Electronic Evidence and Discovery What Every Lawyer Should Know Now

by Lange, Michele C.S.; Nimsger, Kristin M.

• ISBN13: 9781604423822
• ISBN10: 160442382X
• Edition: 2nd
• Format: Paperback
• Copyright: 2010-02-16
• Publisher: American Bar Association

Summary

This book will increase your efficiency and accuracy to the representation of your clients in discovery matters large and small. It provides the latest information regarding the legal and technological aspects of the e-discovery process. You will learn the special characteristics of ESI and challenges faced in e-discovery, how to prepare for litigation by implementing a document preservation plan, the standards counsel must follow during e-discovery to meet judicial expectations and more.

Table of Contents

Foreword	p. ix
About The Authors	p. xi
From The Authors	p. xv
Disclaimer	p. xvii
Acknowledgments	p. xix
Discovery: The New Philosophy	p. 1
The Prominent Role of Electronically Stored Information	p. 1
Current State of Affairs: The Intersection of Law and Technology	p. 4
The Federal Rules of Civil Procedure: Practical ESI Analysis	p. 25
Federal Rules Overview	p. 25
Rule 16: Pretrial Conferences; Scheduling; Management	p. 26
Rule 26: Duty to Disclose; General Provisions Governing Discovery	p. 28
Rule 33: Interrogatories to Parties	p. 43
Rule 34: Producing Documents, Electronically Stored Information, and Tangible Things; or Entering onto Land, for Inspection and Other Purposes	p. 44
Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions	p. 51
Practical Legal Implications	p. 55
ESI Legal Overview	p. 56
Early Case Assessment	p. 57
Discoverability	p. 60
Duties of Counsel	p. 67
Data Locations and Accessibility	p. 72
Retention, Preservation, and Sanctions for Spoliation	p. 82
Privilege and Inadvertent Waiver	p. 95
Requesting and Responding	p. 104
Review and Production Considerations	p. 125
Cost Allocation	p. 135
Trial Issues	p. 142
Discovery Technology and Innovations	p. 153
Introduction	p. 154
The Basics of E-Discovery Technology	p. 155
Technologies in Decline: Paper Discovery and Litigation Support Databases	p. 177
Technologies on the Rise: Advanced E-Discovery Innovations	p. 181
Working with an E-Discovery Service Provider	p. 200
Computer Forensics	p. 207
Computer Forensics Overview	p. 208
The Computer Forensics Process	p. 210
Data Destruction-When Is Data Really Gone?	p. 219
Selecting a Computer Forensics Expert	p. 226
When to Hire a Computer Forensics Expert	p. 230
Defining Computer Forensics Terminology	p. 232
Beyond Computer Forensics: Investigations and Security	p. 236
Electronic Disclosure in UK Litigation and Investigations	p. 239
Introduction	p. 239
UK v. U.S. Style Discovery	p. 240
Duty to Preserve Electronic Evidence in the UK	p. 241
Duty to Search for and Disclose Electronic Evidence in the UK	p. 249
How UK Parties Are Approaching E-Disclosure in Practice	p. 253
Best Practices for E-Disclosure in the UK	p. 260
Recent Developments and Trends	p. 261
The Tide Is Turning	p. 263
The Past, Present, and Future	p. 265
Putting It All Together in the Present	p. 265
Past Predictions	p. 267
Future Forecasts	p. 269
Appendixes
Top E-Discovery Cases Organized by Topic	p. 273
State Court Rules and Statutes Regarding Electronic Discovery	p. 323
Sample Preservation Letter to Client Corporation	p. 349
Sample Preservation Letter to Opponent or Third Party	p. 355
Sample Preservation Letter to Employees and Custodians	p. 359
Sample Preservation Letter to Departing Employees and Custodians	p. 365
Sample Interrogatories	p. 371
Sample Request for Production of Documents	p. 381
Sample Fed. R. Civ. P. 30(b)(6) Deposition Notice	p. 385
Sample Proposed Order Appointing Third Party Neutral Expert	p. 387
Sample Proposed Order Appointing Special Master	p. 391
Secondary Research Resources	p. 395
Glossary of Terms	p. 399
Index	p. 415
Figures
Computer Forensics v. Electronic Discovery	p. 5
Federal Rules of Civil Procedure Overview	p. 26
Practice Point: Making the Most of the Meet and Confer	p. 60
Duties of Counsel	p. 68
ABA Model Rules of Professional Conduct: Rule 3.3 Candor Toward The Tribunal	p. 71
Data Sources and Storage Locations	p. 72
Categories of Data Accessibility	p. 76
E-Discovery Response Team	p. 87
Practice Points: Disclosure of ESI Experts	p. 106
Data Sampling	p. 123
Juror Retention	p. 150
E-Discovery Process	p. 157
Filtering Data	p. 159
Talking Technology: Keyword Filtering	p. 161
Talking Technology: Time and Date Filtering	p. 162
Talking Technology: File Type Filtering	p. 163
Illustrating De-Duplication	p. 166
Filtering Reductions	p. 167
Considerations When Choosing an Online Review Tool	p. 174
Practice Points: More Examples of Audio Files as Legitimate Sources of Discoverable ESI	p. 185
E-mail Analytical Tools	p. 192
Concept Searching	p. 195
Talking Technology: Has Concept Search and Topic Review Revolutionized Document Review?	p. 197
Computer Forensics Process	p. 210
Hardware Imaging Setup	p. 213
Talking Technology: Standards for Handling Digital Evidence	p. 215
Talking Technology: When is Data Recovery Needed in a Forensic Investigation?	p. 216
In the News: Destroying Computer Evidence	p. 225
System Metadata	p. 234
Application Metadata	p. 234
Delete Does Not Mean Delete	p. 235
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