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E-Discovery

Posted By Mark Shem, Tuesday, August 10, 2010
Updated: Friday, April 25, 2014

by Mark Shem, SCCBA 2010 President

[reprinted from the August, 2010, Daily Journal, SCCBA Monthly Newsletter]

Metadata, TIFF, GB, and ESI. For many of us, these are strange words and acronyms that we do not think apply to us. Yet, for over a year, California has been operating under the Electronic Discovery Act. This act addresses the discovery of electronically stored information (ESI). And, since August 14, 2009, California Rules of Court 3.724 was amended to expand a party's duty to meet and confer related to the discovery of electronically stored information.

If you thought your practice is not affected by ESI, consider this scenario. Your client is involved in a car collision. The client takes a picture of the cars on a cell phone. Is this picture electronically stored information? What about a Facebook page with pictures or text that affect your client's case or rights? E-discovery is all around us.

We can relate to the term "litigation hold." But how do we educate our clients on what this means and the scope of a "hold?" As lawyers, we need guidance as well.

Only one California case addresses the Electronic Discovery Act. At the federal level, there are numerous cases addressing ESI. But as I tell my high school mock trial students, these decisions are "persuasive but not binding." One outside entity, The Sedona Conference, publishes numerous commentaries on all aspects of e-discovery. Where to begin?

The Santa Clara County Bar Association is in the process of forming a task force to help with this e-discovery conundrum. I have appointed a task force comprised of a number of prominent members of the legal community and judges, one of whom has already agreed to serve, to formulate guidelines and principles to assist our legal community and the courts in uniformly handling e-discovery issues and disputes. The goal of the task force is to educate theSCCBA members with a working knowledge of e-discovery and apprise them on how the Court will be addressing e-discovery disputes as well as how electronic discovery will be admitted at trial.

SCCBA members Josh Gilliland and Kathy Gallo have formulated a working outline of what these principles and guidelines should address. They are as follows:

1. Basics of E-Discovery 
        
a. Terminology (i.e. metadata)
        
b. Sources we are using to store electronics (ie. 
           Computers, cell phones, cloud servers)
        
c. Why it is necessary to get the information from  
            these sources

 

2. How to advise your client on how he should keep his stored data
        
a. individual
        
b. small business
        
c. large business

 

3. Collecting information when anticipating litigation

4. Discovery
        
a. Document requests
            
1. Sample requests
            
2. Outsourcing the collection of data for 
                production
            
3. How to handle privilege issues
        
 b. Interrogatories 
            
1. All sources that the electronic data is being
               kept
            
2. Who is in charge of storing the electronic data
        
c. PMK of who is in charge of storing the electronic
            data
        d. Employees of the company who were directly
            involved in the litigation
        e. Whether or not a Discovery Referee should be 
            appointed to oversee the e-discovery process.

 

5. What the court is going to do with a motion to compel
        
a. Discovery Referee
        
b. Forensic computer specialist

 

6. How the Court's are going to handle the admissibility of electronic evidence.

 

The outline is a starting point. It will probably change over the course of our discussions. If you are interested in serving on the task force, please contact SCCBA Executive Director Chris Burdick at chrisb@sccba.com. The goal is to complete the guidelines or E-Discovery for Dummies by the end of the year. We will then seek input from the various SCCBA sections and committees before asking the Board of Trustees to adopt the guidelines. The guidelines will then be distributed to our members and the court.

I am hoping to have the task force up and running by Labor Day.



BOARD OF TRUSTEES VOTES ON ARIZONA IMMIGRATION LAW RESOLUTION

 

 At its July meeting, the SCCBA Board of Trustees approved a resolution encouraging the revision or repeal of Arizona SB 1070 and encourages other legal professionals and organizations to challenge the enforcement and amend/revise this law. The text of the resolution can be found by clicking here.  


The SCCBA expresses its concern on the vagueness of the law's language and potential profiling it will encourage. The SCCBA has a history of taking stands on issues that affect fundamental liberties and legal rights of citizens.

Please enjoy your summer.

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