In the 1850’s when Abraham Lincoln practiced law he managed his client's information using paper folders. Today, most practitioners still adhere to this way of practicing law, though now we see boxes upon boxes of paper documents. Times have changed.

Computer technology and the Internet have transformed litigation from a sea of paper to a sea of electronic evidence. "According to a University of California study, 93% of all information generated during 1999 was generated in digital form, on computers. Only 7% of information originated in other media, such as paper." In re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 440 n.2 (D.N.J. 2002).

The volume is expanding at a dizzying rate. In 2002 alone about 5 exabytes of new information was created. "How big is five exabytes? If digitized with full formatting, the seventeen million books in the Library of Congress contain about 136 terabytes of information; five exabytes of information is equivalent in size to the information contained in 37,000 new libraries the size of the Library of Congress book collections." Peter Lyman & Hal R. Varian, How Much Information, University of California at Berkeley, School of Information Management and Systems (Oct. 27, 2003) available at http://www.sims.berkeley.edu/how-much-info-2003.

Now, whether your...click here to continue reading.

These devices typically include; personal computers, servers, networks, portable digital assistant devices and digital storage media. As modern economies make more pervasive use of these devices, it is a reasonable proposition that the effective use of this digital data will be influential for successful legal outcomes.

Background:

Both individual litigators and corporate counsel have become aware of organizational data retention policies and associated repositories of digital information utilized in computerized office administration systems, including email and electronic messaging, and information technology systems which support core business functions such as human resources, finance, logistics and production functions. These are complex, technology-based systems that have a vast array of data forms, types and storage structures. The proper forensics recovery of these data forms is a technically complex and artful set of procedures conducted by qualified digital forensics experts. Most corporations and law firms have limited digital forensics resources and generally need to rely on outside forensics experts for these specialized services. Given this situation, the following is a framework for finding and properly utilizing the proper forensics expert for your legal needs.

Questions for Your Particular Case:

Excerpt from Arkfeld on Electronic Discovery and Evidence (2nd Ed.), § 7.7(G), ESI Form(s):

Generally:

"The "forms" of ESI are not defined by the federal amended rules. However, the Fed. R. Civ. P. 34, Advisory Committee Note of 2006 provided some guidance as to the different ESI "forms" which is noted in the following sections.

The Advisory Committee suggested that the parties resolve what "form" the ESI should be disclosed during the pretrial "meet and confer" stage of litigation. See, § 7.4(K), Meet and Confer — Rule 26(f). However, if that fails Fed. R. Civ. P. 34 (b) has created new procedures to resolve the issue of what "form" "electronically stored information" (ESI) should be disclosed. See, § 7.7(H), Procedure — Determining Form(s) of ESI.

The determination of the...click here to continue reading.