An Introduction to e-Discovery New Cases, Ideas, and Techniques

by Losey, Ralph C.

• ISBN13: 9781604423808
• ISBN10: 1604423803
• Format: Paperback
• Copyright: 2009-10-15
• Publisher: American Bar Association

Summary

No one can operate effectively in the court rooms of tomorrow without a good understanding of wheres, hows and whys of digital evidence. As a cover-to-cover read to learn more about the hot topics and latest case law in e-discovery, this book can provide that understanding. After a read through, this book can be used again and again as a reference, with its appendix of useful reference materials to look up cases and arguments to use in daily practice. It's written in an easy-to-read style, making it perfect for anyone interested in e-discovery. Book jacket.

Author Biography

Ralph C. Losey is a shareholder in the Orlando office Akerman Senterfitt, P.A., where he heads the firm's national electronic discovery practice group. Ralph has also been an avid computer user and technologist since 1978, and is the author of the popular multi-media Internet blog e-Discovery Team. Ralph was one of the first attorneys in the country with an Internet website, and has also written and contributed to several other books and articles on e-discovery.

Table of Contents

Preface	p. ix
About the Author	p. xiii
Introduction to e-Discovery and e-Discovery Teams	p. 1
What Game Does an e-Discovery Team Play?	p. 1
When and Why Should Inside Counsel Start an e-Discovery Team?	p. 15
Why Should Corporations Participate in e-Discovery?	p. 20
e-Discovery Teams: Self-Organization and Development of Evidence Preservation Protocols	p. 22
Two New Articles of Interest on e-Discovery Teams	p. 31
Litigation Survey Suggests Future of e-Discovery	p. 39
Survey of Records Administrators Shows Negligent e-Records Management Is Creating "Stunning Business Risks"	p. 44
e-Discovery at the Harvard Club in New York City	p. 48
Two e-Discovery Guides for Judges Provide Good Advice for All	p. 58
Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass	p. 72
Hospital Defendants Martyred in the Cause of Cooperative e-Discovery	p. 87
New Technologies	p. 97
Sherlock Holmes in the 21st Century: Definitions and Limits of Computer Forensics, Forensic Copies, and Forensic Examinations	p. 97
Star Trek Lessons for e-Discovery	p. 107
Tech v. Law-a Plea for Mutual Respect	p. 111
The "Better Late Than Never" Defense	p. 121
Who's On First? New Case Repeats the Classic Miscommunications Between Law and IT	p. 125
MSG Is Bad For You! (Expansion of an Earlier Essay on Metadata)	p. 135
Blogging and Presenting at LegalTech West 2008	p. 144
The Days of the Bates Stamp Are Numbered	p. 152
Trade Secrets Case Uses MD5 Hash and Keyword Search to Protect Defendants' Rights-Magistrate's Privilege Waiver Order Is Reversed	p. 158
New Case Where Police Use Hash to Catch a "Perp," and My Favored Truncated Hash-Labeling System to Identify the Evidence	p. 169
Venue Analysis Transformed by e-Discovery and the Digitization of Society	p. 177
Spoliation and Sanctions	p. 185
"Book 'em, Danno": Hawaiian Judge Sanctions Company for Trusting Its Top Officers After One Wipes His Laptops, Allegedly to Hide Porn	p. 185
Wells Fargo is Robbed of Staged Documents and Seeks the Death Penalty for the Lawsuit, but Gets an Adverse Inference Instruction Instead	p. 192
Sanctions in the San Diego Hobie Cat Case Not the Tiger We Need to Keep Our Courts Fair	p. 200
"Water Pipe Burst" Excuse Fails to Prevent Costly Order to Restore Backup Tapes After County Fails to Implement a Litigation Hold and Save E-mails	p. 213
Give Peace a Chance: Federal Judge Tries Experimental Method to Resolve a Major e-Discovery Dispute in Non-adversial Manner	p. 221
Court Rejects Attorney's Computer Illiteracy as Excuse for Non-production	p. 236
Search and Review of ESI	p. 243
Thoughts on SEARCH and Victor Stanley, Inc. v. Creative Pipe, Inc.	p. 243
Judge Facciola Cites to My First Book in Important New Opinion on Search	p. 256
Inadequate Keyword Searches by Untrained Lawyers May, in Some Circumstances, Be Sanctionable	p. 261
Criminal Case Raises Interesting e-Discovery Search Issues	p. 268
Adversarial Search, a "Perfect Barrier" to Cost-Effective e-Discovery, and One Litigant's "Aikido-like" Response	p. 275
A Tale of Two London ESI Forums, by Jason R. Baron	p. 285
What the World Was Searching for in 2007	p. 296
e-Discovery Rules and Civil Procedure	p. 305
Report on West-Kroll's "A to Z" E-Discovery Workshop, and Proposal for a Pure Question-and-Answer Format	p. 305
New Case Denies Both Production under Rule 26(b)(2)(B) and Sanctions for Spoliation under Unspoken Rule 37	p. 321
Rule 26 Applied to Prohibit Discovery	p. 325
Best Buy Wins Key e-Discovery Ruling in Fraud Case	p. 331
Declaratory Judgment Approach to Burdensome Pre-litigation Preservation Demand Tried and Rejected: Is This a Case of "No Good Deed Goes Unpunished"?, by Michael Simon	p. 338
California Proposes e-Discovery Laws that Governor Schwarzenegger Will Want to Terminate	p. 348
Are We the Barbarians at the Gate? The Conflict Between Our Rules of Discovery and the Privacy Laws of the Rest of the Civilized World	p. 364
E-Discovery Ethics and the Qualcomm Case	p. 385
Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery	p. 385
The Lessons of Qualcomm: A Wakeup Call for the Legal Profession	p. 405
Qualcomm's "Monumental Discovery Violations" Provoked Only Wimpy Sanctions	p. 414
Sanctions Lifted Against the "Qualcomm Six" and a New Trial Ordered Where They May Now Speak Freely to Defend Themselves	p. 422
ABA Litigation Section Reacts to the Qualcomm Case and Recommends e-Discovery Checklists	p. 429
Summaries of Favorite and Recent e-Discovery Cases	p. 439
Ignorance of Computers Is No Longer a Viable Excuse	p. 439
My Favorite "War-Story" Case	p. 440
The Most Famous and Important e-Discovery Case of All, Zubulake	p. 441
Judges Are Upset by All of the Mistakes	p. 443
More Classic Cases of Interest	p. 444
Summaries of My 30 Favorite e-Discovery Cases in 2008	p. 450
Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc.	p. 450
Baker v. Gerould	p. 451
City of Seattle v. Prof'l Basketball Club, LLC	p. 453
ClearOne Communications v. Chiang	p. 454
Coburn v. PN II, Inc.	p. 456
Daimler Truck N. Am. LLC v. Younessi	p. 457
Ed Schmidt Pontiac-GMC Truck Inc. v. DaimlerChrysler Motors Co., LLC	p. 459
Ferron v. Search Cactus, LLC	p. 460
Flagg v. City of Detroit	p. 461
Grange Mutual Casualty Co. v. Mack	p. 462
Henry v. Quicken Loans, Inc.	p. 464
In re Flash Memory Antitrust Litigation	p. 467
In re Honza	p. 468
In re Seroquel Products Liability Litigation	p. 471
In re Intel Corp. Microprocessor Antitrust Litigation	p. 473
In re Subponea Duces Tecum to AOL	p. 475
In re World Trade Center Disaster Site Litigation	p. 477
Mikron Industries Inc. v. Hurd Windows & Doors, Inc.	p. 478
Peskoff v. Faber	p. 480
Quan v. Arch Wireless	p. 481
Simon Property Group, Inc. v. Taubman Centers, Inc.	p. 482
Southern New England Telephone Co. v. Global NAPs, Inc.	p. 483
Square D Co. v. Scott Elec. Co.	p. 484
Sterle v. Elizabeth Arden, Inc.	p. 485
Treppel v. Biovail Corp.	p. 487
United States v. Johnson	p. 492
United States v. Snipes	p. 493
Waste Services, Inc. v. Waste Management, Inc.	p. 494
WIREdata, Inc. v. Village of Sussex	p. 495
Xpel Technologies Corp. v. Am. Filter Film Distribs	p. 496
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