Jerry Saperstein is a computer forensics expert and e-discovery strategist. He will teach a course called “E-discovery Basics” at Solo Practice University®.
A technologist who understands the intersection of information technology and litigation, he has been described by a federal court as a “careful, precise, credible and knowledgeable expert witness”. Saperstein has been involved with dozens of state and federal court cases since embarking on his career as a testifying expert witness in 1995 and services clients across the United States.
Prior to the that, he has spent the previous four decades involved with various aspects of what has evolved into contemporary Information Technology, beginning with punch-tape driven machines through today’s smartphones.
According to Saperstein, current procedural rules governing e-discovery favor defendants. Plaintiff’s lawyers, especially those in smaller firms, according to Saperstein, operate at a significant disadvantage if they lack broad knowledge of Information Technology or fail to retain appropriate expert assistance.
E-discovery, in Saperstein’s view, should be aggressively deployed as both a strategic and tactical tool by litigators.
Recent cases he has been involved in include Plunk v. Village of Elwood, N.D. IL (2009) where he established the probability of spoliation and incomplete production in a civil rights case. The federal judge said she would instruct jurors they could infer that officials had, at least, bungled their handling of the evidence. Defendant first offered less than one twentieth of final settlement, which, after discovery violations were found, was $1.2 million. In Rosiles-Perez v. Superior Forestry Service, Inc., M.D. TN (2010), Saperstein assisted in helping plaintiff gain access to Electronically Stored Information (ESI) from a recalcitrant defendant in a case which resulted in the largest recovery in any class action against a forestry labor contractor.
His most recent article is “Unreliable Evidence: the true nature of computer date and time stamps”. You can access his website on e-discovery here.
In his course for Solo Practice University, Saperstein covers the critical early steps in the e-discovery program including determining the scope of e-discovery, how to research the opponent’s Information Technology architecture and infrastructure, drafting the litigation hold letter, gaining strategic and tactical command of the e-discovery process and other topics through Rules 16 and 26.
E-discovery is not easy.
There’s a lot more to e-discovery than just asking for printouts of the opposing party’s e-mail.
E-discovery requires substantial knowledge of Information Technology (IT) and how it intersects with the law. Whether you like it or not, whether you want to or not, you’re going to have to learn a bit about the technology and, as the need arises, rely upon intensive research or experts to fill in the many blanks.
Sanctions and possibly even malpractice claims await the practitioner who fails to properly conduct appropriate e-discovery – and almost all discovery these days is e-discovery.
This course covers the basics of e-discovery. Basics, in this case, covers the space from your first evaluation of the case though Rule 16 and 26 conferences.
Session One – Basics of e-discovery
The first session covers:
General introduction to e-discovery and the universe of Information Technology. You have to learn to think in terms of all the possible repositories of Electronically Stored Information (ESI) from desktop computers to smartphones and “cloud” resources. There are a lot of places for data to reside – or be hidden. One of the most frustrating aspects of e-discovery is not knowing where the ESI you want and need is located. If you don’t ask the right questions, you may never get the right stuff.
Learning what your client knows about the adversary’s IT systems is very important. Frequently, the client knows more than you might expect, if you know the right questions to ask.
Session Two – Determining the scope of e-discovery (Part 1)
Back in the good old days, you could copy some interrogatories and production requests from a form book and be done with it.
That approach doesn’t work anymore. In fact, using formbook interrogatories and document production requests can cost you a great deal of wasted time and money.
Today, no matter how small your opponent, you have to understand the architecture and infrastructure of their IT resources. Even the smallest organizations today may be using remote or cloud services that you may miss if you are not alert. With the rapidly increasing proliferation of third-party vendors, portable devices, cloud computing and the like, you can miss critical evidence.
If you don’t understand the nature of your opponent’s IT system, you cannot conduct effective e-discovery.
This session – and the next – explain how to conduct your inquiry of the structure of the opponent’s IT universe.
The first of the two sessions deals with what you should ask the opponent to produce under its Rule 26 duty to disclose and the process of determining what information concerning IT architecture and infrastructure to ask for. Individuals, small and mid-sized organizations are the focus for this session.
Session Three – Determining the scope of e-discovery (Part 2)
This session continues with a discussion of the more complex environments found in larger mid-sized organizations and beyond.
Of special interest to many will be the discussion on discovering personnel records, allegedly archived e-mail and other documents.
The special problems of seeking e-discovery of medical records and other privileged date are also discussed in this session.
Session Four – Using Rules 16 and 26 effectively.
FRCP Rule 26 can be an extremely potent weapon in the discovery battle.
But you have to understand it within the context of the IT universe. In particular, Rule 26(f)(3) can make or break your case.
This session discusses how to make the most of the opportunities Rules 26 and 16 offer and how to avoid the pitfalls they present.
Session Five – The enduring impact of Zubulake and the amended FRCP
E-discovery is biased in favor of defendants and the deeper the defendant’s pockets, the more biased toward them e-discovery becomes.
E-discovery is also tilted in favor of organizations with large Information Technology installations.
Particularly after Zubulake, defendants of all sizes are increasingly likely to claim plaintiff requests are 1) not relevant; 2) overly broad and unduly burdensome; 3) seeking trade secrets or proprietary information; and 4) unreasonably cumulative or duplicative or subject to some privilege precluding production.
This session will spend considerable time on rebutting the first two of these claims using the defendant’s technological infrastructure against them.
The impact of Zubulake and the amended FRCP rules will also be discussed in detail.
Session Six – Effective e-discovery means, like it or not, acquiring some knowledge of Information Technology
Resisting discovery has always been a favored tactic of many defendants. E-discovery is not only easier to resist, it is also easier to avoid and evade.
More than ever before, the propounding party has to be aware of the missed opportunity, the ill-formed request, the unasked question, the undetected insufficiency and the misleading or incomplete response. To paraphrase the late Bette Davis, e-discovery, like old age, isn’t a game for sissies.
You must know about Information Technology and its intersection with law. You don’t have to become an expert – you can always hire experts. But you must recognize that virtually every aspect of the world runs on IT today and that the information you seek may be anywhere within a network.
It is up to you to ferret out relevant Electronically Stored Information efficiently, effectively and economically. This final session provides you the framework for doing so.