ediscovery and Digital Evidence Online Course The Convergence Between Law & Technology Instructor: Michael R. Arkfeld Dates February 26, 2014 to April 16, 2014 Day and Time of Online Sessions Wednesday 6:00PM ET 8:00PM ET 1
Welcome to the Electronic Discovery and Evidence Online Training Course! An unprecedented imposition of sanctions by the Courts has led to one of the most difficult competency periods in the practice of law. With the implementation of the amended federal rules, state rules and case law regarding electronic discovery and evidence legal professionals must respond and adapt to this changing legal environment. Changing technological issues such as social networking content creates new discovery targets or opportunity for discovery and must be addressed. The study of the convergence of technological concepts and the practice of law is a complex subject. This course is designed to provide the necessary foundation for understanding and applying technological concepts to the practice of law. This course will demand your time and effort in order to master the subject matter. To assist we have designed a pre and post test, on-demand instructional training, factual scenario, and a live online, session each week for two hours. In addition I will be available during this eight-week course to answer questions and discuss concepts with you either individually or in a group. The live, two hour online instruction during the week will be recorded for later playback. This unique ediscovery online instruction brings together some of the most distinguished experts in ediscovery. Included in your tuition are the most recent edition of the most comprehensive and acclaimed publications in this area - Arkfeld on Electronic Discovery and Evidence, Best Practice Guides and model practice forms. Completion of the course will provide you a certification that you completed the course requirements. For attorneys, certifications are within the purview of each state licensing association and a certain designation cannot be awarded. My objective is to provide you the necessary instructional content, whether on-demand or online live sessions, to enable you to be able to competently discern and address the electronic information issues as they arise in your practice. My phone number is 602-993-1937 and my e-mail is michael@arkfeld.com. With warm regards, Michael Michael Arkfeld 2
Attendee Written and Online Readings The following content is to give you an overview of the course material available to you. You will not be expected to read all of this content during this course, but you need to be aware that it is available for future reference. Arkfeld, Michael Arkfeld on Electronic Discovery and Evidence (3rd. Ed.) (treatise) Ch. 1 - Electronic Information in Litigation Ch. 2 - Creation and Storage of Electronic Information Ch. 3 - Structure and Type of Electronic Information Ch. 4 - Computer Forensics, Experts and Service Bureaus Ch. 5 - Search, Technology and Cost Issues in Managing ESI Ch. 6 - Discovery and Production Process Ch. 7 - Court Procedural Rules and Case Law Ch. 7 - Appendix - State Cases and Rules Summary Ch. 8 - Admissibility of Electronic Evidence Glossary Appendix Checklists, Forms and Guidelines Arkfeld's Best Practices Guides Electronic Discovery and Evidence Ch. 1 - The Basics of Electronic Discovery Ch. 2 - Electronic Discovery Plan Ch. 3 - Requesting Electronic Information Ch. 4 - Responding to an Electronic Discovery Request Ch. 5 - Admission of Electronic Evidence Appendix A Amendments to the Federal Rules of Civil Procedure Appendix B Meet and Confer Planning Guide ESI Pretrial Discovery Ch. 1 - Overview of Electronic Discovery and Information Technology Ch. 2 - Preparing an Overall Plan and Strategy Ch. 3 - ESI Issues and Strategy Ch. 4 - Litigation Stages and Procedural Discovery Rules Appendix A: Amendments to the Federal Rules of Civil Procedure 3
IT Primer for Legal Professionals Ch. 1 - Overview of Information Technology (IT) and Electronic Discovery Ch. 2 - Characteristics & Forms of Electronically Stored Information (ESI Ch. 3 - IT Infrastructure: People, Hardware, Software and Networks Ch. 4 - ESI File System, Concealment and Types Ch 5 - ESI Sources and Locations Ch. 6 - Using Computer Technology to Search, Identify, Filter, Review, Produce and Present ESI Appendix: Information Technology Discovery Questions Legal Hold Ch. 1 - Overview of Legal Hold and Electronic Discovery Ch. 2 - Overview of Information Technology Ch. 3 - Legal Hold Readiness Plan Ch. 4 - Legal Hold Appendix A - Organization Legal Hold Procedures and Forms Manual Appendix B - Law Firm Legal Hold Procedures and Practice Forms Appendix C - Checklist - IT Systems and ESI Type, Storage and Locations Appendix D - Amended Federal Rules of Civil Procedure Companion CD-ROM ebook (contains all publications, cases and statutes, and model practice forms). It is suggested that the student load this on their computer. Publication Insert: Meet and Confer Planning Guide Checklists, Forms and Guidelines - located in appendix to treatise Includes Information Technology Discovery Questions Reference Material Abbreviations TREATISE Arkfeld on Electronic Discovery and Evidence BEST PRACTICE GUIDES Electronic Discovery and Evidence ESI Pretrial Discovery Strategy and Tactics Information Technology Primer for Legal Professionals Legal Hold ABBREVIATION EDE, BPG EDE, BPG Strategies, BPG IT Primer, BPG Legal Hold, 4
Other Optional Readings (others may be assigned as course progresses) Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 11 (2011), http://jolt.richmond.edu/v17i3/article11.pdf. Live, Online Classroom The platform and host for the online classroom will be provided to you prior to the beginning of the course. On-Demand Instructional Videos These on-demand instructional programs will be available on the ediscovery Education Center website (www.edec.com) after registering for the course. These videos will be available for all students for 12 months after the course has concluded. These prerecorded programs include: Information Technology for Legal Professionals Module Overview of Information Technology (IT) and Electronic Discovery Program #: IT01 This introductory session will provide an overview of the convergence of information technology and the practice of law. Creating, Storing and Retrieving Electronic Data and Understanding Directories, Files, File Formats and Forms Program #: IT02 This program studies how a computer creates, stores and retrieves ESI, organizational structure of a file system and the forms of ESI. ESI Characteristics, Terminology and Classifications Program #: IT03 This program provides an examination of the characteristics, classification and terminology of electronically stored information (ESI). ESI Types: Part 1 - Metadata and E-mail 5
Program #: IT04 This program will begin the examination of types of ESI including with a special focus on metadata and e-mail. ESI Types: Part 2 - ESI Types: Internet, Databases, Text, Spreadsheets, etc Program #: IT05 This program will continue focusing on different types of ESI including databases, Internet data including social networking information and many other ESI types. Computer Forensics: Destroying, Restoring, Concealing and Protecting ESI Program #: IT06 This program focuses on the methods a party may use to prevent disclosure or access to ESI. There are many ways to destroy, alter, restore, conceal and protect ESI. IT Infrastructure: People, Procedures and Technology Program #: IT07 This program is focused on the IT infrastructure of an organization and how computer systems and networks are managed by an organization. Storage Locations: Part 1 - Media, Devices, Networks and Servers Program #: IT08 This program begins an examination of a wide range of potential storage media, devices, and locations of electronically stored information (ESI). Special focus will be placed on media, devices, networks and servers. Storage Locations Part 2 - Cloud, Back-up System, Archival and Legacy Program #: IT9 This program continues the study of a ESI storage locations of electronically stored information (ESI). Special attention will be provided on Cloud, Back-up System, Archival and Legacy systems. Managing and Producing ESI: Technological, Search and Cost Issues Program #: IT10 In this program you will learn the benefits of managing ESI in an electronic format and using automated litigation support systems (online and offline) to manage, control and review ESI electronically. 6
ESI Pretrial Discovery: Critical Issues and Strategy and Tactics Module (Pretrial ) Nature of Claims, Scope of Discovery, Terminology and Classification Program #: Pretrial01 This program will focus on four major ediscovery areas: Nature of Claims, Scope of Discovery, Terminology and ESI Types and Storage. Legal Holds and Controlling Costs Program #: Pretrial02 This program will focus on the obligation of parties to preserve ESI when a "triggering" event occurs and the myriad of legal directives in instituting a legal hold to ensure ESI is not destroyed and controlling costs. Search Methodology and Protocol, Inspection of Computer Systems and Chain of Custody Program #: Pretrial03 This program will focus on three main topics: search method and protocol for ESI; inspection of computer systems and the "chain of custody" to ensure the authenticity of ESI and other foundational issues that could affect its admissibility. ESI Format Disclosure Requirements Program #: Pretrial04 In any case involving ESI there are several critical IT and legal issues that must be decided to determine in what format or "form or forms" ESI is produced and disclosed to the requesting party or in what format you will be receiving ESI. Privileged ESI, Nonwaiver Agreement and FRE 502 Program #: Pretrial05 In the context of electronic discovery, producing parties in turning over large amounts of data and computer files (including metadata) expose themselves to the risk of inadvertently disclosing protected work product or other privileged materials. Limitations on Discovery - Cost Allocation (Proportionality), Protective Orders. Burdensome and Relevancy Program #: Pretrial06 The focus of this session will be on the limitations and protections afforded litigants in ediscovery proceedings. Certification of Production Efforts Program #: Pretrial07 7
This program focuses on two main areas: certification of your discovery responses under FRCP 26(g) or similar state procedural rule; and under what circumstances is it necessary to certify your search methodology and protocol for the Courts. Spoliation and Sanctions Program #: Pretrial08 The Courts have issued an unprecedented number of sanctions based on the spoliation of ESI. This program will focus on the elements to establish the spoliation of ESI including culpability and relevance. 8
Course Curriculum The following are the live program dates and lessons for this ediscovery program. Within each lesson are listed the relevant on-demand videos and corresponding material in the publications pertaining to the lesson. February 26, 2014 - Wednesday Time: 6:00 PM ET Course Lesson 1: Course Overview, Overview of IT and ediscovery Overview of Information Technology (IT) and Electronic Discovery Instructor(s): Michael R. Arkfeld Objectives/Topics: This session will include, introductions, opening comments, introduction of class materials and online instruction, overview and a pre-assessment examination focusing on IT and ediscovery concepts. Instructions on taking the pre-assessment test will be provided ahead of the class. In addition, discussion will center around the meeting and confer planning guide and Information Technology Discovery Questions. Course Lesson 2: Determining Initial Legal Obligations - Legal Holds and Scope of Discovery (Part 1) Nature of Claims and Defenses Scope of Discovery Preservation Obligation and Litigation Hold Controlling Costs Instructor(s): Michael Arkfeld Objectives/Topics: This program will focus on four major ediscovery areas nature of claims, scope of discovery, legal hold and controlling costs. The "nature of claims" section will focus on the need to understand the claims or defenses in order to request or limit the relevant "electronically stored information" (ESI) that pertains to the matter. The "scope of discovery" will focus on the applicable procedural rules which limit the ESI that can be requested pursuant to discovery rules. In addition, the program will focus on different methods to determine the scope. The legal hold will focus on the obligation of parties to preserve ESI when a "triggering" event occurs and the myriad of legal directives in instituting a legal hold to ensure ESI is not destroyed. It will also introduce you to different methods of controlling costs. Assignments: 9
Required Reading: BPG Strategies 3.1, Nature of Claims and Defenses BPG Strategies 3.2, Scope of Discovery BPG Strategies 3.3, Terminology and Classification of ESI BPG Strategies 3.4, ESI Discovery Type and Storage BPG Strategies 3.5, Preservation Obligation and Litigation Hold BPG Strategies 3.6, Controlling Costs BPG Legal Hold, 4.3, Legal Hold Court Duties and Tasks (includes court directives, procedures and forms) Required Online Video instruction: Optional Readings: Pretrial 01 - Nature of Claims, Scope of Discovery, Terminology and Classification, and ESI Types and Storage Pretrial 02 - Legal Holds and Controlling Costs EDE treatise, 7.2(C), Definite Statement Fed. R. Civ. P. 12 EDE treatise, 7.4(F), Scope of Production - Rule 26(b)(1) EDE treatise, 7.9(A), Legal Hold March 5, 2014 - Wednesday Time: 6:00 PM ET Course Lesson 2: Determining Initial Legal Obligations - Legal Holds and Scope of Discovery (Part 2 - cont. from last week) Course Lesson 3: Understanding the Basics of Information Technology Instructor(s): Michael R. Arkfeld Computer Fundamentals: Creating, Storing and Retrieving ESI Computer File System (Directories, Files, and File Formats) and Forms ESI Characteristics, Terminology and Classifications Objectives/Topics: This session will include an overview of information technology and the electronic discovery process as well as beginning instruction in computer fundamentals including the creation, organization and forms of ESI. This lesson will also provide an examination of the characteristics, classification and terminology of electronically stored information (ESI). 10
Assignments: Required Reading: EDE treatise, Ch. 1 - Electronic Information in Litigation BPG IT Primer, Chapter 1, Overview of Information Technology (IT) and Electronic Discovery BPG IT Primer Chapter 2, Characteristics & Forms - "Electronically Stored Information" (ESI) BPG IT Primer 4.2 Directories, Files and File Formats BPG EDE Appendix B Meet And Confer Planning Guide and meet and confer pullout Review: Information Technology Discovery Questions (located on CD- ROM in the treatise under Appendix Checklists, Forms and Guidelines) Review David Devoted factual scenario Required Online Video instruction: IT01 - Overview of Information Technology (IT) and Electronic Discovery IT02 - Creating, Storing and Retrieving Electronic Data and Understanding Directories, Files, File Formats and Forms IT03 - ESI Characteristics, Terminology and Classifications Optional Readings: EDE treatise, Ch. 2, Creation and Storage of Electronic Information EDE treatise, Ch. 3, Structure and Type of Electronic Information EDE treatise, 5.3, ESI Forms and Disclosure Formats EDE treatise, 7.7(G), ESI Form(s) March 11, 2014 - Tuesday Due to the ASU-Arkfeld Conference beginning on Wednesday, March 12, this weekly session will either be held on Tuesday, or the course will be extended for one week. This will be determined by a discussion with the class on February 26, 2014. 11
March 19, 2014 - Wednesday Time: 6:00 PM ET Course Lesson 4 - Identifying ESI Types and Computer Forensics ESI Types: Metadata, E-mail, Internet, Databases, Text, Spreadsheets, etc. Computer Forensics: Destroying, Restoring, Concealing and Protecting ESI Instructor(s): Michael R. Arkfeld Objectives/Topics: These lessons will closely examine the different types of ESI including e-mail, databases, Internet data including social networking information and many other types. You will learn about texting, index data and all the types that are available for discovery including "accident event recorders." Of special importance, the program will focus on metadata and you will learn the distinction between, and significance of, system and application (embedded and substantive) metadata. You will come to understand when and why metadata is evidence, and the appropriate steps required to preserve, collect, review and produce metadata. Also covered will be an examination of the importance of computer forensics and methods of destroying and restoring ESI. Assignments: Required Reading: BPG IT Primer, Chapter 4, ESI File System, Concealment and Types BPG IT Primer, Chapter 5, ESI Sources and Locations EDE Treatise: 3.5, Destroying, Concealing or Protecting ESI EDE Treatise: 7.7(B)(2)(b), Discoverability (metadata) Required Online Video instruction: IT04 - ESI Types: Part 1 - Metadata and E-mail IT05 - ESI Types: Part 2 - ESI Types: Internet, Databases, Text, Spreadsheets, etc IT06 - Computer Forensics: Destroying, Restoring, Concealing and Protecting ESI Optional Readings: EDE treatise, Ch. 2, Creation and Storage of Electronic Information EDE treatise, Ch. 3, Structure and Type of Electronic Information EDE treatise, Chapter 4, Computer Forensics, Experts and Service Bureaus 12
March 26, 2014 - Wednesday Time: 6:00 PM ET Course Lesson 5 - Determining IT Infrastructure and ESI Locations Infrastructure: People, Procedures and Technology Storage locations: Media, Devices, Networks and Backups and more Course Lesson 6 - Technological Tools to Preserve, Control and Review ESI Managing and Producing ESI: Technological, Search and Cost Issues Instructor(s): Michael Arkfeld Objectives/Topics: These lessons will focus on the IT infrastructure of an organization and how computer systems and networks are managed by an organization. In addition, this program will catalogue a wide range of potential storage media, devices, and locations of electronically stored information (ESI). Each of these sources should be considered in creating a discovery plan for either the discovery or production of electronic data. This will provide the preliminary basis for a careful examination of backup systems and their common implementations in enterprise environments including networks and servers. In this program you will learn the benefits of managing ESI in an electronic format and using automated litigation support systems (online and offline) to manage, control and review ESI electronically. In addition a close examination will be made of the critical steps for processing ESI including filtering, deduplication, processing, searching and production formats. Assignments: Required Reading: BPG IT Primer 3.3, People & Procedures: How Organizations Manage Information Technology BPG IT Primer, Chapter 5, ESI Sources and Locations BPG IT Primer, Chapter 6, Using Computer Technology to Search, Identify, Filter, Review, Produce and Present ESI EDE treatise: 3.2, Organizational Structure and Positions for Handling Information Technology EDE treatise, Chapter 5, Search, Technology and Cost Issues in Managing ESI 13
Required Online Video instruction: IT07 - Infrastructure: People, Procedures and Technology IT08 - Storage Locations: Part 1 - Media, Devices, Networks and Servers IT09 - Storage Locations Part 2 - Cloud, Back-up System, Archival and Legacy IT10 - Managing and Producing ESI: Technological, Search and Cost Issues Optional Readings: EDE treatise, Ch. 2, Creation and Storage of Electronic Information EDE treatise, Ch. 3, Structure and Type of Electronic Information April 2, 2014 - Wednesday Time: 6:00 PM ET Lesson 7 - Legal Strategies Search, Chain of Custody, Form of Production and Non-waiver Agreements Search Methodology And Protocol Inspection of Computer System and Deleted ESI Chain of Custody and Evidentiary Issues Rule 34 and Form of Production Work-Product, Privileged ESI, Nonwaiver Agreement and Retrieval Procedure Instructor(s): Michael Arkfeld Objectives/Topics: This program will focus on search method and protocol for ESI; inspection of computer systems and the "chain of custody" to ensure the authenticity of ESI and other foundational issues that could affect its admissibility. The forms of production, including native files, TIFF and PDF will be examined, as well as their effect upon ediscovery. In addition, the program areas to be covered include privileges, inadvertent disclosure - court approaches, inadvertent disclosure retrieval procedure, inadvertent disclosure under new FRE 502 involving limitations on waiver and "clawback" and other protective agreements. Assignments: Required Reading: BPG Strategies 3.7, Search Methodology And Protocol BPG Strategies 3.8, Inspection of Computer System and Deleted ESI BPG Strategies 3.9, Chain Of Custody and Evidentiary Issues 14
BPG Strategies 3.10, Rule 34 and Form of Production BPG Strategies 3.11, Work-Product, Privileged ESI, Nonwaiver Agreement and Retrieval Procedure EDE treatise, 5.4, Searching ESI EDE treatise, 7.7(G), ESI Form(s) (Legal analysis and cases) Required Online Video instruction: Pretrial 03 - Search Methodology and Protocol, Inspection of Computer Systems and Chain of Custody Pretrial 04 - ESI Format Disclosure Requirements Pretrial 05 - Privileged ESI, Nonwaiver Agreement and FRE 502 Optional Readings: EDE treatise, 5.3, ESI Forms and Disclosure Formats EDE treatise 5.5, Chain of Custody and Hash Value EDE treatise 7.7(C)(3), Inspection of Computer System EDE treatise, 7.7(E), Kept in the Usual Course of Business or Labeled EDE treatise 7.7(F), Translated Into Reasonably Usable Form or Ordinarily Maintained EDE treatise, 7.7(F)(2), Reasonable Assistance EDE treatise, 7.7(F)(3), Searchable EDE treatise, 7.7(G), ESI Form(s) EDE treatise, 7.4(H), Work Product (Rule 26(b)(3)), Privileged Information and Inadvertent Disclosure EDE treatise, 7.7(I), Search and Information Retrieval EDE treatise, 8.8, Inadvertent Disclosure, Attorney-Client Privilege and Work Product and Limitations on Waiver April 9, 2014 - Wednesday Time: 6:00 PM ET Lesson 8 - Protection of ESI - Accessibility, Burdensomeness, etc. 15
Accessibility of ESI and Cost Allocation Burdensome, Relevancy and Overbroad Protective Orders Rule 26(C) Certification of Production Efforts and Search Methodology and Protocol Instructor(s): Michael Arkfeld Objectives/Topics: The focus of this lesson will be on the limitations and protections afforded litigants in ediscovery proceedings. This will include objections based on ESI not being reasonable accessible, burdensome, relevancy, overbroad, cost allocation/proportionality, sampling and their effect on ESI disclosure. This lesson will also focus on two main areas: certification of your discovery responses under FRCP 26(g) or similar state procedural rule; and under what circumstances is it necessary to certify your search methodology and protocol for the Courts. Assignments: Required Reading: BPG Strategies 3.12, Accessibility of ESI and Cost Allocation BPG Strategies 3.13, Burdensome, Relevancy and Overbroad BPG Strategies 3.14, Protective Orders Rule 26(C) BPG Strategies 3.15, Certification of Production Efforts and Search Methodology and Protocol Required Online Video instruction: Optional Readings: Pretrial 06 - Limitations on Discovery - Cost Allocation (Proportionality), Protective Orders. Burdensome and Relevancy Pretrial 07 - Certification of Production Efforts EDE treatise, 7.4(G)(1), Not Reasonably Accessible Rule 26(b)(2)(B) EDE treatise, 7.4(G)(2), Burdensome - Rule 26(b)(2)(C) EDE treatise, 7.4(G)(3), Cost Allocation - 26(b)(2)(iii) EDE treatise, 7.4(F)(3), Relevancy and Overbroad Concerns EDE treatise, 7.4(I), Protective Orders - Rule 26(c) EDE treatise, 7.4(L), Certification - Rule 26(g) EDE treatise, 7.7(I)(4), Certification of Search Methodology April 16, 2014 - Wednesday Time: 6:00 PM ET 16
Lesson 9 - Spoliation and Sanctions and Final Test Prep Review Instructor(s): Michael Arkfeld Objectives/Topics: This lesson will focus on the elements to establish the spoliation of ESI including culpability and relevance. You will discover that a Court's authority to issue sanctions is derived from their inherent authority as well as several court rules. This lesson will also will also focus on the type of sanction including an adverse inference instruction, monetary awards and even criminal penalties including jail. Spoliation and Sanctions Assignments: Required Reading: BPG Strategies 3.16, Spoliation and Sanctions EDE 7.9(B), Sanctions - Fed. R. Civ. P. 37 EDE 7.9(C), Spoliation Required Online Video instruction: Optional Readings: Pretrial 08 - Spoliation and Sanctions EDE treatise, 7.9(B), Sanctions - Fed. R. Civ. P. 37 EDE treatise, 7.9(C), Spoliation 17