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Bar News - April 6, 2007

Trial Practice: Planning for E-Discovery Saves Time and Money



Litigants and judges alike are slowly digesting the Amended Rules of Civil Procedure that became effective Dec. 1, 2006. The new Rules are designed to enlighten all parties as to the proper procedure when requesting, preserving, producing, and/or admitting electronic stored information. However, many of those affected are unfamiliar with the practical application of the rules. For example, requesting electronic data requires the requestor to know where the data resides, the format in which the data is stored, and the format in which it can or should be produced, and, finally, the time it takes from creating a forensic image to producing the required data.


Questions arise such as what is considered readily accessible and whether data is really deleted. Other concerns include how to reduce volume and costs associated with electronically stored information, and how to protect attorney-client privilege. While the latter question is best answered by a legal professional, there are some simple explanations and solutions that can assist you when gathering electronically stored information.


Readily available data is that which can be instantly recalled with no additional assistance (software or hardware). Simply click on the file you want to open and there it is. Files that are deleted are merely invisible to the operating system, and require specialized software to recover them. Files that are archived or backed up onto tape drives are also considered not readily available because they, too, require additional intervention. However—and this is a big “buyer beware”—it takes no more effort to recover deleted files than it does any other readily accessible file. Nearly all forensic software has a “recover deleted files” option.


A lack of practical knowledge can lead to an overwhelming amount of volume, much of which is unnecessary. Costs can become out of control if care is not taken to plan for electronic discovery requests. (See diagram.)


As with all things new, the learning curve can be costly in both time and resources, by having a procedure to address many of the known aspects of electronic discovery you can use your time more effectively to proceed with your case.


Melissa K Royer, principal of Defender Data Recovery and Forensic Services in Manchester, is a computer forensic examiner and NH state vendor. Royer received forensic and incident-response training from the SANS Institute in Boston. She is a speaker on the topics of computer forensics and electronic discovery. Contact her at 603-644-8733


Unplanned E-Discovery Cost Cycle
Unplanned E-Discovery Cost Cycle

The above chart demonstrates the cycle that leads to ineffective discovery requests and increased costs.



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