Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM

Tuesday, December 09, 2003

An EDD Standards Committee Is Born  

An EDD Standards Committee Is Born

It had to happen... Standardization in the EDD world is at our doorstep.

When I was a charter member of my high school computer club, Kevin Hackman got his hands on this game for the Apple II+ called Tai Pan. It was the first simulation video game ever. The player managed a fleet of ships along the Asian sea silk trail whereby silk was traded at various ports for opium, cannons and silver. The wise user would purchase products at attractive prices and know when and where to sell the bounty for a profit. Of course, if enough cannons were not traded the user would surely fall prey to the scores of Pirate ships commandeered by Black Bart which outgunned the user's trading ship.

If any one knows where a copy of Tai-Pan can be had these days, I would be forever indebted.

Colin Fisher wanted a copy of Tai-Pan from Kevin but he had a Franklin and we had Apples. His Franklin didn't read Tai-Pan so while we played Tai-Pan, poor Colin was relegated to pong.

Litigators have lived in fear of being Colin-ized on the EDD front. Not unlike a run in with Black Bart, the firm or corporation that has not standardized its systems and procedures may not be able to effectively process and review data which could prove decisive in high stakes litigation.

Fortunately, the American Bar Association (ABA) saw the binary code on the walls and in 1999 established Civil Discovery Standards committee. Although the amendments to the standards pertaining to EDD remain in draft form as of the time of this writing, here is a glimpse of a few of the proposed EDD standards which Alextronic believes make sense and support:

1. All parties are encouraged to "meet and confer" as a standard discovery stage to discuss how electronic evidence will be requested, gathered and produced. If there are any unusually complex e-discovery items which a party may seek, an EDD consultant, magistrate or referee should be selected.

2. Parties should agree that harvesting should be done by a disinterested third party expert/vendor and not by attorneys or party litigants themselves.

3. In a native electronic document production, a party who does not own the software application to load a particular file, the requesting party should make arrangements to obtain such software.

4. Parties are encouraged to stipulate as to the authenticity of certain elements of electronic data, such as certain metadata fields (date, character etc...).

5. Issues concerning a waiver as to any privilege must be considered in advance.

These are but a small sampling of the proposed standards promulgated by the ABA. We can expect similar proposals from the Sedona group, the FRE and State legislatures.

We are now at an exciting juncture whereby the standards for EDD aren't yet solidified and exist as drafts available for comment. That means that YOU can actually chime in and share your ideas about a draft standard or even propose your own standard. It won't be that easy to implement your own ideas when these proposals are set in stone.

posted by Alexander | 11:31 PM


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