Computer Forensics, Electronic Discovery, Ediscovery Data Evidence

AN INITIAL CRITIQUE OF LOCAL RULE, APPENDIX K

To review Appendix K, please go to http://www.vestigeltd.com/resources/AppendixK.pdf

The new Appendix K to the Local Rules, District Court, Northern District of Ohio establishes default e-discovery standards that apply at the commencement of the Rule 16 scheduling conference “until such time, if ever, the parties reach agreement and conduct e-discovery on a consensual basis”. The “if ever” reference may suggest a certain frustration with attorneys who seem able, ad infinitum, to argue about every detail in electronic discovery. While Appendix K appears to settle certain discovery issues, it contains ambiguities that could easily cause more contentious motion practice than it avoids. These ambiguities relate to the legal status of the e-discovery coordinators; the technical characteristics of data and search technologies; and the relationship between format, content and metadata for purposes of efficiently searching and organizing electronic data.

E-discovery coordinator. Appendix K requires the parties in litigation identify and designate a person as being “most knowledgeable” regarding the party’s electronic document retention policies (the “retention coordinator”) and a person to be the party’s “e-discovery coordinator”. The e-discovery coordinator may be “an attorney (in-house or outside counsel), a third party consultant or employee of the party”. The e-discovery coordinator must be able to explain the party’s electronic systems and capabilities, be knowledgeable about electronic document storage, organization, and format issues; and participate in resolving discovery disputes related to electronically stored information.

Appendix K does not define the legal status of representations made by the e-discovery coordinator, although the rule states that the attorneys and parties are ultimately responsible for responding to and complying with e-discovery requests. The ambiguity arises when the coordinator’s knowledge or representation of the technical aspects of electronic document storage, organization, and format issues arising in e-discovery is challenged. This might occur, for example, in response to the coordinator’s explanation of the manner in which relevant electronic information came to be stored on a party’s computer system. It is expected that the coordinator would necessarily explain the system by relying upon technical knowledge and specialized language grounded in an understanding of the file storage processes related to the system. In that regard, the coordinator’s explanations would constitute expert testimony under Rule 702, Federal Rules of Evidence, because it would be based upon “scientific, technical, or other specialized knowledge”. See for example U.S. v. Ganier, No. 05-6350, Sixth Circuit Court of Appeals (decided and filed November 15, 2006) (explaining the manner in which search terms came to reside upon the defendant’s computer, and the interpretation of searching software was an expert function, notwithstanding government’s arguments that it was observations of a lay witness).

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