eDiscovery for Small Business and Startups: Are You An Organized Data Saver?

eDiscovery for Small Business and Startups: Are You An Organized Data Saver?

Author: Eric Everson, MBA, MSIT-SE, JD Candidate*

Data touches every small business and startup alike.  While there may be a few outliers, generally every business today generates and collects data.  The founders of most startups and small businesses that I meet are primarily concerned with growing their businesses and generally do not have time to stop and concern themselves with the possibility of some future litigation.  As it turns out, preparing for the possibility of litigation can be as simple as establishing a value added electronic records management (ERM) solution for the business.

Let’s face it, as prices have come down, data storage hardware is cheap.  Today you can pick up a terabyte of external storage for under $100.  With all of this digital storage readily available, it is easy as a business manager to adopt a “save it all” mentality when it comes to data archives (email, documents, spreadsheets, reports, databases, etc).  This is where we begin our eDiscovery for startups and small businesses… become an organized data saver!

Perhaps you’ve never heard of eDiscovery or are new to the idea of data preservation in anticipation of litigation.  The truth is, many business owners learn about eDiscovery for the first time when it is raised by their attorney in response to a litigation hold notice.  As computers have streamlined business practices, an area of technology law called eDiscovery has blossomed.  In effect, eDiscovery rules subject business owners to very strict penalties for purposely deleting, damaging, or withholding data.  In eDiscovery, data is often referred to electronically stored information (ESI) and there is an abundance of legal procedure and case law that requires responsible preservation and production of this data.

One way a small business owner can protect themselves against eDiscovery penalties is to become an organized data saver.  What this requires is often simple, which is creating some organization and methodology to the data your business saves.  Some businesses are required by law to save certain kinds of data for many years and yet some data can be discarded routinely.  What you want from your ERM solution is organization that allows you to search effectively through the data that you archive and to establish a reasonable data retention policy that prevents you from creating a data landfill.  Do not simply dump your data into a hard drive and forget about it, keep it organized either by date, transaction, project, or some other criteria that fits your business.

When organizing your data retention policy consider things like whether the data is required to be stored by law for a statutory period (i.e. number of years for personnel files after termination), who created the data, how long are other companies keeping the same kind of data, what criteria is used to sort data, who is responsible for the data management and cleanup?  There are many similar questions to ask, but these few examples will get you started as you begin to become an organized data saver.

A quality ERM solution is not expensive to establish, but they do require active management which is an operational cost that every business manager should anticipate.  Not only will becoming an organized data saver help if you ever face a lawsuit, but it will also help you strategically streamline your data to grow your business today.

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*About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @iamtechlaw

eDiscovery: Microsoft Office 365 and Cloud-based eDiscovery – Office 2013

eDiscovery: Microsoft Office 365 and Cloud-based eDiscovery – Office 2013

Author: Eric Everson, MBA, MSIT-SE, *JD Candidate

 

 

About the Author: Eric Everson (Twitter: @iamtechlaw) is a software engineer turned legal scholar that has been published by a variety of technology, business, and law mediums.  A core focus of his works are the intersection of business and technology with the law.  He is available as a consultant for matters of eDiscovery (domestic and international), business legal strategy, and technology law (new products/ services analysis, risk assessment, cyber security, intellectual property, and more).    

Admittedly, as a software engineer now well consumed by the law, it is the highly complex areas of modern litigation that bring me the greatest delight.  With a focus on technology law, I regularly spend time assessing the global impact of new technologies and the legal frameworks in which they encounter.  One area that is increasingly expanding is international eDiscovery.  In this field, not only does one have to fully understand the technologies but especially the laws that regulate the production of Electronically Stored Information (ESI).  The introduction of Microsoft’s subscription-based Office 365 opens the door to a variety of complexities in eDiscovery with a heavy emphasis on cloud-based eDiscovery.

First, it should be acknowledged that Office 365 presents a shift in business model for Microsoft in two important ways.  The first way is that while standalone pricing lingers, the company has put a heavy emphasis on commercial users to transition to their new subscription model.  To propel this forward, Microsoft has limited standalone pricing to one machine, while subscription users will be able to use the services on up to five computers.  The second shift for Microsoft with Office 365 is the heavy emphasis on cloud-based computing.  For those of us who have stuck with Microsoft’s Hotmail over the years, we are already accustomed to SkyDrive and all of its work sharing capabilities.  For those less accustomed to this offering, the software takes full advantage of the interconnectivity of the web file sharing and collaborative file creation. 

Next, let’s look at the evolving landscape of software which is ever-pushing towards a cloud-based Software as a Service (SaaS) model.  This model is especially effective for computing devices (netbooks, tablets, handhelds, etc) with limited processing resources as the machines rely on a connection to the internet to create, change, and save documents.  With Office 365, the applications (Word, Excel, PowerPoint) are based on a SaaS platform and storage is complemented by SkyDrive.  The upside is that I can be a few miles off the coast of Grand Cayman relaxing in the hull net of a catamaran while collaborating on work product with an engineer in her Chicago office.  The downside… eDiscovery.

For the past several years, eDiscovery software vendors have been playing catch-up to the pace of technology (which happens to be light years ahead of the law in many regards).  Just as of now for example, social media for example is being able to be properly preserved and authenticated (of course supported by its own distinct line of case law).  Office 365 turns the now existing eDiscovery software on its head and forces us into the cloud for attempts at preservation.  The cloud however is not as pretty as a normal computer with regard to the way files are stored, archived, and shared. 

In the cloud, file encryption often comes standard adding an extra layer of penetration for eDiscovery software and global backups literally parse files into smaller data packets that are often stored on remote servers all over the globe.  There are tens of thousands of data centers around the world, a number that is only set to grow.  The line of current case law ends with the physical site of the server for purposes of establishing jurisdiction, which is archaic compared to the advances that cloud data storage have brought about.  It is very likely that a file created on a local machine in Florida could be saved only to be stored, divided into packets, and mirrored in several data warehouses that pepper the globe.

Cloud computing, especially by way of the new Office suite, pushes eDiscovery into international territory at an accelerated rate.  The new Office suite is a dream for a virtual office owner, but represents the greatest fears of eDiscovery professionals everywhere.  As a sidebar, I love Win8 so far and appreciate the global production capacity that this technology combined with Office 365 represents for a geographically diverse work team.

Increasingly, technology law is the practice of trying to force the law to keep pace with technology.

                               

About the Author: After completing the Marketing Innovative Technologies Program at The Harvard Business School, Eric Everson became the co-founder of the mobile security software company MyMobiSafe.com.  While managing and growing the startup he completed his masters in software engineering and his MBA.  He is now an emerging leader in technology law and corporate governance.  From litigation to leveraging buyouts, he is comfortable in business, technology, and the law.  *In May, 2013 Eric Everson will graduate from the Florida A&M University College of Law.

Tags: eDiscovery, Office 2013, Office 365, Microsoft, Cloud, Cloud Computing, Cloud eDiscovery, Litigation, Commercial Litigation, Preservation, Social Media, Technology Law, Technology, Win8, Windows 8, @intleDiscovery, @iamtechlaw

Technology Law and Defensible Deletion: When Is It OK to Hit Delete?

Technology Law and Defensible Deletion: When Is It OK to Hit Delete?

Author: Eric Everson, MBA, MSIT-SE, JD Candidate May 2013

In today’s Big Data environment, most data center managers would tell you that you have to delete data in order to maintain scalability in volume management.  In contrast to this, eDiscovery advisors around the country are warning you about huge penalties that deleting data may subject you to.  So what’s the correct path? When is it okay to hit Delete?

From the onset, the truth is, there is no single answer here as every situation requires at minimum a Defensible Deletion Analysis (DDA).  A Defensible Deletion Analysis (a.k.a. DDA) is a comprehensive assessment of target data and associated metadata in comparison to the corresponding hold requirements and litigation risks.  A DDA will at minimum identify the spectrum of risk associated with deleting certain data.  When I perform a DDA, the first few questions I identify are:

·         What kind of data is it? (Personal info, financial, health-related, archived emails, essential/ non-essential)

·         What are the storage standards of this data type? (How long are you required to keep it and on what authority?)

·         What are the risks? (Identify the risks and degree to which each may exist)

·         What is the recommendation?  (Is this the type of data that can be defensibly deleted?)

Generally, what I am seeing is that businesses rarely have blanket deletion policies in place, but in so many instances there are certain data types that get deleted more regularly than others.  Archived email is a good example of data that often gets deleted, but as a result can carry profound legal consequences.  It is important to have a data preservation policy in place that not only identifies the data type, but also one that assigns a priority scheme to the data.  In such a scheme an email from a C-level employee would be assigned higher priority than perhaps an email from a non-customer facing subordinate employee.

The bottom line here is that it is okay to delete data, but at minimum conduct a DDA every time as part of your defensible deletion strategy.  In today’s preservation sensitive legal system, deleting data has become a very risky business, so be sure to take the appropriate steps before you delete anything.  As the case law demonstrates, this is just as important for start-up businesses as it is for well established industry titans.  We have but just entered the threshold of the Big Data environment and in this kingdom Delete is a 6-letter word with serious consequences.

#eDiscovery

Are you on Twitter?  Follow me @IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Tags:  ESI, Defensible Deletion, eDiscovery, Delete, Preservation, Big Data, Data Risk, Data, Defensible Deletion Analysis, Archived email, data types, technology law, Preservation Policy, data center, data center management     

Is Android Really the New Windows? What Does This Mean for International eDiscovery?

Is Android Really the New Windows?  What Does This Mean for International eDiscovery?

Author: Eric Everson, MBA, MSIT-SE, JD Candidate (May 2013)

Technology Analyst David Meyer of ZDNet recently wrote a controversial, yet thought provoking piece dispensing that Android really is the new Windows.  This is a bold pronouncement, which sent the early adopters of tech whirling, some in support and others in utter disagreement.  The controversy stimulated by his article is important as it requires us all to take a hard look at the numbers that the Android is pushing and for those in the practice of law to pivot such that we are more inclusive of Android as a power player in eDiscovery.

The article I’m responding to is one that Mr. Meyer primarily based on a recent Gartner industry report that demonstrates that Android unit sales more than doubled year-on-year to 122.5 million, and the platform has a market share of 72.4 percent, up from 52.5 percent a year before.  Apple's iOS is in second place, with quarterly device sales up from 17.3 million to 23.5 million, but its market share down from 15 percent to 13.8 percent.  Other mobile Operating Systems  (MOPS) are all in the single digits, from RIM's 5.3 percent share down to Microsoft's 2.4 percent.

Perhaps the greatest criticism that Meyer has received is that he has blurred mobile devices with PC’s.  Taking a look at the technology industry as a whole however suggests that the entire industry is also blurring the lines between mobile devices (traditionally home to smartphones and tablets) and PC’s.  Have you seen the Dell XPS Convertible or the Samsung Galaxy Note lately?  Quite simply, the lines are blurred and mobile devices and PC’s are forever changed.

Does this mean we should count Microsoft out of the game?  Not if you recognize the 40 million Windows 8 licenses that Microsoft has already sold (insert Android gulp here) since the new OS debuted just over a month ago.  Microsoft is definitely still in the game and with manufactures ever blurring the lines between PC and tablet, I think it’s still premature to declare Android the new Windows just yet. 

For eDiscovery vendors, digital forensic specialists, data analysts, and technology attorneys alike, the expansion of Android means that our world is growing.  As the facts indicate, data is growing at an astonishing pace; to facilitate the future of litigation, we have to ensure that we too keep pace with the growth.  As the facts demonstrate, the lines between mobile devices and computing are forever blurred, as such the role of eDiscovery in litigation continues to multiply.         

#eDiscovery #mobile #techlaw

Are you on Twitter?  Follow me @IntleDiscovery or @iamtechlaw

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow: @IntleDiscovery or @iamtechlaw

Tags:  mESI, Mobile eDiscovery, Mobile Device eDiscovery, Android, Windows, Windows 8 eDiscovery, Tablet eDiscovery, Android eDiscovery, ZDNet, MOPS, PC, iOS, iamtechlaw   

In-House eDiscovery and Data Preservation: Litigation Hold, Where is Your Data?

In-House eDiscovery and Data Preservation: Litigation Hold, Where is Your Data?

Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate May 2013

Perhaps the most frightening phrase in-house counsel can hear today is “litigation hold.”  Where do you start? Who do you call? How do you preserve all of the data? How will this impact operations? … before you go into full blown meltdown, let’s start with the most important question first: Where is your data?

 

When approaching a litigation hold, understand that data management is a profession within its own right.  In an age where data fragmentation and cloud computing can quite literally have data scattered methodically all around the world, the first step in complying with a litigation hold is understanding where the data actually is.  This is likely to result in a different answer every time you encounter it, so take the time to understand your data and its location at the frontend of each litigation hold.  To best understand where your data is, you should start by seeking answers these core questions:    

Who manages the data?  This will be different for all organizations.  Some organizations may have a smaller IT team that handles all matters of data storage and archiving whereas, other Big Data companies may have entire business units or third-party service providers that help manage the data.  It is important to identify who “owns” or otherwise has the principle responsibility for the data that is the subject of your litigation hold.  Finding this person or team can be a process, but often nothing beats some old fashion telephone calls.  As a matter of developing credibility within your IT organization, I recommend contacting your local IT personnel first and working through contacts by way of internal referral.  This will get you more acclimated to the IT lingo and will help you the next time you have a litigation hold too… there will always be a next time. 

What data is to be included in the hold?  The biggest mistake in-house counsel can make is overreacting to a litigation hold.  Remember that the best defense A litigation hold does not validate you standing atop the desk declaring “Stop the Presses!”  Be cognizant that what you are seeking 99% of the time when processing a litigation hold is considered archive data (as compared with real time data).  This means that you never need to bring operations to a screeching halt, but rather must identify the data with a degree of particularity that is the actual subject of the litigation hold.  Know what you are seeking.  This means familiarizing yourself with more techie lingo like file types, indexing, and often understanding your Database Management System (DBMS).  This will all help you in exploring your preservation options and will help you hone in on where the data is actually located.      

Where is the data actually located?  Don’t get frustrated when personnel from IT makes a statement like, “The data is everywhere man.” or “Dude, it’s somewhere in the cloud.”  As frustrating as this may be as in-house counsel, this may be a very accurate statement depending on the physical structure you are facing in your company’s data management.  In fact, it may be a very telling observation for instance, if your company is using distributed data centers and applies a data fragmentation strategy to better protect the data.  What you need to ultimately get to, is where the data is physically located.  The data will be easy enough to identify by its IP address (which is essentially like saying its digital location) but it is best if you can drill deeper and identify down to the physical building, rack, and shelf that the physically stores the data.  Knowing where you data is will help you better manage its preservation.

Now that you have answered these core questions, you are on your way to better executing the litigation hold.  A litigation hold is not something to take lightly, but if systematically approached each time it can be a much less overwhelming process.  To improve this process looking forward, you may also seek to implement a data management policy that outlines defensible systematic data archiving and removal protocols.

 

 #eDiscovery

Are you on Twitter?  Follow me @IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  As a software engineer, turned law student, Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Tags:  Preservation, Litigation Hold, Data, Data Center, DBMS, eDiscovery, Data Storage, Big Data, eDisclosure, in-house counsel, data fragmentation, Archive, File type, technology law, Eric Everson    

 

 

Fender Guitars Plugs-in with Apple: Are Your Guitar Chords Discoverable?

Fender Guitars Plugs-in with Apple: Are Your Guitar Chords Discoverable?

Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate May 2013

The coveted icon of music industry guitars, Fender, unveiled its latest foray into technology today.  The guitar company has officially announced a new model that comes with the ability to connect directly to iOS devices like the iPad and iPhone (and of course Mac computers) via USB.

 

With eyes on the future of the intersection of copyright law and technology law, does this innovation mean that guitar chords will become discoverable by virtue of eDiscovery?  eDiscovery refers to an area of litigation where electronically stored information (ESI) enters the legal process.  Imagine the scenario where two artists are battling out who the first author of the song was and it becomes immediately apparent how metadata (data about data which often includes information such as the author, creation date, time stamp, etc.) regarding the chord patterns could be legally relevant.  Perhaps only the future will tell, but this union between Fender and Apple certainly strikes a chord!

As PC Mag notes, “Ever since the debut of the iPad, third-party accessory makers have worked to produce a wide range of add-ons and gadgets designed to allow musicians to take their studio sessions mobile. From specialized adapter cords to cleverly constructed interface jacks, in recent years the professional music community has become accustomed to using these devices to record sessions directly to the iPad and iPhone. Now, at least in the case of guitar players looking to go digital, the new Fender instrument essentially eliminates the need for many of these clunky accessories.” (Ref: http://www.pcmag.com/article2/0,2817,2412051,00.asp)  With the ubiquity of the iPad in the deepest recesses of the professional music community, it seems that the likelihood of such data becoming part of litigation is but only a matter of time.

In the immortal words of Foreigner’s Jukebox Hero, “And that one guitar made his whole life change.”

#eDiscovery

Are you on Twitter?  Follow me @IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Tags:  Fender, Fender Guitars, Apple, iPad, eDiscovery, eDisclosure, Copyright, Law, Tech Law, Technology Law, Preservation, ESI, Electronically Stored Information, Music Law, Entertainment Law   

eDiscovery in U.S. Federal Court: What ArrivalStar Means to You.

eDiscovery in U.S. Federal Court: What ArrivalStar Means to You.

Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate May 2013

The thing I hear the most from attorneys is how complex and complicated eDiscovery is making litigation.  The truth is that eDiscovery can be both complex and complicated, however many courts and jurisdictions all over the world are working through it every day.  One such example via an Amended Order (2012 WL 3590414) that hails from Judge Allegra is one of special import for those facing eDiscovery in U.S. Federal Court: ArrivalStar S.A. v. The United States of America (2012 WL 3590414).

This Amended Order published August 20, 2012, irons out some very fundamental aspects of eDiscovery for litigants in U.S. Federal Courts by way of 15 key points:

1. This Order supplements this court's discovery rules.

2. Generally, the costs of discovery shall be borne by each party, subject to the provisions of RCFC 26(b)(2)(B) and 37.

3. Production requests under RCFC 34 and 45 involving electronically stored information (ESI) shall not include metadata absent a showing of good cause (e.g., that questions exist concerning the authenticity or authorship of email). (Emphasis added)

4. Email production request shall only be propounded for specific issues, rather than general discovery of a product or business. Subject to paragraph 3, the production of email shall not include metadata so long as the following information fields are otherwise apparent: date sent, to, from, cc, and any attached filed(s).

5. Email production requests shall be phased to occur after the parties have exchanged initial disclosures and basic documentation about the patents, the prior art, the accused instrumentalities, the relevant finances, as well as the technology systems involved with email that is reasonably anticipated to be relevant. While this provision does not require the production of such information, the court encourages prompt and early production of this information to promote efficient and economical streamlining of the case.

6. Email production requests shall identify the custodian, search terms, and time frame. The parties shall cooperate to identify the proper custodians, proper search terms, and time frame.

7. Each requesting party shall limit its email production requests to a total of eight custodians per producing party. The parties may jointly agree to modify this limit without the court's leave. The court shall consider contested requests for additional custodians, upon showing a distinct need based on the size, complexity, and issues of this specific case.

8. Each requesting party shall limit its email production requests to a total of ten search terms per custodian per party. The parties may jointly agree to modify this limit without the court's leave. The court shall consider contested requests for additional search terms per custodian, upon showing a distinct need based on the size, complexity, and issues of this case. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the production.

9. Before seeking to modify the limits specified in paragraphs 7 or 8, the parties are encouraged to engage in sampling under RCFC 26(b) and 34(a)(1)(A).

10. Pursuant to Fed.R.Evid. 502, the production of documents and data pursuant to this Order shall not result in the waiver of the attorney-client privilege or work-production protection as to those documents and data. Also, the production of privileged or protected documents or data under this Order shall not result in the waiver of the attorney-client privilege or work-product protection as to those documents and data in any other federal or state proceeding.

11. If the producing party determines that it has produced a document or data to which it wishes to assert a claim of privilege or protection, the counsel for the producing party shall notify the recipient promptly of its claim. As part of the notification, the producing party's counsel shall identify, by Bates number(s), the document(s) as to which the producing party is asserting a claim of privilege or protection.

12. The recipient shall notify the producing party's counsel upon identification of any document(s) or data which appears to be potentially privileged or protected. Such notification shall not waive the recipient's ability to challenge any assertion of privilege or protection made by the producing party as to the identified document(s). As part of the notification, the recipient shall identify, by Bates Number(s), the document(s) or data at issue. The recipient shall segregate the specified document(s) or data, as well as any copies thereof, from the other materials, and the recipient shall not use the information in the potentially privileged or protected document(s) or date, except as provided by RCFC 26(b)(5)(B), for a period of 14 days after the date on which the recipient notifies the producing party's counsel. Within the 14–day period, or any other period of time agreed to by the parties, the producing party shall determine whether it will assert a claim of privilege or protection as to the identified document(s), and its counsel shall notify the recipient of its determination.

13. Upon receiving notice of a claim of privilege or protection by the producing party regarding a produced document or data, the recipient shall segregate, with promptness and in accordance with RCFC 26(b)(5)(B), the specified document or data, as well as any copies thereof, and the recipient shall not use the information in the specified document or data, except as provided by RCFC 26(b)(5)(B), until after the claim is resolved. If the court upholds—or if the recipient does not challenge—the producing party's claim or privilege as to the produced document or data, the recipient shall return or dispose of the specified document or date, as well as any copies thereof.

13. The parties agree to exchange ESI in accordance with the following provisions. All ESI will be produced either in their native file format or in PDF or TIFF format according to the preference of the producing party except that in the case of ESI for which the native file format is Microsoft Office Excel or other spreadsheet software (e.g., Lotus 123 or Quattro Pro), such ESI shall be produced in its native file format. In producing ESI PDF or TIFF format, however, the producing party shall not remove or reduce any word searching capabilities present in the underlying ESI's native file format. The parties may, by agreement, modify the formats prescribed by this paragraph.

15. This Order may be modified by the court for good cause. The court will be inclined to grant any modification jointly proposed by the parties.

Footnote: The order contains some of, but not all, the provisions from the Model Order drafted by the E–Discovery Committee of the Federal Circuit Advisory Council. See http://www.cafc.uscourts.gov/images/stories/the-court/Ediscovery_Model_Order.pdf  The court also considered the Model Order drafted by the United States District Court for the Eastern District of Texas on this subject, see http://www.txed.uscourts.gov/page1.shtmil? location=rules, as well as recent commentary on this subject, see Daniel Garrie, “The E–Discovery Dance for Patents: Changing the Tune,” http://www.law360.com/articl es/350842/the-e-discovery-dance-for-patentschanging-the-tune.

I know that for some, posting all 15 of these key points only further muddies the water, but for others it likely brings some clarity.  If nothing else, ArrivalStar gives you a place to start from when facing eDiscovery in Federal litigation.  I added emphasis to number 3, as it carves out an exception against providing metadata on RCFC 34 (ESI) and 45 (Subpoenas) requests.  The flag of caution that I would raise here is in producing ESI in something other than native format.  When it comes to today’s eDiscovery software, native format is king and to accept anything less, is a litigation decision that only you can make for yourself.

eDiscovery is here to stay, so little gems like ArrivalStar help to resolve some of the sticky issues therein.  It is important when working through matters of eDiscovery to understand what you are agreeing to and what impact that may have on your case.  While many cases will not turn on metadata, understand that there will be those exceptions where the metadata says it all.

#eDiscovery

Are you on Twitter?  Follow me @IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Tags:  ArrivalStar, eDiscovery, Discovery Agreements, Clawback, Federal Rules of Civil Procedure, Legal Hold, ESI, Patent Law, Technology Law, modified file formats, TIFF, PDF, .XLSX, RCFC 26, Privilege