Category Archives: Scope

e-DRiP, e-DRiP, e-DRiP: Who, What, When, Where & Why?

j0437216DRP and e-DRP; what are they and what’s the difference?  Essentially, they’re one and the same; a Discovery Response Plan (Electronic or otherwise).

I prefer to bifurcate readiness and response into separate groups, although some consider them as a single team/process.  I’ve covered litigation readiness several times and for the purposes of this post, I’ll assume that you’ve followed my prior recommendations to the letter and have a readiness team in place (I’m allowed to assume that because it’s my blog).

That was the easy part.

Now, the alarm bell has sounded – a litigation hold has been ordered in response to – or in anticipation of – litigation.  What do you do next?  There are a lot of lists out there, but actually, you can envision the path by thinking in terms of ‘who, what, when, where and why’?


You already have the “readiness” team – now you need the “response” team.  WHO will be on it?  Maybe it’ll be the same people, maybe not, but what you do at the outset will establish the tone for everything that follows thereafter.  You’ll need your technology and legal resources to come together at this point and take care to make sure everybody is clear about their specific role.  WHO will document the procedures?  WHO will serve as your expert witness?


If you’re either anticipating or responding to litigation, then you have a good idea of WHAT data will be involved.  If not, start thinking about how to find out.  Designate the team members responsible for identifying, accumulating and preserving ESI.  WHAT will it cost to review and produce?  Will that factor into the proceedings?


WHEN did you issue the litigation hold?  WHEN did the relevant custodians receive the notice?  WHEN will you expect acknowledgment from them?  WHEN are the relevant dates at issue in the action and WHEN did they begin preserving that data?  WHEN will you issue periodic reminders to the custodians to assure continued compliance with the hold?  WHEN will the hold be released?


WHERE’S the ESI?  Refer to your data map so you know WHERE you’ll be looking.  WHERE are the ‘nooks & crannies’; essentially anyWHERE that relevant ESI may exist (hint: it might not be on your map).  WHERE will you store the ESI for review?  Do you have sufficient space in-house or will you need an outside vendor?


WHY is the ESI relevant to the action and therefore discoverable?  WHY should it be produced?  WHY is it privileged?


Depending on what stage you have reached in your own readiness and response programs, you may be asking yourself HOW you’re going to accomplish all of this.  It might not be easy, but there are resources available to you and proper planning in advance will go a long way to assure an even flow.


This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the State Bar of California’s Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California.

The purpose of this blog site is to provide information and insight about e-Discovery law and technology.  The information and insight contained in this blog site are provided only as general information for educational purposes, which may or may not reflect the most current legal or technological developments.  No representation is made about the accuracy of the information.  The blog topics may or may not be updated subsequent to their initial posting.

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What is Electronic Evidence? Answer: A lot more than you might Think!

Part I of a two-part series.  Part II will appear 12/04/08.


A cardinal rule, known to law students everywhere, was broken.  “When on a break from the bar exam, don’t discuss a specific part of it with anyone – and if you absolutely must, ask permission first!”  The reasoning behind this rule; to prevent students from freaking out because inevitably the other student will point out something they themselves missed, thus setting off a chain reaction of worry, panic and distraction.

There I was, on a break from the California Bar Exam, and another student really wanted to discuss the evidence question with me.  We had a pleasant conversation – as pleasant as it could be between two stressed-out bar candidates in the middle of a three-day exam.  We discussed the facts as they pertained to the question and the issue of whether each piece of evidence put before us was authentic.


All was going well until I pointed out the ones that were legit, but weren’t admissible in court.  The pallor of my counterpart changed noticeably.  That’s when he realized that he’d done a great job analyzing whether each piece of evidence was authentic, but forgot the next step – determining whether each was admissible.

Finding evidence is just the beginning.  If all of your dominoes don’t line up properly, it will never be admitted.  The technology gurus have a huge role to play and may not even be aware of it.

A few years ago, if you explained to the average person what electronic evidence – or e-evidence was, then asked them to give you an example, 99% of them would have given you the same answer – e-mail.  We’ve all read news stories about this individual or that one who was caught red-handed through his or her e-mail messages.

Later, another example started showing up more often – text messages.  Just ask the former Mayor of Detroit how that turned out for him…


In law school and on the bar exam, the testers took pride in finding ways to slip a piece of written evidence right by a student by putting it into a form that he or she wouldn’t normally think of as “written”; engraving on a tombstone, label on a medicine bottle, a license plate.  We’re conditioned to think of written evidence as something more mainstream, like a letter, a book or a bill of receipt.

A lot of e-evidence is still written – but now it’s written to computer hard drives, DVDs and cellular phones.  Just like law school students, we have to broaden our thinking and remember that virtually any device that can save, store – or even process electronic information (e.g. RAM in printers/fax machines) may qualify. Then, we have to remember the really tough part – many of these devices are mobile.  They could be virtually anywhere in the world.

Let’s take a hypothetical look at Jane Doe.  She works for a multi-national corporation, “Multi-Corp”.  She has an office in Los Angeles and one in Tokyo, and an apartment in each city as well.  She has a desktop computer in each office, plus a laptop to use when she’s out in the field, at home or traveling.  She stores some of her work on the company file servers.  She’s taken to transferring work from her laptop to her home computers in both Tokyo and L.A. – because she likes them better (the boss doesn’t know).  It’s annoying for her to connect the machines directly, so she either hooks up wirelessly through her router or uses her thumb drive.  She has two cellular phones (one is personal) and a PDA.

Multi-Corp is sued by Uni-Corp, and the Plaintiffs subpoena Jane’s correspondences.  Am I the only one with a headache?  Probably not.

If I’m in the IT department at Multi-Corp, I have to think of every possible device – and the location of each – where relevant data may be stored (let’s hope Jane remembers to tell me about the thumb drive).  Then, once I do, I have to locate the data on the device itself.  What if I need to retrieve it from back-up media?  What happens if a device – and the data it contains – is owned/managed/outsourced to a third party (e.g. the file servers or the cellular phones)?  How do I get them to grant me access when they don’t want to be dragged into a lawsuit?  Do they have to do so?  I might have to ask the legal department.

If I’m in the Legal department at Multi-Corp – or in their outside counsel’s office – I’m depending on the expertise of my IT resources, but I’m also worried about issues that IT doesn’t normally think about; chain-of-custody being a prime example.  I’m looking for data that will exonerate the defendant and relevance is only one issue.  I’m also responsible for making sure it’s admissible and I don’t want it thrown out on a technicality.  How can I impress this and other concepts upon people who don’t work directly for me?

Meanwhile, both departments – and management – are thinking about the costs and whether the Plaintiff’s subpoena is too broad in its scope.

A lot of questions.  A lot of concerns.  I will endeavor to address all of them in tomorrow’s post.