E- Discovery Consultant for Law Firms and Corporate Counsel
|Matthew J. Ahearn
Attorney at Law
Litigation Technology Consulting
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Ahearn Legal Technology Consulting:
Ediscovery Services Provided
Management, Ediscovery Liaison for
26 Conference, Deposition
and Trial Support
Provides Rule 26
preparation support, legal
"burden analysis" and objective case management conference
support or motion hearing testimony to assist in responding to overly
broad and unduly burdensome discovery requests related to
electronically stored information (ESI). Provides technical
assistance in preparing and responding to discovery requests regarding
the preservation, collection, processing, production and authentication
of ESI. Investigates,
estimates adversary's capabilities and likely policies. Provides technical
assistance preparing for and during depositions, trial
Technology Assessment and Project Management
Assess the technological environment to account for organizational, technical and logistical issues that impact effective data gathering. Provides objective evaluation of technology and vendor skill / experience / capabilities as guided by your defined objectives and priorities. Provides efficient and independent oversight of IT department or vendor e-discovery and litigation support projects.
Data Gathering and Production Strategies
Counsel and outside
trial counsel plan cost
effective secure and comprehensive data preservation, gathering, and
processing strategies. Provides independent
analysis of various vendors' options for solutions using
appropriately scaled forensically sound procedures designed to minimize
the costs, risk,
and impact on business operations.
Assists in determining what metadata is
relevant to a litigation matter and what is not.
Preparation of E-Discovery Policy and Protocols
Educates management and employees, each at appropriate levels, about ediscovery best practices. Assists in-house and trial counsel prepare ediscovery plans in compliance with applicable legal standards regarding preservation and collection of electronic data. Provides valuable insight into an opponent's information systems for preparing offensive discovery strategies. Coordinates ediscovery activities between corporate counsel, outside litigators, technology IT staff members and vendors on your team to develop plans that address ESI preservation, collection processes, dedupication and repopulation of metadata, chain of custody, chain of evidence, authentication and production of responsive materials.
Documenting the Process
Provides support or takes
responsibility for the project's
documentation during the preservation and data
gathering processes and litigation support through trial when needed. Provides supervisory
assistance of your litigation
support staff and/or your vendors.
Electronic Discovery Library Maintenance
Assists with drafting and maintaining updated collections of preservation demand letters, model orders regarding electronic data management, electronic document reviews and productions; draft interrogatories and requests for production and inspection of things regarding electronic data; Notice of 30(b)(6) Depositions and other inspections regarding information technology devices and systems.
E-MAIL: Matthew J. Ahearn, Esq.
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Consideration of ESI Rules 26(f) and 16
Exchanging information in electronic form has significant benefits
it can substantially reduce copying, transport, and storage costs; enable the requesting party to more easily review, organize, and manage information; facilitate the use of computerized litigation support systems; and set the stage for the use of digital evidence presentation systems during pretrial and trial proceedings. To ensure
that these benefits are achieved and any problems associated with ESI are minimized, attorneys and parties should address ESI in the earliest stages of litigation, and judges should encourage them to do so.
All too often, attorneys view their obligation to meet and confer
under Federal Rule of Civil Procedure 26(f) as a perfunctory exercise.
When ESI is involved, judges should insist that a meaningful Rule 26(f) conference take place and that a meaningful discovery plan be submitted. Amended Rule 26(f) directs parties to discuss any issues relating to disclosure or discovery of ESI, including the form or forms in which it should be produced. More specifically, the parties should inquire into whether there will be discovery of ESI at all; what information each party has in electronic form and where that information resides; whether the information to be discovered has been deleted or is available only on backup tapes or legacy systems; the anticipated schedule for production and the format and media of that production; the difficulty and cost of producing
Managing Discovery of Electronic Information
new Federal Rule of Evidence 502 was published for comment in August
2006. It (1) provides that inadvertent disclosure of privileged or
protected information in connection with a federal proceeding
constitutes a waiver only if the party did not take reasonable
precautions to prevent disclosure and did not make reasonable and
prompt efforts to rectify the error; (2) provides that when a
order governing disclosure is entered in a federal proceeding, according to terms agreed to by the parties, the orders terms are enforceable against nonparties
in any other federal or state proceedings; and (3) codifies the proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among themselves, and makes clear that if the parties want protection from a finding
of waiver by disclosure in separate litigation, the agreement must be made part of a court order. The proposed rule also limits the circumstances in which a subject-matter waiver should be found and includes a provision on selective waiver.
Managing Discovery of Electronic Information 17
tion of discoverable information, particularly with respect to ESI because of its dynamic, mutable nature. In doing so, parties should attempt to balance the need to preserve relevant information and the need to continue routine computer operations critical to a partyâ€™s
The court may help ensure that parties meet their responsibilities
for preserving information and avoid allegations of spoliation by reviewing with them steps for establishing and implementing an effective data-preservation policy. These include (1) allowing the partys discovery liaison to readily describe information systems,
storage, and retention policies to the opposing party and the court; (2) interviewing key employees to determine sources of information;
(3) affirmatively and repeatedly communicating litigation
holds to all affected parties and monitoring compliance on an ongoing basis; (4) integrating discovery responsibilities with routine
retention policies; (5) actively managing and monitoring document
collections; (6) thoroughly documenting and demonstrating the efficacy of the preservation process; and (7) preparing to take responsibility for ensuring that information is preserved, collected, and produced.23
In some cases, a preservation order that clearly defines the obligations
of the producing party
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