Tag Archives: Electronic discovery

New Jersey State Court Rules on eDiscovery

As the provisions governing the discovery of Electronically Stored Information (“ESI”) in the Federal Rules of Civil Procedure (“FRCP”) have been amended, many states have also amended their court rules and rules of civil procedure to address eDiscovery.  Often, these rules are modeled after the FRCP’s provisions, but key differences remain.  Litigators must be familiar with state court rules, therefore, when engaging in eDiscovery in state court.  This article provides a brief overview of New Jersey’s Court Rules on eDiscovery and compares these rules to the related FRCP rules.

Scope of ESI Discovery

            New Jersey Court Rule 4.10-2 governs the scope of discovery.  In many aspects, Rule 4.10-2 mirrors Fed. R. Civ. P. 26 in defining the scope of eDiscovery.  In conjunction, Rules 4.10-2(a) and 4.10-2(g) permit the discovery of ESI that is both relevant and proportional to the case at bar.  Rule 4.10-2(g) delineates similar factors to assess proportionality (i.e., whether burden or expense of the proposed discovery outweighs its likely benefit) as does Fed. R. Civ. P. 26(b)(1): the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.  Additionally, Rule 4.10-2(f)(2) contains the same limitation to discovery of ESI that is “not readily accessible” as does Fed. R. Civ. P. 26(b)(2)(B): A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost (unless good cause is shown).  In these ways, the provisions regarding the scope of eDiscovery are largely similar under both the New Jersey Court Rules and the FRCP.

The New Jersey Court Rules do specifically address one important topic that the FRCP remains less detailed on: metadata.  The FRCP does not contain any specific provisions on the discovery of metadata, leaving courts to determine whether the discovery of metadata is appropriate in given cases.  By contrast, on September 1, 2016, the New Jersey Court Rules were amended to contain a provision specifically addressing the discovery of metadata.  This provision, Rule 4.10-2(f)(1) states:

A party may request metadata in electronic documents. When parties request metadata in discovery, they should consult and seek agreement regarding the scope of the request and the format of electronic documents to be produced. Absent an agreement between the parties, on a motion to compel discovery or for a protective order, the party from whom discovery is sought shall demonstrate that the request presents undue burden or costs.

The official comment to Rule 4.10-2(f)(1) defines metadata:

“Metadata” is embedded information in electronic documents that is generally hidden from view in a printed copy of a document. It is generated when documents are created or revised on a computer. Metadata may reflect such information as the author of a document, the date or dates on which the document was revised, tracked revisions to the document, and comments inserted in the margins. It may also reflect information necessary to access, understand, search, and display the contents of documents created in spreadsheet, database, and similar applications.

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As companies and businesses increasingly rely on sophisticated electronic document and file-management systems, the amount of metadata produced will only continue to grow.  This metadata may very well contain information that is critical to an action.  While under the FRCP, metadata may be discoverable in an action based on a proportionality analysis in accordance with Fed. R. Civ. P. 26(b), New Jersey Court Rule 4.10-2(f)(1) more clearly delineates that a party may request the discovery of metadata in ESI and that the responding party must demonstrate an undue burden or cost to prevent the discovery of metadata.

Production of ESI

            New Jersey Court Rule 4:18-1 governs the production of ESI.   Rule 4.18-1(b)(1), like Fed. R. Civ. P. 34(b)(1)(C), allows a party to specify the form or forms in which ESI is to be produced when requesting discovery.  Additionally, Rule 4.18-1(b)(2) and Fed. R. Civ. P. 34(b)(2)(E) provide the same guidelines as to the responding party to a discovery request for ESI.  Unless the parties have agreed otherwise or the court orders otherwise, the party responding to the discovery request must produce the ESI as it is kept in the usual course of business or must organize and label the ESI to correspond with the categories in the request.  If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.  In these ways, New Jersey Court rule 4:18-1 and Fed. R. Civ. p. 34(b) are substantially similar regarding the production of ESI.

The New Jersey Court Rules, however, again provide specific guidance regarding the production of metadata.  The official comment to Rule 4:18-1 provides significant discussion of the production of metadata, encouraging litigants and litigators to: (1) be aware that metadata may be present in electronic documents; (2) meet and confer about the format in which they will produce electronic documents; (3) seek agreement on whether the receiving party may review unrequested metadata in electronic documents; (4) agree on the manner in which metadata will be addressed in a privilege log; (5) consider the amount of metadata to be produced and the associated costs; and (6) consider ethical obligations before reviewing metadata.

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Preservation of ESI

            One area where there is significant divergence between the New Jersey Court Rules and the FRCP is the preservation of ESI.  After the 2015 amendments, Fed. R. Civ. P. 37(e) allows the court to sanction a party who fails to take reasonable steps to preserve ESI during, or in anticipation of, litigation.  This 2015 amendment replaced the previous “Safe Harbor” provision of Fed. R. Civ. P. 37(e), which provided “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”  By contrast, the New Jersey Court Rules do not contain any specific provisions regarding a party’s duty to take reasonable steps to preserve ESI.  Additionally, New Jersey Court Rule 4:23-6 retains the “Safe Harbor” provision regarding routine, good-faith operation of an electronic information system as contained in Fed. R. Civ. P. 37(e) prior to the 2015 amendments.  Thus, at least under the language of these rules, the duty to preserve ESI may be may be ripe for amendment under the New Jersey Court Rules.

For information about our eDiscovery and ESI-coordination services, please contact LITeGATION.

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LITeGATION | eDiscovery Hosting & Document Management

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Attorneys’ Guide to Pre-Trial Project Management

What do you think of when you hear the phrase, “Project Management?”  We all know that it pertains to handling the overall elements of a particular venture – but what goes into proper management during the discovery phase of Litigation?  Are your expectations in-line with those of the professionals managing the data in your matter?  They should be – in fact, according to ABA Rule 1.1 (Competence), thoroughness andpreparation account for 50% of the characteristics of a competent attorney.

ABA Rule 1.1 – Competence

Here are 5 tips to ensure that your project manager is acting in the best interest of your discovery milestones, and your overall litigation goals.

Data Collection Efforts

Your team of project support personnel should have a comprehensive understanding as to potentially responsive data.  This includes – the subject matter of the case, where potentially responsive data may reside, how much data may be anticipated, the proper method for collecting such identified-discovery, and means for pre-collection culling of the data-set(s).

Today, data presents itself in multiple formats and can reside all around us.  It is not uncommon to have more data reside in the proverbial cloud, than stowed locally on servers and/or office workstations.

A good discovery project manager will know the right questions to ask in order to quickly identify the relevant sets of files, and suggest means to assess and reduce the data by using mapping exercises, keywords, domain-exclusions, de-duplication, analytics, and more.

Preparing the Data for Review

Once the data has been pre-culled and collected, your project management team should be able to inventory the files collected and prepare the data necessary for processing.

Processing is the phase in which technology, and case-by-case human process, is applied to files, to – expand, de-duplicate, deNIST, extract & isolate text/images/metadata, report on errors/exceptions/encryption, and more.

Once the data is properly prepared for hosting, the project management team should be able to suggest a logical order as to load the data in the system.  During this time, counsel will want to confer with the discovery project manager(s) as to anticipated methods of review-attack, and determine if data needs to be isolated, coded, tagged, etc., in advance of the document review phase.

Choosing the Document Review Platform

Today, there are numerous options when it comes to reviewing documents/data during discovery.  Frankly, some cases warrant a quick, cursory review of hard-copies or loose files, in minutes.

Still, other reviews warrant the use of web-based tools that allow for secure, remote user access, offering all the bells and whistles of advanced culling, tagging and analytics, over the course of months.  This will come down to the proportional relationship between – case-exposure, scope, budget, volume of data, and time.

Regardless of the approach you select, a valuable project manager will save you time and money in coming to a more informed decision, based on the aforementioned factors.

Producing the Responsive Data

When it comes time to produce, you will want to work with a discovery management team that understands the nuances of production.  For instance, what court orders and/or stipulations depict the method of production?  Are files to be produced as images, or will all (or some) files require a native-production?  Is there a production deadline, and can the data be produced on a rolling basis?

Some attorneys do not consider these items when meeting/conferring on the matter, early on, and having a competent pre-trial project manager at your side can easily alleviate the stress that may come, down the road.

When it comes to productions, it is also imperative to document items that were flagged for potentially responsive at the outset, however, do not make the production protocol.  This could be because of corruption, password protection, third-party proprietary files, confidentiality issues, privilege, and more.

In these cases of production-exceptions, a good project manager will be able to establish a detailed log (typically one for each hold-back reason), and ensure that placeholders are applied to the production set(s) to maintain a proper notice of items withheld.  The logs should be descriptive enough to support your withholding, however, not giving up actual privilege or confidential text, itself, whether redacted or removed in its entirety.

If the tribunal eventually requires the production of some data withheld, your discovery support team can reference the log details and correspond the entries with the exact document, securely hosted, using unique file identification.


Project Management Reporting

ALL project managers should have a good and comfortable practice with reporting the actions taken during their litigation support services.  Whether an initial milestone report, data inventory logs, exception sheets, or a close-out report; regular recurring reports are crucial to maintain a record for good reference in the case, and securing the defensibility element of good litigation practice.

Today, most litigation support tools afford convenient ways to kick-out reports, pertaining to inventory, exceptions, data-hosted, and production logs.  However, these reports tend to be unpolished and raw, and not easily digested by the end-clients.  A helpful discovery project manager will be able to interpret these metrics and draft a more understandable report(s) that will meet the requirements of counsel and their team.

After all, some folks prefer to be briefed via teleconference, while others will want 24/7/365 access to a shared report, regularly update.  Pre-Trial management teams should be able to understand, and adapt to, the differences between the attorney firms they support, and make attorneys’ lives easier during litigation.

Attorneys’ Guide to Pre-Trial Project Management

At LITeGATION, we know the process of Pre-Trial Support and how important it is to manage data in an efficient, cost-effective way.  We pride ourselves on intimate case-by-case dealings with our clients and have extensive experience during the discovery phase of litigation.  For Pre-Trial Project Management or any litigation support service, contact us today for a free consultation.


James Cortopassi

James Cortopassi

James Cortopassi brings nearly 20 years of eDiscovery experience to his practice as a leader in litigation support and eDiscovery coordination. Mr. Cortopassi has managed thousands of cases involving forensic collections, data processing & hosted solutions, managed document review, ESI productions, trial technology services, and workflow-innovation. Mr. Cortopassi is a member of the Association of Certified E-Discovery Specialists (ACEDS).
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Forensic Collection of Electronically Stored Information

Forensic Collection of Electronically Stored Information

A forensic collection is the acquisition and preservation of digital data. The collection is an integral part of the eDiscovery process, and collections can be full (bit-for-bit) or pointed to a subset of all data, depending on the case requirements. Once validated, a defensible collection workflow can be offered for one’s case. The collected electronically stored information (ESI) will then be culled, analyzed, and further validated, as needed. Now, the culled data-set(s) can be prepared for review, coding and production during litigation.

Where does the data come from?

The collection can be compiled from various sources. Anywhere that data can reside, data can be found. Data can be collected from devices such as but not limited to; servers, desktop computers, laptops, external hard drives, smart phones, and tablets. Additionally, cloud-based applications (e.g., social media, web-share platforms, and certain email) can be accessible by forensic professionals. Today, even deleted data can be recovered and made available for review and analysis.

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How is data collected?

When litigation presents a need for the collection of ESI, there are a several different methods that can be exercised by a forensic professional.

  • In-Person ESI Collection
    This method involves an in-persona meeting with a forensic professional. The forensic professional will be able to acquire data from multiple sources, simultaneously, and immediately address any shifts in collection-scope. The client’s IT team will typically assist in mapping the data retention infrastructure prior to the acquisition taking place, in order to allow for a more seamless, efficient approach to the collection efforts.
  • Self-Collection Kit
    This method is becoming more common amongst forensic professionals and their clients. Like the in-persona approach, this method of collection can range from a specific pointed location of interest to an extensive, broad acquisition of all ESI available. This method is viewed favorably for its quick delivery, convenient hours of collection, and cost-effectiveness.
  • Remote Data Collection 
    Similar to Self-Collection Kits but requires a secure remote internet connection to a designated server. This method must overcome the barriers of company security policies restricting such access, and typically requires more oversight and IT compliance than a self-guided kit.

Regardless of the method of collection one implements, all forms of forensic acquisition will produce comprehensive reports and details as to the data-management approach best suited for the matter. Typically, the forensic collection team will confer with the attorneys as to the findings, and how the recovered data should be treated, considering the scope, budget and exposure of the case at bar. Once data has been collected, data culling methods can resume in order to narrow the review set even more.

The Benefits of a Certified Computer Examiner

There are many advantages of contacting a Certified Computer Examiner (CCE). The data collection process can be overwhelming to some and, accordingly, should be conducted by trained professionals. These trained professionals use the latest forensic tools and procedures, as to avoid data-manipulation or spoliation. A CCE will be able to guide through the data and present an outline. Those who contact a CCE for their services should feel assured that they are moving forward in a legally defensible manner.


In order to have become certified, these professionals must have completed courses and have at least 18 months experience with collection tools. Every two years the professional must re-certify their certification.


As per The International Society of Forensic Computers, a CCE must “Provide a fair, vendor neutral, uncompromised process for certifying the competency of forensic computer examiners. ” This requirement will benefit any party looking for a CCE to validate information for their case.


A CCE will be able to draft reports in-line with their independent findings. As a result of the data acquisition efforts; such reporting will include details regarding the data sought, location(s) where data was stowed, method(s) of collection, findings as to the clients depicted scope and requirements, and the ability to defend such procedures at the trial or hearing (by the way of testimony, if necessary).

Preservation and Security

Password Data Safety Abstract Internet Technology Concept Illustration with Closed Padlock Icon and Digital Data Background.

When it comes to the integrity and authentication of the collected data, a proper chain of collection/custody log will be established. The purpose of the log is to present documentation of how the data originated. The log will detail how the data came to be collected, the analysis of the data, and how the data was kept preserved until trial. The chain of collection/custody log will corroborate the authentication of the evidence, as any altercations to the data will need to be logged.

At LITeGATION we know the process of eDiscovery and how important it is to gather forensic collections. No matter what the platform or device, our Certified Computer Examiners (CCE) are prepared to help you develop a collection workflow, initiate the proper data-acquisition, and get you prepared for the analysis of you responsive data.

For forensic collections or any litigation support service, contact to us today for a free consultation.

James Cortopassi
James Cortopassi

James Cortopassi brings nearly 20 years of eDiscovery experience to his practice as a leader in litigation support and eDiscovery coordination. Mr. Cortopassi has managed thousands of cases involving forensic collections, data processing & hosted solutions, managed document review, ESI productions, trial technology services, and workflow-innovation.
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Electronic Discovery Expands the Role of Litigation Support – By James Cortopassi

Electronic discovery, also known as e-discovery or ediscovery, serves the purpose of seeking, uncovering, and preparing electronic evidence during the pretrial process in civil and criminal cases. Electronically stored information (ESI) such as e-mail text, images, databases, websites, and even computer programs can provide litigation attorneys with vital information that can also be used in court.

At LITEGATION (www.litegation.com), an East Coast firm providing litigation technology support, ediscovery has become intrinsic to the discovery phase in many litigation cases. As a leader of the e-discovery process, I lead a team of litigation and document specialists in the acquisition, handling, transfer, and storage of large electronic legal files. Using cost-effective software and techniques in accordance with the Federal Rules of Civil Procedure, LITEGATION can accelerate the potentially burdensome process of culling and reviewing large files. LITEGATION also offers digital forensics services, conventional document services, and data hosting for accurate document review.

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