Six Articles on Electronic - Craig Ball

Craig Ball © 2007
examining each user’s local machine. Although IM applications use proprietary formats and
protocols, most IM traffic easily converts to plain text and can be produced as an ASCII- or word
processor-compatible files.
Databases
Enterprises increasingly rely on databases to manage business processes. Responsive
evidence may exist only as answers obtained by querying a database. Databases present
enormous e-discovery challenges. Specify production of the underlying dataset and application
and you’ll likely face objections that the request for production is overbroad or intrudes into trade
secrets or the privacy rights of third parties. Producing parties may refuse to furnish copies of
database applications arguing that doing so violates user licenses. But getting your own license
for applications like Oracle or SAP and assembling the hardware needed to run them can be
prohibitive.
If you seek the dataset, specify in your request for production the appropriate back up procedure
for the database application geared to capture all of the data libraries, templates and
configuration files required to load and run the database. If you simply request the data without
securing a back up of the entire database environment, you may find yourself missing an
essential component. By demanding that data be backed up according to the publisher’s
recommended methodology, you’ll have an easier time restoring that data, but be sure the back
up medium you specify is available to the producing party (i.e., don’t ask for back up to tape if
they don’t maintain a tape back up system).
An approach that sometimes works for simpler databases is to request export of records and
fields for import to off-the-shelf applications like Microsoft Access or Excel. One common export
format is the Comma Separated Variable or CSV file, also called a Comma Delimited File. In a
CSV file, each record is a single line and a comma separates each field. Not all databases lend
themselves to the use of exported records for analysis, and even those that do may oblige you
to jump through hoops or engage an expert.
If you aren’t confident the producing party’s interrogation of the database, will disgorge
responsive data, consider formulating your own queries using the application’s query language
and structure. For that, you’ll need to understand the application or get expert help, e.g., from a
former employee of the responding party or by deposing a knowledgeable employee of your
opponent to learn the ins-and-outs of structuring a query.
Summer Reading
ESI. CSV. WAV. It’s a new language for lawyers, but one in which we must be fluent if we’re
to comply with amended Rule 26(f)(3) and its requirement that parties discuss forms of
production in the pre-discovery meet-and-confer. So, this summer, lay down that Grisham novel
in favor of a work that has us all in suspense: The Rules.
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