Six Articles on Electronic - Craig Ball

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Craig Ball © 2007 How thorough is your effort to identify e-mail? E-mail resides in some or all of the following venues, grouped according to relative accessibility: Easily Accessible: • Online e-mail residing in active files on enterprise servers MS Exchange e.g., (.EDB, .STM, .LOG files) Lotus Notes (.NSF files) Novell GroupWise (.DB files) • E-mail stored in active files on local or external hard drives and network shares User workstation hard drives (e.g., .PST, .OST files for Outlook and .NSF for Lotus Notes) Laptops (same as above) “Local” e-mail data files stored on networked file servers (“network shares”) Mobile devices (PDA, “smart” phones, Blackberry) Home systems, particularly those with remote access to office networks • Nearline e-mail Optical “juke box” devices Back ups of individual users’ e-mail folders (i.e., “brick-level” back ups) • Offline e-mail stored in networked repositories e.g., Zantaz EAS®, EMC EmailXtender®, Waterford MailMeter Forensic® Accessible, but Often Overlooked: • E-mail residing on remote servers ISPs (IMAP, POP, HTTP servers), Gmail, Yahoo Mail, Hotmail, etc. • E-mail forwarded and carbon copied to third-party systems Employee forwards e-mail to self at personal email account • E-mail threaded behind subsequent exchanges Subject and latest contents diverge from earlier exchanges lodged in body of email • Offline local e-mail stored on removable media External hard drives, thumb drives and memory cards Optical media: CD-R/RW, DVD-R/RW Floppy Drives, Zip Drives • Archived e-mail Auto-archived to additional .PST by Outlook or saved under user-selected filename • Common user “flubs” Users experimenting with export features unwittingly create e-mail archives • Legacy e-mail Users migrate from e-mail clients “abandoning” former e-mail stores • E-mail saved to other formats .pdf, .tiff, .txt, .eml, etc. • E-mail contained in review sets assembled for other litigation/compliance purposes • E-mail retained by vendors or third-parties (e.g., former service provider) • Print outs to paper More Difficult to Access: • Offline e-mail on server back up media Back up tapes (e.g., DLT, AIT) 10
Craig Ball © 2007 • E-mail in forensically accessible areas of local hard drives Deleted e-mail Internet cache Unallocated clusters The issues in the case, key players, relevant times, agreements between the parties and orders of the court determine the extent to which locations must be examined; however, the failure to identify all relevant e-mail carries such peril that caution should be the watchword. Isn’t it wiser to invest more to know exactly what the client has than concede at the sanctions hearing the client failed to preserve and produce evidence it didn’t know it had because no one bothered to look for it? What’s more, thorough identification of both accessible and inaccessible electronically stored information isn’t just sound practice; it’s a tenet of federal procedure. Effective December 1, 2006, the Federal Rules of Civil Procedure require a party to provide, without a discovery request, “a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” FRCP Amended Rule 26(a)(1)(B) [emphasis added]. Amended Rule 26(b)(2)(B) requires a party to identify electronically stored information [ESI] it deems “not reasonably accessible because of undue burden or cost.” The commentary to the new Rules makes clear that the duty to identify attaches to every item of potentially responsive ESI: “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.” FRCP, Comments to Amended Rule 26, subdivision (b)(2). Preservation The duty to preserve potentially relevant evidence is generally triggered by the anticipation of a claim. Fulfilling a preservation duty with respect to e-mail is made harder by the control reposed in individual users, who establish quirky folder structures, commingle personal and business communications and—most dangerous of all—control deletion and retention of their messages. Individual users who may hold responsive ESI must be directed to retain all potentially relevant messages and be furnished sufficient information at appropriate intervals to assess relevance consistently. You’ve got to guard against human frailty in your preservation strategy, so don’t leave the fox guarding the henhouse. Act promptly to protect data from spoliation at the hands of users most inclined to sweep it under the rug. Consider the following as parts of an effective e-mail preservation effort: • Litigation hold notices to users, including clear, practical and specific retention directives Notices should remind users of relevant places where their email may reside Be sure to provide for notification to new hires and collection from departing employees • Suspension of “retention” policies that call for purging email 11
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Page 3 and 4: Craig Ball © 2007 Hitting the High
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Page 43 and 44: Craig Ball © 2007 Don’t give up.
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Craig Ball © 2007 • Releasing or
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Craig Ball © 2007 Ancillary Preser
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Craig Ball © 2007 Musings on Elect
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Craig Ball © 2007 would be lost fo
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Craig Ball © 2007 a (paltry by cur
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Craig Ball © 2007 Cowboys and Cann
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Craig Ball © 2007 Give Away Your C
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Craig Ball © 2007 Don't Try This a
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Craig Ball © 2007 Yours, Mine and
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Craig Ball © 2007 The Path to E-Ma
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Craig Ball © 2007 Electronic evide
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Craig Ball © 2007 • Preserve pot
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Craig Ball © 2007 The Path to Prod
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Craig Ball © 2007 The Path to Prod
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Craig Ball © 2007 Locard’s Princ
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Craig Ball © 2007 A Golden Rule fo
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Craig Ball © 2007 Data Recovery: L
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Craig Ball © 2007 Do-It-Yourself D
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Craig Ball © 2007 Function Follows
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Craig Ball © 2007 The key is to be
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Craig Ball © 2007 image files (i.e
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Craig Ball © 2007 Ten Common E-Dis
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Craig Ball © 2007 Ten Tips to Clip
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Craig Ball © 2007 10. Work coopera
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Craig Ball © 2007 Now, copy the da
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Craig Ball © 2007 In Praise of Has
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Craig Ball © 2007 Dear Santa, Sant
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Craig Ball © 2007 Unlocking Keywor
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Craig Ball © 2007 Noise words are
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Craig Ball © 2007 6. Equipment...L
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Craig Ball © 2007 BitLocker At the
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Craig Ball © 2007 Getting to the D
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Craig Ball © 2007 Getting to the d
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Craig Ball © 2007 Adjunct Professo
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