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Adding Evidence Items with FTK Imager – eDiscovery Best Practices

A couple of weeks ago, we talked about the benefits and capabilities of Forensic Toolkit (FTK) Imager, which is a computer forensics software application provided by AccessData, as well as how to download your own free copy.  Then, last week, we discussed how to create a disk image.  This week, let’s discuss how to add evidence items with FTK Imager for the purpose of reviewing the contents of evidence items, such as physical drives or images that you’ve created.

Adding Evidence Items Using FTK Imager

Last week, I created an image of one of my flash drives to illustrate the process of creating an image.  Let’s take a look at that image as an evidence item.

From the File menu, you can select Add Evidence Item to add a single evidence item to the evidence tree.  You can also select Add All Attached Devices to add all of the attached physical and logical devices (If no media is present in an attached device such as a CD- or DVD-ROM or a DVD-RW, the device is skipped).  In this case we’ll add a single evidence item.

Source Evidence Type: The first step is to identify the source type that you want to review.  You can select Physical Drive or Logical Drive (as we noted before, a physical device can contain more than one logical drive).  You can also select an Image File to view an image file you created before or Contents of a Folder, to look at a specific folder.  In this example, we’ll select Image File to view the image of the flash drive we created and locate the source path of the image file.

The evidence tree will then display the item – you can keep adding evidence items if you want to look at more than one at once.  The top node is the selected item, from which you can drill down to the contents of the item.  This includes partitions and unpartitioned space, folders from the root folder on down and unallocated space, which could contain recoverable data.  Looking at the “Blog Posts” folder, you see a list of files in the folder, along with file slack.  File slack is the space between the end of a file and the end of the disk cluster in which it is stored. It’s common because data rarely fills clusters exactly, and residual data occur when a smaller file is written into the same cluster as a previous larger file, leaving potentially meaningful data.

You’ll also notice that some of the files have an “X” on them – these are files that have been deleted, but not overwritten.  So, with FTK Imager, you can not only view active data, you can also view inactive data in deleted files, file slack or unallocated space!  When you click on a file, you can view the bit-by-bit contents of the file in the lower right window.  You can also right-click on one or more files (or even an entire folder) to display a pop-up menu to enable you to export a copy of the file(s) out and review them with the native software.  You can also Add to Custom Content Image to begin compiling a list of files to put into an image, enabling you to selectively include specific files (instead of all of the files from the device) into the image file you create.

Next time, we’ll discuss Add to Custom Content Image in more detail and discuss creating the custom content image of specific files you select.

For more information, go to the Help menu to access the User Guide in PDF format.

So, what do you think?  Have you used FTK Imager as a mechanism for eDiscovery collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Compelled by Court to Produce Metadata – eDiscovery Case Law

Remember when we talked about the issue of metadata spoliation resulting from “drag and drop” to collect files?  Here’s a case where it appears that method may have been used, resulting in a judgment against the producing party.

In AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society, No. 1:12-cv-053-BLW (D. ID. Apr. 30, 2013), Idaho District Judge B. Lynn Winmill granted the plaintiff’s motion to compel documents, ordering the defendant to identify and produce metadata for the documents in this case.

In this pilot project contract dispute between two health care organizations, the plaintiff filed a motion to compel after failing to resolve some of the discovery disputes with the defendant “through meet and confers and informal mediation with the Court’s staff”.  One of the disputes was related to the omission of metadata in the defendant’s production.

Judge Winmill stated that “Although metadata is not addressed directly in the Federal Rules of Civil Procedure, it is subject to the same general rules of discovery…That means the discovery of metadata is also subject to the balancing test of Rule 26(b)(2)(C), which requires courts to weigh the probative value of proposed discovery against its potential burden.” {emphasis added}

“Courts typically order the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form”, Judge Winmill continued, but noted that “there is no dispute that Good Samaritan essentially agreed to produce metadata, and would have produced the requested metadata but for an inadvertent change to the creation date on certain documents.”

The plaintiff claimed that the system metadata was relevant because its claims focused on the unauthorized use and misappropriation of its proprietary information and whether the defendant used the plaintiff’s proprietary information to create their own materials and model, contending “that the system metadata can answer the question of who received what information when and when documents were created”.  The defendant argued that the plaintiff “exaggerates the strength of its trade secret claim”.

Weighing the value against the burden of producing the metadata, Judge Winmill ruled that “The requested metadata ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ Fed.R. Civ.P. 26(b)(1). Thus, it is discoverable.” {emphasis added}

“The only question, then, is whether the burden of producing the metadata outweighs the benefit…As an initial matter, the Court must acknowledge that Good Samaritan created the problem by inadvertently changing the creation date on the documents. The Court does not find any degree of bad faith on the part of Good Samaritan — accidents happen — but this fact does weight in favor of requiring Good Samaritan to bear the burden of production…Moreover, the Court does not find the burden all that great.”

Therefore, the plaintiff’s motion to compel production of the metadata was granted.

So, what do you think?  Should a party be required to produce metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How to Create an Image Using FTK Imager – eDiscovery Best Practices

A few days ago, we talked about the benefits and capabilities of Forensic Toolkit (FTK), which is a computer forensics software application provided by AccessData, as well as how to download your own free copy.  Now, let’s discuss how to create a disk image.

Before we begin, it’s important to note that best practices when creating a disk image includes the use of a write blocker.  Write blockers are devices that allow data to be acquired from a drive without creating the possibility of accidentally damaging the drive contents. They allow read commands to pass but block write commands, protecting the drive contents from being changed.  Tableau and FireFly are two examples of write blockers.

It’s also important to note that while we’re showing you how to “try this at home”, use of a certified forensic collection specialist is recommended when collecting data forensically that could require expert testimony on the collection process.

Create an Image Using FTK Imager

I’m going to create an image of one of my flash drives to illustrate the process.  To create an image, select Create Disk Image from the File menu.

Source Evidence Type: To image an entire device, select Physical Drive (a physical device can contain more than one Logical Drive).  You can also create an image of an Image File, which seems silly, but it could be desirable if, say, you want to create a more compressed version of the image.  You can also image the specific Contents of a Folder or of a Femico Device (which is ideal for creating images of multiple CDs or DVDs with the same parameters).  In this example, we’ll select Physical Drive to create an image of the flash drive.

Source Drive Selection: Based on our selection of physical drive, we then have a choice of the current physical drives we can see, so we select the drive corresponding to the flash drive.

Create Image: Here is where you can specify where the image will be created.  We also always choose Verify images after they are created as a way to run a hash value check on the image file.  You can also Create directory listings of all files in the image after they are created, but be prepared that this will be a huge listing for a typical hard drive with hundreds of thousands of entries.

Select Image Type: This indicates the type of image file that will be created – Raw is a bit-by-bit uncompressed copy of the original, while the other three alternatives are designed for use with a specific forensics program.  We typically use Raw or E01, which is an EnCase forensic image file format.  In this example, we’re using Raw.

Evidence Item Information: This is where you can enter key information about the evidence item you are about to create to aid in documenting the item.  This information will be saved as part of the image summary information once the image is complete.

Select Image Destination: We’ll browse to a folder that I’ve created called “FTKImage” on the C: drive and give the image a file name.  Image Fragment Size indicates the size of each fragment when you want to break a larger image file into multiple parts.  Compression indicates the level of compression of the image file, from 0 (no compression) to 9 (maximum compression – and a slower image creation process).  For Raw uncompressed images, compression is always 0.  Use AD Encryption indicates whether to encrypt the image – we don’t typically select that, instead choosing to put an image on an encrypted drive (when encryption is desired).  Click Finish to begin the image process and a dialog will be displayed throughout the image creation process.  Because it is a bit-by-bit image of the device, it will take the same amount of time regardless of how many files are currently stored on the device.

Drive/Image Verify Results: When the image is complete, this popup window will appear to show the name of the image file, the sector count, computed (before image creation) and reported (after image creation) MD5 and SHA1 hash values with a confirmation that they match and a list of bad sectors (if any).  The hash verification is a key check to ensure a valid image and the hash values should be the same regardless which image type you create.

Image Summary: When the image is complete, click the Image Summary button to see the view a summary of the image that is created, including the evidence item information you entered, drive information, hash verification information, etc.  This information is also saved as a text file.

Directory Listing: If you selected Create directory listings of all files in the image, the results will be stored in a CSV file, which can be opened with Excel.

And, there you have it – a bit-by-bit image of the device!  You’ve just captured everything on the device, including deleted files and slack space data.  Next time, we’ll discuss Adding an Evidence Item to look at contents or drives or images (including the image we created here).

For more information, go to the Help menu to access the User Guide in PDF format.

So, what do you think?  Have you used FTK Imager as a mechanism for eDiscovery collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

More Updates from the EDRM Annual Meeting – eDiscovery Trends

Yesterday, we discussed some general observations from the Annual Meeting for the Electronic Discovery Reference Model (EDRM) group and discussed some significant efforts and accomplishments by the (suddenly heavily talked about) EDRM Data Set project.  Here are some updates from other projects within EDRM.

It should be noted these are summary updates and that most of the focus on these updates is on accomplishments for the past year and deliverables that are imminent.  Over the next few weeks, eDiscovery Daily will cover each project in more depth with more details regarding planned activities for the coming year.

Model Code of Conduct (MCoC)

The MCoC was introduced in 2011 and became available for organizations to subscribe last year.  To learn more about the MCoC, you can read the code online here, or download it as a 22 page PDF file here.  Subscribing is easy!  To voluntarily subscribe to the MCoC, you can register on the EDRM website here.  Identify your organization, provide information for an authorized representative and answer four verification questions (truthfully, of course) to affirm your organization’s commitment to the spirit of the MCoC, and your organization is in!  You can also provide a logo for EDRM to include when adding you to the list of subscribing organizations.  Pending a survey of EDRM members to determine if any changes are needed, this project has been completed.  Team leaders include Eric Mandel of Zelle Hofmann, Kevin Esposito of Rivulex and Nancy Wallrich.

Information Governance Reference Model (IGRM)

The IGRM team has continued to make strides and improvements on an already terrific model.  Last October, they unveiled the release of version 3.0 of the IGRM.  As their press release noted, “The updated model now includes privacy and security as primary functions and stakeholders in the effective governance of information.”  IGRM continues to be one of the most active and well participated EDRM projects.  This year, the early focus – as quoted from Judge Andrew Peck’s keynote speech at Legal Tech this past year – is “getting rid of the junk”.  Project leaders are Aliye Ergulen from IBM, Reed Irvin from Viewpointe and Marcus Ledergerber from Morgan Lewis.

Search

One of the best examples of the new, more agile process for creating deliverables within EDRM comes from the Search team, which released its new draft Computer Assisted Review Reference Model (CARRM), which depicts the flow for a successful Computer Assisted Review project. The entire model was created in only a matter of weeks.  Early focus for the Search project for the coming year includes adjustments to CARRM (based on feedback at the annual meeting).  You can also still send your comments regarding the model to mail@edrm.net or post them on the EDRM site here.  A webinar regarding CARRM is also planned for late July.  Kudos to the Search team, including project leaders Dominic Brown of Autonomy and also Jay Lieb of kCura, who got unmerciful ribbing for insisting (jokingly, I think) that TIFF files, unlike Generalissimo Francisco Franco, are still alive.  🙂

Jobs

In late January, the Jobs Project announced the release of the EDRM Talent Task Matrix diagram and spreadsheet, which is available in XLSX or PDF format. As noted in their press release, the Matrix is a tool designed to help hiring managers better understand the responsibilities associated with common eDiscovery roles. The Matrix maps responsibilities to the EDRM framework, so eDiscovery duties associated can be assigned to the appropriate parties.  Project leader Keith Tom noted that next steps include surveying EDRM members regarding the Matrix, requesting and co-authoring case-studies and white papers, and creating a short video on how to use the Matrix.

Metrics

In today’s session, the Metrics project team unveiled the first draft of the new Metrics model to EDRM participants!  Feedback was provided during the session and the team will make the model available for additional comments from EDRM members over the next week or so, with a goal of publishing for public comments in the next two to three weeks.  The team is also working to create a page to collect Metrics measurement tools from eDiscovery professionals that can benefit the eDiscovery community as a whole.  Project leaders Dera Nevin of TD Bank and Kevin Clark noted that June is “budget calculator month”.

Other Initiatives

As noted yesterday, there is a new project to address standards for working with native files in the different EDRM phases led by Eric Mandel from Zelle Hofmann and also a new initiative to establish collection guidelines, spearheaded by Julie Brown from Vorys.  There is also an effort underway to refocus the XML project, as it works to complete the 2.0 version of the EDRM XML model.  In addition, there was quite a spirited discussion as to where EDRM is heading as it approaches ten years of existence and it will be interesting to see how the EDRM group continues to evolve over the next year or so.  As you can see, a lot is happening within the EDRM group – there’s a lot more to it than just the base Electronic Discovery Reference Model.

So, what do you think?  Are you a member of EDRM?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Reporting from the EDRM Annual Meeting and a Data Set Update – eDiscovery Trends

The Electronic Discovery Reference Model (EDRM) Project was created in May 2005 by George Socha of Socha Consulting LLC and Tom Gelbmann of Gelbmann & Associates to address the lack of standards and guidelines in the electronic discovery market.  Now, beginning its ninth year of operation with its annual meeting in St. Paul, MN, EDRM is accomplishing more than ever to address those needs.  Here are some highlights from the meeting, and an update regarding the (suddenly heavily talked about) EDRM Data Set project.

Annual Meeting

Twice a year, in May and October, eDiscovery professionals who are EDRM members meet to continue the process of working together on various standards projects.  This will be my eighth year participating in EDRM at some level and, oddly enough, I’m assisting with PR and promotion (how am I doing so far?).  eDiscovery Daily has referenced EDRM and its phases many times in the 2 1/2 years plus history of the blog – this is our 144th post that relates to EDRM!

Some notable observations about today’s meeting:

  • New Participants: More than half the attendees at this year’s annual meeting are attending for the first time.  EDRM is not just a core group of “die-hards”, it continues to find appeal with eDiscovery professionals throughout the industry.
  • Agile Approach: EDRM has adopted an Agile approach to shorten the time to complete and publish deliverables, a change in philosophy that facilitated several notable accomplishments from working groups over the past year including the Model Code of Conduct (MCoC), Information Governance Reference Model (IGRM), Search and Jobs (among others).  More on that tomorrow.
  • Educational Alliances: For the first time, EDRM has formed some interesting and unique educational alliances.  In April, EDRM teamed with the University of Florida Levin College of Law to present a day and a half conference entitled E-Discovery for the Small and Medium Case.  And, this June, EDRM will team with Bryan University to provide an in-depth, four-week E-Discovery Software & Applied Skills Summer Immersion Program for Law School Students.
  • New Working Group: A new working group to be lead by Eric Mandel of Zelle Hoffman was formed to address standards for working with native files in the different EDRM phases.

Tomorrow, we’ll discuss the highlights for most of the individual working groups.  Given the recent amount of discussion about the EDRM Data Set group, we’ll start with that one today!

Data Set

The EDRM Enron Data Set has been around for several years and has been a valuable resource for eDiscovery software demonstration and testing (we covered it here back in January 2011).  The data in the EDRM Enron PST Data Set files is sourced from the FERC Enron Investigation release made available by Lockheed Martin Corporation.  It was reconstituted as PST files with attachments for the EDRM Data Set Project.  So, in essence EDRM took already public domain available data and made the data much more usable.  Initially, the data was made available for download on the EDRM site, then subsequently moved to Amazon Web Services (AWS).

In the past several days, there has been much discussion about the personally-identifiable information (“PII”) available within the FERC (and consequently the EDRM Data Set), including social security numbers, credit card numbers, dates of birth, home addresses and phone numbers.  Consequently, the EDRM Data Set has been taken down from the AWS site.

The Data Set team led by Michael Lappin of Nuix and Eric Robi of Elluma Discovery has been working on a process (using predictive coding technology) to identify and remove the PII data from the EDRM Data Set.  Discussions about this process began months ago, prior to the recent discussions about the PII data contained within the set.  The team has completed this iterative process for V1 of the data set (which contains 1,317,158 items), identifying and removing 10,568 items with PII, HIPAA and other sensitive information.  This version of the data set will be made available within the EDRM community shortly for peer review testing.  The data set team will then repeat the process for the larger V2 version of the data set (2,287,984 items).  A timetable for republishing both sets should be available soon and the efforts of the Data Set team on this project should pay dividends in developing and standardizing processes for identifying and eliminating sensitive data that eDiscovery professionals can use in their own data sets.

The team has also implemented a Forensic Files Testing Project site where users can upload their own “modern”, non-copyrighted file samples that are typically encountered during electronic discovery processing to provide a more diverse set of data than is currently available within the Enron data set.

So, what do you think?  How has EDRM impacted how you manage eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

When Lawyers Get Sued, They Have Preservation Obligations Too – eDiscovery Case Law

In Distefano v. Law Offices of Barbara H. Katsos, PC., No. CV 11-2893 (JS) (AKT) (D. ED NY Mar. 29, 2013), New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

The plaintiff alleged professional negligence by the defendant related to her representation of his franchise business for Cold Stone Creamery stores.  During a Discovery Status Conference, it was revealed that the defendant had gotten rid of her computer before the litigation began, as she noted in her affidavit that she was advised by a third-party individual who fixed her office computers that they could not be repaired.  As she used AOL for email correspondence, she contacted AOL “to inquire if emails from several years ago could be recovered by AOL”, but was told that they “could not recover emails from several years ago for the stated email address”.  After receiving the defendant’s affidavit, the plaintiff filed a motion for spoliation.

With regard to the defendant’s duty to preserve information related to her representation of the plaintiff, Judge Tomlinson stated:

“The Court concludes that Katsos’ duty to preserve documents arose as early as late February 2009, when Michael DiStefano terminated the attorney-client relationship between Plaintiffs and Defendants.”  On February 24, 2009, the plaintiff send the defendant a letter terminating the representation “immediately” and stated that he would “communicate with you further, in writing, so as to explain the reasons why I am discharging you.”  Noting that the “language of Michael DiStefano’s letter gives the appearance that Distefano was not satisfied with Katsos’ work”, Judge Tomlinson also noted that “[i]n assessing whether litigation was reasonably foreseeable in these circumstances, the Court cannot ignore the fact that Katsos is an attorney and should have been attuned to the prospect of litigation.”

To determine the defendant’s culpable state of mind, Judge Tomlinson ordered a hearing on May 13 for the defendant to “be prepared to testify regarding, among other things, the following areas:

  1. Katsos’ normal document preservation/retention/deletion/destruction practices;
  2. the number of computers utilized in her office prior to 2009, when the computers were purchased, and the specific circumstances surrounding the breakdown of each of those computers;
  3. the service agreements for those computers and the vendor(s) used;
  4. whether Katsos maintained a network server;
  5. AOL’s automatic deletion policies to the extent they were explained to Katsos;
  6. a complete list of every email address used by Defendant Law Offices of Barbara H. Katsos, PC and Defendant Barbara Katsos or her staff to communicate with Plaintiffs;
  7. Katsos’ attempts to gain access to the email accounts used by her paralegals and interns referenced in Paragraph 5 of Katsos Aff. II and page 16 of Plaintiffs’ Memorandum;
  8. the document preservation steps undertaken by Katsos when Plaintiffs instituted an adversary proceeding against her in March of 2010;
  9. the retention and utilization of the services of Jan Sloboda.” (the third-party individual that advised her to replace her computers)

The plaintiffs were also ordered to identify “general categories of documents that have been adversely affected” to help determine the relevance of the data in question and were permitted to question the defendant at the hearing.

So, what do you think?  Was this an appropriate course of action to determine whether sanctions are appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Image is Everything, But it Doesn’t Have to Cost Anything – eDiscovery Best Practices

Do you remember this commercial?  Can you believe it’s 23 years old?

Let’s recap.  So far, in our discussion of free utilities for collection of data for eDiscovery, we’ve discussed the pitfalls of using drag and drop, the benefits of Robocopy (illustrating with the same example copy) and the benefits (and pitfalls) of Richcopy for targeted collection.  But, are there any free tools that will enable you to perform a bit-by-bit forensic image copy that includes deleted files and slack space data?  Yes, there is.

Forensic Toolkit (FTK) is a computer forensics software application provided by AccessData.  The toolkit includes a standalone disk imaging program called FTK Imager.  FTK Imager is a free tool that saves an image of a hard disk in one file or in segments that may be reconstructed later. It calculates MD5 or SHA-1 hash values of the original and the copy, confirming the integrity of the data before closing the files.

With FTK Imager, you can:

  • Create forensic images of local hard drives, floppy diskettes, Zip disks, CDs, and DVDs, entire folders, or individual files from various places within the media.
  • Preview files and folders on local hard drives, network drives, floppy diskettes, Zip disks, CDs, and DVDs – including files located in container files such as ZIP or RAR files.
  • Preview the contents of forensic images stored on the local machine or on a network drive.
  • Mount an image for a read-only view that leverages Windows Explorer to see the content of the image exactly as the user saw it on the original drive.
  • Export files and folders from forensic images.
  • See and recover files that have been deleted from the Recycle Bin, but have not yet been overwritten on the drive.
  • Create MD5 or SHA-1 hashes of files and generate hash reports for regular files and disk images (including files inside disk images) that you can later use as a benchmark to prove the integrity of your case evidence. When a full drive is imaged, a hash generated by FTK Imager can be used to verify that the image hash and the drive hash match after the image is created, and that the image has remained unchanged since acquisition.

Like all forensically-sound collection tools, it retains the file system metadata (and the file path) and creates a log of the files copied.  You can also provide Case Number, Evidence Number, Unique Description, Examiner, and any Notes for tracking purposes to aid in chain of custody tracking.

To download FTK Imager, you can go to the AccessData Product Downloads page here.  Look for the link for FTK Imager in “Current Releases” (it’s currently the seventh item on the list) and open the folder and select the current version of FTK Imager (currently v3.1.2, released on 12/13/12).

Next week, we will begin to discuss how to use FTK Imager to preview files, create forensic images, recover deleted files and use hash values to validate your image.

So, what do you think?  Have you used FTK Imager as a mechanism for eDiscovery collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough – eDiscovery Case Law

In United States ex rel. King v. Solvay, S.A., No. H-06-2662, 2013 U.S. Dist. LEXIS 30752 (S.D. Tex. Mar. 5, 2013), Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

In this False Claims Act, the plaintiffs, qui tam relators whose claims led to investigation by several state attorneys general, claimed the defendants engaged in off-label promotion of drugs, violated the anti-kickback statute, and retaliated against them.

The defendant, Solvay Pharmaceuticals, now doing business as Abbott Products (after Abbott acquired Solvay in 2010), filed a motion seeking a protective order from having to respond to the relators’ discovery requests about ongoing fraud, which it claimed were irrelevant to the claims in the lawsuit.

During the course of discovery, the company imposed a litigation hold and preserved more than 2,500 eMail backup tapes, more than 56,000 network share backup tapes, and roughly 5 terabytes of data on its network share drives—all dating from the 1990s through 2010 – and covering 89 custodians, both former and current employees. But the relators requested more. If the litigation hold were to expand to accommodate the relators’ requests, it would require the company to dedicate additional server space to store the data. Moreover, the company argued that it would cost at least $480,000 to process the eMails it was already preserving, and the review of those eMails would cost $2.3 million, excluding quality control, privilege review, and production costs. Adding the additional data from after Abbott acquired Solvay would drive these costs substantially higher. The relators objected, suggesting that the company’s “sweeping generalizations” about the potential burden were inaccurate. In the alternative, the relators agreed to an end date of December 31, 2012 or to depose witnesses to determine the appropriate cutoff.

Under Federal Rule of Civil Procedure 26(c)(1), courts can limit discovery to protect parties from undue burden or expense. Judge Miller agreed with the defendant that a few references that conduct was continuing “‘to the present’ in a 267-page complaint containing more than 768 paragraphs does not justify the burden and expense associated with unfettered discovery ‘to the present’ in a case in which discovery is already going to be incredibly expensive and time-consuming.” Although Judge Miller was willing to extend the relevant time frame to include some claims outside of the relators’ personal knowledge because the real party in interest was the United States, he was not willing to go so far as to permit the “generalized claims of ongoing conduct to form the basis for a fishing expedition.”  As a result, he granted the motion for a protective order, limiting the time frames for Solvay’s discovery obligations.

So, what do you think?  Was the judge right to limit the defendant’s discovery obligations?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

You Don’t Have to Be Rich to Use Richcopy – eDiscovery Best Practices

A couple of weeks ago, we discussed the pitfalls of using drag and drop for collecting files for eDiscovery and illustrated an example using a blog post that I wrote about a month ago in a Word document for the post Five Common Myths About Predictive Coding.  If you followed the steps along with one of your own files, you noticed that the resulting file appeared to have been modified before it was created, which reflects spoliation of the metadata during the copy process.

Last week, we discussed the benefits of Robocopy, how to access it via the command line prompt (if you have Windows Vista or later) and how to get it (if you don’t).  Then, we performed an example copy (using an Excel script I use to create the copy) and took a look at the results to show how the date metadata was preserved during the copy.  If you’d still like a copy of the Excel Robocopy script, feel free to request it by emailing me at daustin@cloudnincloudnine.comm.

If you want to be able to perform a forensically sound targeted collection, but would prefer a GUI based tool for performing the copy (instead of a command-line tool like Robocopy), then perhaps you should consider Richcopy.  RichCopy is a free computer utility program developed by Ken Tamaru of Microsoft to copy file directories.  It has some advantages, but also some pitfalls, to consider as a targeted copy and collection tool.

One of the benefits of Richcopy (in addition to the GUI interface) is that it copies several files simultaneously (“multi-threaded”), which can drastically reduce the time required for multi-gigabyte file copy operations (earlier versions of Robocopy didn’t support multi-threaded copying, but the current one does, with the /MT[:n] command).

Unfortunately, Richcopy has not been updated in nearly four years by the developer, so you may run into issues (for example, it apparently doesn’t handle file names longer than 255 characters) and, as a free utility, it’s not supported by Microsoft.  Also, Help doesn’t open up throughout much of the application, so getting additional information from the help file is not always easy.  Consider yourself warned.

You can download a copy of Richcopy from the link in this TechNet magazine article.  I did so, and performed the same copy of the Word document for the post Five Common Myths About Predictive Coding that I performed in the other cases.  Let’s see how Richcopy handled that file copy.

You’ll see below that the main form of Richcopy provides the ability to select the source and destination paths, and specify options (as indicated by the red box).  Once you have the parameters set, click the green “Go” button (as indicated by the red circle) to perform the copy.  Progress and logging information will appear in the two status windows below.

The Options button opens a dialog for specifying a variety of options, including copy parameters, thread counts, file attributes and error handling, files to be included and/or excluded (by name, extension or attributes, such as excluding system files) and logging.  As you’ll see below, I set the “files to be included” option to copy the example file I’ve been using in the other tests.

The result?  I did get a copy of the selected file which contained preserved file metadata (i.e., the Created date and the Accessed date reflect the original date and time when the file was created and last accessed).  However, it also copied empty folder for all of the folders underneath the source folder.  I couldn’t figure out how to turn it off and the aforementioned Help file issues didn’t enable me to identify a workaround.

If you absolutely require a GUI interface for free targeted file collection, Richcopy may be a better alternative than Robocopy, but not necessarily the best alternative.  Next week, we’ll begin discussing another free GUI alternative that not only supports targeted collection of files, but also supports bit-by-bit imaging to capture deleted files and slack space data!

So, what do you think?  Have you used Richcopy as a mechanism for eDiscovery collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Changes to Federal eDiscovery Rules Could Be Coming Within a Year – eDiscovery Trends

As reported by Henry Kelston in Law Technology News (Are We on the Cusp of Major Changes to E-Discovery Rules?), another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  The United States Courts’ Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

Potential Revisions that Have Impact to Discovery Include:

  • Rule 26: Changes incorporate a limitation to the general scope of discovery allowed by Rule 26(b)(1) as to what is proportional to the needs of the case, measured by the cost-benefit calculus now required by Rule 26(b)(2)(C)(iii) that is currently used most often when a party moves to limit discovery.
  • Rules 30 and 31: Changes reduce the number of depositions (oral and written) allowed per side, from 10 to 5, and reduce the time limit for each deposition, from 7 hours to 6 hours.
  • Rule 33: Changes reduce the number of interrogatories permitted, from 25 to 15.
  • Rule 34: Amendment requires that objections to document requests be stated with specificity and include a statement as to whether any responsive materials are being withheld on the basis of the objection.
  • Rule 36: Implements a new limit of 25 requests for admission for each party, with requests to admit the genuineness of documents expressly exempted from the limit of 25.
  • Rule 37: The proposed amendment in Rule 37(e) is intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation, establishing a non-sanction category of measures a court may impose when it finds that a party failed to meet its preservation obligation, such as allowing additional discovery, requiring a party to recreate or obtain the information it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.  Rule 37(b)(2)(A) includes a “hotly debated” amendment that the court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

The proposed changes to Rule 37, in particular, appear to give producing parties more latitude when failing to meet their preservation obligation was not willful or in bad faith.  As the article notes, “if the standing committee approves the proposed amendments for publication at its meeting in early June, the amendments would be published for public comment soon thereafter. The public comment period for proposed rules normally lasts six months. The advisory committee, anticipating a high level of public interest in the proposals, plans to hold several days of public hearings in different cities around the U.S., with dates and locations yet to be announced.”

So, what do you think?  Are you pleased or concerned with the proposed amendments?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.