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There was a time when the production of information in civil litigation primarily consisted of the exchange of hard-copy, paper records. Those days are long gone.

Now we live in an age that features all kinds of electronic data. It is critical to get it correct when it comes to Electronic Discovery -  as the downside consequences for getting it wrong can be severe.

Duane Morris reports that as soon as litigation happens or is reasonably believed to be on the horizon, it is imperative to implement a "legal hold" to preserve potentially relevant data. In this way, relevant data will not be destroyed. The failure to preserve relevant data can lead to charges of spoliation of evidence. Actual spoliation can lead to court orders excluding evidence, creating negative evidentiary inferences, leading to the dismissal of claims or defenses, awarding significant monetary sanctions, and/or entering judgment against the spoliating party.  Potentially relevant data must be collected for use and production in litigation. There can be many sources of data. These include a need for a network discovery tool, for hard drives, and hand-held devices, and can include electronic documents, emails, text messages, social media compliance, especially Facebook discovery, and even voicemail messages. Older information stored on back-up tapes at times may have to be retrieved. Where possible, it is advantageous to reach agreements with opposing counsel in terms of sources of data, custodians of data, and Search terms.

The processing of electronic data for ediscovery purposes can involve a number of steps. One issue to consider is whether text and metadata should be removed from native files.

Prior to production to opposing counsel, a review phase should be implemented to ensure that privileged information is not produced, and to produce only information that is responsive to Discovery requests. At times, sensitive, confidential and/or trade secret information will need to be treated with different levels of protection. It is wise to negotiate a mutually acceptable protective order with opposing counsel. There are different types of tools that can be utilized to help in the review process. The production itself likely should be based on agreed-upon specifications with opposing counsel. Frequently, the production is loaded onto a document review platform.

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