The Next Generation of Electronic Discovery

What's on the horizon?

In a broad stroke, there are two methods of transport for emerging electronic business communications, server-based and Web-based. Server-based technology, such as digital voicemail, will have many of the same issues and concerns as existing technology such as how to scan for content, how to determine what should or should not be preserved, and how to retrieve data relevant to a discovery without altering its original electronic format.

Web-based technology, on the other hand, begs the question as to whether the communication is being saved at all and, if so, where. How does an organization monitor, control, retain or destroy such information? Is it as ethereal as it seems? Blended technology such as PDAs that function as mobile phones present the complication of finding digital data directly stored on and accessed from the device as well as accessed from, transported over and possibly saved somewhere on the Internet.

For different departments within the company, emerging Web and server-based applications offer the ability to communicate in real-time with peers, partners and customers for exciting possibilities in terms of productivity and customer service. For general counsel, it means electronic information is being disbursed to and received from hundreds or thousands of points daily. Underlying every great communication idea is another layer of potential discovery risk.

Working with IT

Although much of the emerging technology has existed for some time, usage in the business environment is on the rise and savvy litigators are recognizing the value of the information from these sources. General counsel need to know the questions to ask their information technology (IT) personnel regarding technology in use at the company, sanctioned or not, so precautions can be taken for future discovery requests. This includes server-based applications and equipment physically resident within the company and Web-based applications being hosted by application service providers (ASP), Internet service providers (ISP) or on the corporate Web site. All hosting agreements must also be reviewed to understand each party's obligations regarding information control, retention, and deletion. For instance, what if an ASP is instructed to delete specific information and neglects to do so? What if information is destroyed that should not have been removed from the host server?

With respect to each piece of technology, general counsel should explore the options for preserving, retrieving and producing the electronic data in native formats. Then, corporate policies and procedures related to use, retention, and purging of electronic data should be developed or modified, distributed throughout the organization, and stringently followed.

Instant messaging and chat rooms

IM is a real-time form of e-mail utilizing downloadable applications from IM network providers. Chat rooms are online conversations, between two or more people, facilitated by software allowing participants to type messages that can be viewed by everyone in the 'room.' Questions that should be asked regarding IM and chat rooms usage include:

• Are IM or chat rooms being used in the organization (ie, between employees, between employees and partners, clients or customers, on the Web site)?
• Are there methods for logging and auditing messages?
• Are the messages being saved internally and if so where? Are the messages being saved and/or deleted from the IM network provider's server?
• How long are the messages retained?
• Is the purging process manual or automated?
• Can the company scan content to identify messages to save? If not, are there applications that can be integrated into the existing computer system to scan content and capture specified messages?
• Once saved, can the messages be retrieved in native formats?
• Can electronic data related to the message be saved?

Internet mail

E-mail servers capture messages, which can be stored, retrieved and deleted. With free Internet mail service through Yahoo! or Hotmail, for example, there is no end-user server involvement. All communications take place over the Internet. For discovery purposes, general counsel need to understand the dynamics unique to Internet mail.

• Is Internet mail being used?
• For what purpose ' personal, business or both?
• How and where are the messages saved? For what length of time? This may require a conversation with one or more ISPs.
• If an employee accesses Internet mail while at work, are there copies of the messages on the company server and is there a record of the usage in the employee's Internet history log (captures sites a person has visited over a period of time)?
• What procedures are possible for scanning content to identify the messages that should be preserved? Are there applications that can be integrated into the existing system to monitor and capture messages?

Spontaneous conferencing

In the past, online conferences were generally pre-arranged and invitees linked to a Web site for a meeting of two or more people. Software is now available to allow real-time conferences with others without making arrangements through a third party. As long as one party has the software application, they can link others online and conduct a conference. The software allows participants to share and jointly edit text as well as view audio and video content. The ease and availability of the software creates new possibilities for discoverable information.

• Has the company purchased conferencing software for employee use? If so, how is it being used?
• What happens to the information shared by conference participants? Is it saved on each participant's computer system?
• Since the conference takes place online, is the information stored on an ISP server, even on a temporary basis?
• Are there methods available to preserve conferences and to produce them in authentic formats at a later date?
• Are participant email addresses and individual contributions made during the conference captured?

Live and on-demand streaming video

Digital content can be broadcast live or on-demand over the Internet. For live content, a video camera records an event and the signal is fed from the camera to an on-site server, which in turn is connected to the Internet. The live feed is transmitted to a broadcast center, and then relayed to viewers across the Internet. Live video has the potential to be stored in the camera, on the onsite server, at a broadcast or host location or on storage media such as CD-ROMs or DVDs.

On-demand video is increasingly being used on company websites, allowing visitors to view pre-recorded content. On-demand digital content is transferred to a host server and a link is created to the company's Web site. A user clicks the link and the video begins to play. At the conclusion, the video is essentially discarded, meaning it is not stored on the users computer. If on-demand content must be preserved for discovery, it can be saved on the company server, a CD-ROM or a DVD. When a company no longer needs to preserve on-demand content, all copies, including content remaining on an ISP server should be destroyed. Questions to ask IT about live and on-demand video include:

• Is live video used within the organization and for what purposes (meetings, training, demonstrations)?
• How and where are live and on-demand videos saved?
• What procedures are available to preserve, catalog and retrieve live or on-demand video when required for electronic discovery?
• What procedures can be used to retrieve all copies of a video slated to be destroyed?
• Can live video be captured on viewers' computer systems?

PDA/mobile phones

PDAs and mobile phones have merged to give users functions such as e-mail, IM and Internet access. Many of the questions related to Internet mail and IM will apply to these devices as well. How a company monitors wireless devices considered as personal will depend on the culture and policies of the company. The following areas should be explored:

• Where do wireless devices store e-mail, instant messages and Internet sessions?
• Can electronic information from wireless devices be scanned to determine what to preserve?
• What are the procedural possibilities for storing, retrieving and producing the information for electronic discovery?
• Is the purging process manual or automated?
• Can the information be preserved and produced in its native format?
• Will any data related to the electronic information be lost at any point in the preservation, retrieval or production process?

Digital voicemail

Digital voicemail has been part of the office landscape for years, but is still a relatively new issue for electronic discovery. Generally, voicemail received through a company's telephone system is recorded on the voicemail server. Digital format allows the recipient to either dial into the system to retrieve messages or have them delivered to an email inbox. In terms of discovery, this means voicemail messages can also be located on the computer system server. Questions to ask IT regarding digital voicemail include:

• How does the system store voicemail and for what length of time?
• Does purging occur at regular intervals? Is the purging process manual or automatic?
• At how many locations could a single message be stored?
• Can content be scanned to identify what should be saved? Or, are there applications for scanning and capturing voicemail that can be integrated into the existing system?
• Can related data such as time and date the message was received be saved along with the message?

While working with IT personnel, it may be helpful to create schematic drawings to visually diagram the information flow. This may uncover additional issues related to discovery. The better equipped a company is to understand information flow, the better prepared it will be to create a digital preservation system that facilitates future electronic discovery.

The gap between the volume of electronic information being created and transmitted and the time it takes to get control could pose a great deal of liability exposure for companies. There is no question that adoption of new technology is likely, and that general counsel must continually scan the horizon to see what is coming and how new technology will impact electronic discovery policies, procedures and legal requirements.

General Counsel should be aware of the Electronic Communications Privacy Act and its prescriptions on reviewing personal e-mail. 18 U.S.C. ”2510-2520 and 18 U.S.C. ”2701-2711

D. Chad McCoy is a shareholder with Parr Waddoups Brown Gee & Loveless. He practices commercial litigation with an emphasis on Internet related disputes such as domain name registration and cyber squatting as well as intellectual property violations. Mr. McCoy is a frequent public speaker on Internet and technology issues such as spam legislation and electronic discovery.

This is part two of a three part series on electronic issues related to litigation.

Just as general counsel and their outside litigation attorneys are getting familiar with the challenges of electronic discovery, the definition of what is discoverable has begun to broaden. In most of the literature on electronic discovery, the list of places where discoverable information resides is fairly standard and includes computer hard drives, servers, CD-ROMs, floppy disks, zip disks, backup media, e-mail servers, laptops, home computers, and hand-held devices. But, technology keeps changing to meet the visions people have for communicating with each other. As a result, emerging technologies facilitating business communications such as instant messaging (IM), chat rooms, Internet mail, streaming video, spontaneous conferencing, PDA/mobile phone blends, and digital voicemail are quickly becoming the next generation for electronic discovery.

The rules for pre-trial discovery have proven elastic enough to adapt to electronic discovery. Therefore, the rules will make newer technologies just as susceptible to the same inspection as hard drives, servers, peripherals and backup media. The courts are just at the cusp of providing specific guidance for emerging technology discovery. Until more guidance is available, it is imperative for general counsel to take an active role in understanding the technologies being introduced into the organization and the potential liability and discovery risk each poses for the company.

What's on the horizon?

In a broad stroke, there are two methods of transport for emerging electronic business communications, server-based and Web-based. Server-based technology, such as digital voicemail, will have many of the same issues and concerns as existing technology such as how to scan for content, how to determine what should or should not be preserved, and how to retrieve data relevant to a discovery without altering its original electronic format.

Web-based technology, on the other hand, begs the question as to whether the communication is being saved at all and, if so, where. How does an organization monitor, control, retain or destroy such information? Is it as ethereal as it seems? Blended technology such as PDAs that function as mobile phones present the complication of finding digital data directly stored on and accessed from the device as well as accessed from, transported over and possibly saved somewhere on the Internet.

For different departments within the company, emerging Web and server-based applications offer the ability to communicate in real-time with peers, partners and customers for exciting possibilities in terms of productivity and customer service. For general counsel, it means electronic information is being disbursed to and received from hundreds or thousands of points daily. Underlying every great communication idea is another layer of potential discovery risk.

Working with IT

Although much of the emerging technology has existed for some time, usage in the business environment is on the rise and savvy litigators are recognizing the value of the information from these sources. General counsel need to know the questions to ask their information technology (IT) personnel regarding technology in use at the company, sanctioned or not, so precautions can be taken for future discovery requests. This includes server-based applications and equipment physically resident within the company and Web-based applications being hosted by application service providers (ASP), Internet service providers (ISP) or on the corporate Web site. All hosting agreements must also be reviewed to understand each party's obligations regarding information control, retention, and deletion. For instance, what if an ASP is instructed to delete specific information and neglects to do so? What if information is destroyed that should not have been removed from the host server?

With respect to each piece of technology, general counsel should explore the options for preserving, retrieving and producing the electronic data in native formats. Then, corporate policies and procedures related to use, retention, and purging of electronic data should be developed or modified, distributed throughout the organization, and stringently followed.

Instant messaging and chat rooms

IM is a real-time form of e-mail utilizing downloadable applications from IM network providers. Chat rooms are online conversations, between two or more people, facilitated by software allowing participants to type messages that can be viewed by everyone in the 'room.' Questions that should be asked regarding IM and chat rooms usage include:

• Are IM or chat rooms being used in the organization (ie, between employees, between employees and partners, clients or customers, on the Web site)?
• Are there methods for logging and auditing messages?
• Are the messages being saved internally and if so where? Are the messages being saved and/or deleted from the IM network provider's server?
• How long are the messages retained?
• Is the purging process manual or automated?
• Can the company scan content to identify messages to save? If not, are there applications that can be integrated into the existing computer system to scan content and capture specified messages?
• Once saved, can the messages be retrieved in native formats?
• Can electronic data related to the message be saved?

Internet mail

E-mail servers capture messages, which can be stored, retrieved and deleted. With free Internet mail service through Yahoo! or Hotmail, for example, there is no end-user server involvement. All communications take place over the Internet. For discovery purposes, general counsel need to understand the dynamics unique to Internet mail.

• Is Internet mail being used?
• For what purpose ' personal, business or both?
• How and where are the messages saved? For what length of time? This may require a conversation with one or more ISPs.
• If an employee accesses Internet mail while at work, are there copies of the messages on the company server and is there a record of the usage in the employee's Internet history log (captures sites a person has visited over a period of time)?
• What procedures are possible for scanning content to identify the messages that should be preserved? Are there applications that can be integrated into the existing system to monitor and capture messages?

Spontaneous conferencing

In the past, online conferences were generally pre-arranged and invitees linked to a Web site for a meeting of two or more people. Software is now available to allow real-time conferences with others without making arrangements through a third party. As long as one party has the software application, they can link others online and conduct a conference. The software allows participants to share and jointly edit text as well as view audio and video content. The ease and availability of the software creates new possibilities for discoverable information.

• Has the company purchased conferencing software for employee use? If so, how is it being used?
• What happens to the information shared by conference participants? Is it saved on each participant's computer system?
• Since the conference takes place online, is the information stored on an ISP server, even on a temporary basis?
• Are there methods available to preserve conferences and to produce them in authentic formats at a later date?
• Are participant email addresses and individual contributions made during the conference captured?

Live and on-demand streaming video

Digital content can be broadcast live or on-demand over the Internet. For live content, a video camera records an event and the signal is fed from the camera to an on-site server, which in turn is connected to the Internet. The live feed is transmitted to a broadcast center, and then relayed to viewers across the Internet. Live video has the potential to be stored in the camera, on the onsite server, at a broadcast or host location or on storage media such as CD-ROMs or DVDs.

On-demand video is increasingly being used on company websites, allowing visitors to view pre-recorded content. On-demand digital content is transferred to a host server and a link is created to the company's Web site. A user clicks the link and the video begins to play. At the conclusion, the video is essentially discarded, meaning it is not stored on the users computer. If on-demand content must be preserved for discovery, it can be saved on the company server, a CD-ROM or a DVD. When a company no longer needs to preserve on-demand content, all copies, including content remaining on an ISP server should be destroyed. Questions to ask IT about live and on-demand video include:

• Is live video used within the organization and for what purposes (meetings, training, demonstrations)?
• How and where are live and on-demand videos saved?
• What procedures are available to preserve, catalog and retrieve live or on-demand video when required for electronic discovery?
• What procedures can be used to retrieve all copies of a video slated to be destroyed?
• Can live video be captured on viewers' computer systems?

PDA/mobile phones

PDAs and mobile phones have merged to give users functions such as e-mail, IM and Internet access. Many of the questions related to Internet mail and IM will apply to these devices as well. How a company monitors wireless devices considered as personal will depend on the culture and policies of the company. The following areas should be explored:

• Where do wireless devices store e-mail, instant messages and Internet sessions?
• Can electronic information from wireless devices be scanned to determine what to preserve?
• What are the procedural possibilities for storing, retrieving and producing the information for electronic discovery?
• Is the purging process manual or automated?
• Can the information be preserved and produced in its native format?
• Will any data related to the electronic information be lost at any point in the preservation, retrieval or production process?

Digital voicemail

Digital voicemail has been part of the office landscape for years, but is still a relatively new issue for electronic discovery. Generally, voicemail received through a company's telephone system is recorded on the voicemail server. Digital format allows the recipient to either dial into the system to retrieve messages or have them delivered to an email inbox. In terms of discovery, this means voicemail messages can also be located on the computer system server. Questions to ask IT regarding digital voicemail include:

• How does the system store voicemail and for what length of time?
• Does purging occur at regular intervals? Is the purging process manual or automatic?
• At how many locations could a single message be stored?
• Can content be scanned to identify what should be saved? Or, are there applications for scanning and capturing voicemail that can be integrated into the existing system?
• Can related data such as time and date the message was received be saved along with the message?

While working with IT personnel, it may be helpful to create schematic drawings to visually diagram the information flow. This may uncover additional issues related to discovery. The better equipped a company is to understand information flow, the better prepared it will be to create a digital preservation system that facilitates future electronic discovery.

The gap between the volume of electronic information being created and transmitted and the time it takes to get control could pose a great deal of liability exposure for companies. There is no question that adoption of new technology is likely, and that general counsel must continually scan the horizon to see what is coming and how new technology will impact electronic discovery policies, procedures and legal requirements.

General Counsel should be aware of the Electronic Communications Privacy Act and its prescriptions on reviewing personal e-mail. 18 U.S.C. ”2510-2520 and 18 U.S.C. ”2701-2711

D. Chad McCoy is a shareholder with Parr Waddoups Brown Gee & Loveless. He practices commercial litigation with an emphasis on Internet related disputes such as domain name registration and cyber squatting as well as intellectual property violations. Mr. McCoy is a frequent public speaker on Internet and technology issues such as spam legislation and electronic discovery.