Accessibility

Doing a good-cause inquiry


Getting Help

Partnering with vendors or service providers

Selecting experts or consulting companies

Chapter 17: e-Discovery for Small Cases

Defining Small Cases that Can Benefit from e-Discovery

Theft of proprietary data and breaches of contract

Marital matters

Defamation and Internet defamation

Characterizing Small Matters

Keeping ESI out of evidence

Shared characteristics with large cases

Unique characteristics and dynamics

Proceeding in Small Cases

Curbing e-Discovery with Proportionality

Sleuthing Personal Correspondence and Files

Par t VII: The Part of Tens

Chapter 18: Ten Most Important e-Discovery Rules

FRCP 26(b)(2)(B) Specific Limitations on ESI

FRCP 26(b)(5)(B) Protecting Trial-Preparation Materials and Clawback

FRCP 26(a)(1)(C) Time for Pretrial Disclosures; Objections

FRCP 26(f) Conference of the Parties; Planning for Discovery

FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections

FRCP 30(b)(6) Designation of a Witness

FRCP 34(b) Form of Production

FRCP 37(e) Safe Harbor from Sanctions for Loss of ESI

Federal Rules of Evidence 502(b) Inadvertent Disclosure

Federal Rule of Evidence 901 Requirement of Authentication or Identification

Chapter 19: Ten Ways to Keep an Edge on Your e-Discovery Expertise

The Sedona Conference and Working Group Series

Discovery Resources

Law Technology News

Electronic Discovery Law

E-Discovery Team Blog

LexisNexis Applied Discovery Online Law Library

American Bar Association Journal

Legal Technology’s Electronic Data Discovery

Supreme Court of the United States

Chapter 20: Ten e-Discovery Cases with Really Good Lessons

Zubulake v. UBS Warburg, 2003–2005; Employment Discrimination

Qualcomm v. Broadcom, 2008; Patent Dispute

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008; Copyright Infringement

Doe v. Norwalk Community College, 2007; the Safe Harbor of FRCP Rule 37(e)

United States v. O’Keefe, 2008; Criminal Case Involving e-Discovery

Lorraine v. Markel American Insurance Co., 2007; Insurance Dispute

Mancia v. Mayflower Textile Services Co., et al., 2008; the Duty of Cooperate and FRCP Rule 26(g)

Mikron Industries Inc. v. Hurd Windows & Doors Inc., 2008; Duty to Confer

Gross Construction Associates, Inc., v. American Mfrs. Mutual Ins. Co., 2009; Keyword Searches

Gutman v. Klein, 2008; Termination Sanction and Spoliation

Chapter 20: Glossary


About the Authors

Linda Volonino (PhD, MBA, CISSP, ACFE) entered the field of computer forensics and electronic evidence in 1998 with a PhD and MBA in information systems (IS). She’s been a guest lecturer on computer forensics and e-discovery at the State University of New York at Buffalo School of Law, and to attorneys and state Supreme Court justices as part of Continuing Legal Education (CLE). She’s a computer forensics investigator and e-discovery consultant with Robson Forensic, Inc. working for plaintiff and defense lawyers in civil and criminal cases. In addition to standard e-mail and e-document evidence, she’s consulted on cases involving electronically stored information (ESI) from social media sites and handheld devices as part of e-discovery.

Linda’s coauthored Computer Forensics For Dummies and four textbooks: two on information technology, one on information security, and one on computer forensics. She’s published in academic, industry, and law journals on e-discovery and the need for electronic records management as part of prelitigation readiness. She’s a senior editor of Information Systems Management and was Program Chair for the 2009 Conference on Digital Forensics, Security and Law. Linda can be reached via

Ian J. Redpath holds a Bachelor’s degree from Hillsdale College, a JD from the University of Detroit, and an LLM from the University of Wisconsin. He has 34 years experience in litigation and has been admitted to practice in the states of Michigan, Wisconsin, and New York as well as the Federal and Tax Courts. Ian is also a former prosecuting attorney. He has published numerous articles on contemporary issues and topics and coauthored several books.

Ian has taught American Jurisprudence at the University of Clermont-Ferrand School of Law in France and lectures regularly on American Law at the prestigious MGIMO in Russia. He has extensive national and international experience in developing, writing, and presenting continuing education programs.

Currently, Ian is the principal in the Redpath Law Offices with offices in Buffalo and New York City where he specializes in criminal and civil litigation. He can be reached at


I would like to dedicate this book to my beautiful wife Liz, and children, Eric, Bridget, and Lauren who provide me with love, inspiration, and support.

– Ian Redpath

Authors’ Acknowledgments

Our Project Editor Rebecca Senninger kept us moving forward and doing our best work. Thanks Rebecca! We’re also most grateful to Amy Fandrei, Acquisitions Editor, for the expert guidance needed to write a techno-legal book that lawyers, managers, information technologists, and judges may use as a reference.

Special thanks to our hard-working copy editors Brian Walls, Virginia Sanders, and Heidi Unger and our technical editor Jake Frazier. We appreciate your feedback and suggestions for improving our chapters.

Publisher’s Acknowledgments

We’re proud of this book; please send us your comments at For other comments, please contact our Customer Care Department within the U.S. at 877-762-2974, outside the U.S. at 317-572-3993, or fax 317-572-4002.

Some of the people who helped bring this book to market include the following:

Acquisitions and Editorial

Project Editor: Rebecca Senninger

Acquisitions Editor: Amy Fandrei

Copy Editor: Brian Walls

Technical Editor: Jake Frazier

Editorial Manager: Leah Cameron

Editorial Assistant: Amanda Graham

Sr. Editorial Assistant: Cherie Case

Cartoons: Rich Tennant (

Composition Services

Project Coordinator: Sheree Montgomery

Layout and Graphics: Joyce Haughey, Mark Pinto

Proofreaders: Laura Albert, ConText Editorial Services, Inc.

Indexer: Sherry Massey

Special Help: Virginia Sanders, Heidi Unger

Publishing and Editorial for Technology Dummies

Richard Swadley, Vice President and Executive Group Publisher

Andy Cummings, Vice President and Publisher

Mary Bednarek, Executive Acquisitions Director

Mary C. Corder, Editorial Director

Publishing for Consumer Dummies

Diane Graves Steele, Vice President and Publisher

Composition Services

Debbie Stailey, Director of Composition Services


Electronic discovery gone wrong is kryptonite to a legal action, as many have learned since the amended Federal Rules of Civil Procedure (FRCP) took effect in December 2006. Now you may urgently want to learn about e-discovery (short for electronic discovery) but don’t know who to call, or even better, what to read. e-Discovery For Dummies is an end-to-end reference and tutorial written for litigators and jurists, corporate counsel and paralegals, information technology (IT) and human resources (HR) managers, executives and record librarians, and anyone who might file a lawsuit or be the recipient of one. For those not engaged in e-discovery now, the time is fast approaching when having a commanding knowledge of it is going to be vital to your career.

Who Should Read This Book?

e-Discovery For Dummies is for everyone needing an understanding of the e-discovery rules of procedure and the protections they provide, and how to position your case to be covered by those protections. IT, HR, records managers, and others who might be responsible for e-litigation readiness or electronic records management should start reading this book as soon as possible.

CPAs who provide forensic information and damage calculations for clients need to be aware of e-discovery issues, particularly the liability implications of metadata contained in client files. Inadvertent disclosure of metadata in client files could remove legal protections. For example, if a client’s metadata is disclosed accidentally, then it may enable opponents to use that metadata against the client’s interests.

Insurance companies are enormously concerned and interested in e-discovery. Insurers are like the father of the bride — even though no one pays much attention to him at the event, he pays much of the bill. So insurance companies have one of the largest stakes in e-discovery.

If you know nothing about e-discovery or want to sharpen your litigation strategy, this book’s for you.

About This Book

e-Discovery For Dummies is an introduction to the hottest legal issue. The e-discovery rules expand the definition of what’s discoverable to include electronically stored information (ESI), require parties to discuss ESI during initial meet-and-confer conferences, may provide a safe harbor against sanctions for routine deletion of ESI, and may protect against a privilege waiver for inadvertent disclosure.

The rulings and opinions of various judges provide invaluable lessons that you and your lawyers can learn from this book, much cheaper than learning through experience. We cover the Advisory Guidelines to better prepare you to understand the process of obtaining, protecting, and presenting ESI. You learn how Federal Rule of Evidence 502, enacted in 2008, provides relief for inadvertent disclosure of items privileged under the attorney-client relationship or protected as work product.

Every company and agency needs to be litigation-ready and know how to proceed when requesting or responding to e-discovery agreements. Preparing for litigation implies that all of these new data repositories must be included in a data and records retention policy and program. Security executives involved in litigation could be called upon to describe their company’s records retention policy and be knowledgeable of the systems used to manage their department’s data. Lacking a credible program or failing to adhere to the policy is indefensible in court and might expose your company to legal risk.

It’s an honest presentation of the issues and challenges, strengths and weaknesses of e-discovery.

What You’re Not to Read

Depending on your background in law, criminal justice, investigative methods, or technology, you can skip the stuff you already know. If you’re the victim, the accused, the plaintiff, or the defendant, feel free to skip sections that don’t relate directly to your case or predicament.

Foolish Assumptions

We make a few conservative assumptions, even though we’re serious about issues and advice we offer. We assume that:

You need to understand e-discovery.

You use and have a basic understanding of e-mail, the Internet, and digital devices.

You have an interest in learning from the experience of others.

You are considering expanding your career to include e-discovery.

You realize that this book is not legal advice.

How This Book Is Organized

This book is organized into seven parts. They take you through the basics of e-discovery, ESI, rules, advisories, and litigation readiness. They cover the phases from preservation through production. Specialty issues, such as e-discovery in large cases and small cases and computer forensics, are covered. For a more detailed overview of topics, check out the following sections.

Part I: Examining e-Discovery and ESI Essentials

The book starts by introducing you to the e-discovery laws that have changed the responsibilities of legal and information technology (IT) professionals. You read why every lawsuit and most civil cases can and will involve e-discovery and the accessibility of ESI (as well as ESI that’s not reasonably accessible).

You learn that most cases are settled as a result of e-discovery because that’s when both sides learn the strengths and weaknesses of their position relative to that of their opposition.

Part II: Guidelines for e-Discovery and Professional Competence

This part gives you an in-depth understanding of the e-discovery amendments, The Sedona Conference advisory guidelines often used by the bench in settling disputes, and the expected standards of legal competence and conduct. Although the Federal Rules and advisories guide e-discovery, the competencyof counsel turns them into a winning edge. We present the Electronic Discovery Reference Model (EDRM) as it relates to processes of preserving, collecting, processing, reviewing, and producing ESI.

Part III: Identifying, Preserving, and Collecting ESI

In this part, we cover the first phases of e-discovery, namely the identification, preservation, and collection of ESI. These are the steps to take when a lawsuit is filed. You learn what to do when faced with an e-discovery request and the countdown to the meet and confer with opposing counsel within 99 days.

We discuss the meet-and-confer conference in detail. Being prepared to negotiate during this conference can make the difference between a quick settlement and a prolonged battle. There are no re-negotiations or bailouts for bad agreements.

Part IV: Processing, Protecting, and Producing ESI

In the fourth part, we cover the next set of phases from processing of ESI through review, filtering, and the production of responsive, nonprivileged, redacted ESI. You read many examples of motions, mistakes, and monetary sanctions that could have been avoided.

All ESI issues might arise during these phases, including metadata, privilege, work product, keyword searches, and filtering by keyword, concept, and custodian. This part details the review process, which is the most expensive phase in e-discovery.

Part V: Getting Litigation Ready

In this fifth part, we examine the admissibility and relevance rule of electronic evidence, and forensics methods to recover and preserve it. Rules of evidence are subject to judgment, as are the federal rules of civil procedure. This part also covers advanced e-discovery strategies and issues, some of which are the use of experts, sanctions, depositions, and cost-shifting. We explain methods to authenticate evidence in civil trials. One indisputable duty is to keep the chain of custody intact because you can’t repair tainted electronic evidence.

Part VI: Strategizing for e-Discovery Success

In the sixth part, you learn about archiving electronic records, which differs from data backups. We discuss electronic records management (ERM) that’s necessary to be ready to respond to a request for ESI. The focus shifts from internal to external. We discuss e-discovery from the perspective of the judges and their powers to encourage parties to practice good faith and dissuade gamesmanship.

For large-scale, high-stakes, or unusual cases, you learn the value of partnering with vendors or litigation services companies to augment your expertise. For small cases, ESI may be the most convincing witness.

Part VII: The Part of Tens

Every For Dummies book has The Part of Tens, and we give you three of them. The first one covers the must-know rules. The second focuses on keeping you up-to-date. The third one focuses on the courts and career-advancing lessons.


We include an e-discovery dictionary of legal and technical terms used throughout this book.

normals Used in This Book

Useful clues represented by normals highlight especially significant issues in this book. The following paragraphs (with their representative normals) give you an idea of what to expect when you see these normals.

tip.eps Time is money, and mistakes waste even more. Save yourself time, effort, and the pain of explaining to the court why you did or did not do something that you should or should not have done. These normals flag paragraphs that can be gold mines of information or land mines to sidestep.

acloserlook_ediscovery.eps Litigation that spans several years and involves many motions are not amenable to short summaries. The same is true of judges’ opinions in cases where litigants or their lawyers made more than a fair share of mistakes. These normals provide an in-depth look at real-world cases and issues — both good and bad.

warning_bomb.epsSanctions ahead! We flag the land mines with this normal to draw your attention to what the rules mandate and what judges expect you to do correctly.

remember.eps A heads-up and FYI normal on concepts to keep in mind.

Where to Go from Here

In this book, you find the basics of e-discovery rules, procedures, case law, and litigation readiness, but this is an exploding topic. You can use this book as a reference, how-to guide, and path to lifelong learning. Electronic discovery is not a passing phase. Electronic discovery case law is evolving. Litigants are sliding down the learning curve, which may significantly reduce time, costs, errors, and sanctions. When you know the basics and tactics, you have the foundation to expand your knowledge.

If you’re looking for a handy reference to the e-discovery steps or the Federal Rules of Civil Procedure and Federal Rules of Evidence, check out the cheat sheet at

Part I

Examining e-Discovery and ESI Essentials


In this part . . .

This part presents e-discovery in digestible chunks so you understand the essentials of e-discovery at its simplest level. We explain e-discovery laws that have re-written the responsibilities of legal and information technology (IT) professions in Chapter 1. Legal and IT — two groups most unlikely to speak a common language or operate at the same tempo — are most responsible for e-discovery success. Also in Chapter 1, you learn that all electronic content that we create, send, post, search, download, or store has a legal name: electronically stored information, or ESI. We cover why this ESI universe is subject to discovery and cite cases where failing to preserve and produce ESI cost litigants serious amounts of money and essentially gutted their cases.

In Chapter 2, you learn why working with ESI is messy even under the best circumstances. You’re introduced to the relationship between the age of ESI and the ability to reach out and retrieve it from its storage media. ESI can be online, offline, gone, or somewhere in between. The ability to reach and retrieve ESI determines its accessibility, which in turn influences its discovery status from the perspective of judges (or the bench). You find out why it’s best to resolve your ESI disputes with the opposing side rather than turn those disputes over to the bench. Also in Chapter 2, we foreshadow the fate of enterprises unprepared for e-discovery. You start to understand that investing in ESI retention and management tools to get into litigation-ready shape is much less risky than whining about why it’s too burdensome to respond to an ESI request. Chapter 3 continues these lessons.

Prelitigation best practices get you into a strong defensive position, as you read in Chapter 3. You learn one of the most crucial lessons — that most cases are settled as a result of e-discovery because it’s only then that both sides learn the strengths and weaknesses of the other’s case. You don’t go all in with no chance of winning, at least not more than once. When you do e-discovery right, you have a powerful offensive or defensive weapon.

“We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery.”

—Judge Shira A. Scheindlin (2009), e-discovery rock-star judge