Electronic Evidence

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  • Edition: 2nd
  • Format: Paperback
  • Copyright: 2009-06-16
  • Publisher: Natl Book Network
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Electronic Evidence: Law and Practice explores the range of problems encountered with electronic communications from discovery to trial, and offers practical solutions to both existing and potential problems. Particular emphasis is given to the unique problems evolving around the way in which parties are asserting the attorney-client privilege and judges are applying it to e-mail communications.

Table of Contents

Forewordp. ix
Acknowledgmentsp. xiii
Dedicationp. xv
Introductionp. xvii
Discovery of Electronic Evidencep. 1
The Evolution of E-discoveryp. 3
The Rules of E-discoveryp. 11
Electronically Stored Information Is Discoverablep. 12
Parties Must Give Early Attention to E-discoveryp. 16
Initial Disclosuresp. 17
Conference of the Partiesp. 21
Discovery Planning Conferencep. 23
Two Tiers of Discoverable Information-Data That Is Not Reasonably Accessiblep. 28
Approaches to Cost Allocationp. 37
Another Approach to Cost Allocationp. 46
Sampling as a Factor in Cost Allocationp. 46
Cost Allocation in Practicep. 47
Privilege and the Discovery of Electronically Stored Informationp. 49
Written Discoveryp. 53
Testing and Samplingp. 53
Form of Productionp. 53
Rule 33(d)-Interrogatoriesp. 56
Subpoenasp. 56
Sanctions and the Spoliation "Safe Harbor"p. 57
The Practical Side of E-discoveryp. 59
Counsel Must Acquire a Working Understanding of Potentially Relevant ESIp. 59
Build an E-discovery Teamp. 61
Understand and Improve Information Technology Architecturep. 62
Develop a Preservation Processp. 63
Developing a Retention Planp. 73
Issuing Instructions to Custodians to Preserve Potentially Relevant Recordsp. 75
Design and Implement E-discovery Guidelinesp. 76
Identify a Preferred Vendor Networkp. 76
Consider Acquiring or Licensing Appropriate Toolsp. 77
Spoliationp. 79
Overviewp. 80
The Basicsp. 86
When Does the Duty to Preserve Arise?p. 89
Does the Client's Obligation to Preserve Create Duties for Legal Counsel?p. 101
What Must Be Retained and Preserved?p. 106
Privileged Materialsp. 116
Duration of the Duty to Preservep. 118
Prejudice to Discovering Partyp. 120
Is Bad Faith Required?p. 133
Consequences of Spoliationp. 153
Spoliation Is an Implied Admission by Conductp. 168
Logical Inference Instructionsp. 172
The Strange Spoliation Presumptionp. 172
Authority for Penalizing Destructionp. 176
Burden of Persuasionp. 179
Choice of Law Questionp. 180
Proving the Claim of Spoliation-You're Not Bound By the Rules of Evidencep. 180
Evidence of Spoliation-Evidence of One's Conduct to Prove the Truth of Its Implied Message-Is It Hearsay?p. 181
Spoliation and the Attorney-Client Privilegep. 182
Standard of Appellate Reviewp. 183
Computers and the Internet Expand Every Possibilityp. 183
Do Not Delete Records or Destroy Equipmentp. 186
Save the Hard Drivesp. 188
Don't Forget Personal Digital Assistants and Jump Drivesp. 188
Informal Encouragement to Others to Preserve Datap. 189
Confidentiality and the Attorney-Client Privilegep. 191
The Attorney-Client Privilege and Its Elementsp. 193
History of the Confidentiality Requirementp. 195
Evolution of the Confidentiality Requirementp. 198
Ever-Expanding Circlep. 198
Ignoring Confidentialityp. 201
Stolen documentsp. 201
Judicially compelled disclosuresp. 203
The unauthorized agent exceptionp. 206
Inadvertent disclosures-the "oops" rulep. 207
Disclosures under protective orders or with reservationsp. 210
Confidentiality Must Be Maintained and Documented-The Increasing Problem of Outside Agents Functioning as Employeesp. 215
E-mail-An Extension of Existing Services and Technologyp. 221
From Face-to-Face Communications to Lettersp. 221
From Letters to Telephonesp. 221
From Telephones to Computersp. 222
Employees' Personal Expectation of Confidentiality in E-mail Communicationsp. 224
Data Behind Electronic Evidence-Metadatap. 234
Electronic Presentationsp. 236
Measures to Preserve Confidentiality?p. 239
Asserting Attorney-Client Privilege for E-mails: The Practical Details, a Growing Concernp. 243
Expanding the Role of In-House Counsel-Jeopardizing the Applicability of the Privilegep. 244
Complicating the Distinction Between Communications and Informationp. 248
How Is the Document Described in a Privilege Log?p. 252
Are Operating Assumptions About the Purpose of Communications Appropriate Based on the Individuals to Whom They Have Been Disseminated?p. 258
When business and legal communications can be separatedp. 261
When business and legal advice are inextricably intertwinedp. 264
Spoliation and the Crime/Fraud Exception to the Attorney-Client Privilegep. 289
Work Product Immunity Vis--Vis E-evidencep. 291
Best Evidence/Original Writing Rulep. 297
The Basicsp. 298
E-Evidence and the Original Writing Rulep. 303
The Added Complexity of Summaries of Voluminous Materialsp. 307
The Hearsay Dimensions of Summariesp. 308
Non-hearsay Argumentp. 309
Residual Exception Solutionp. 310
Insurmountable Hearsay Problems Created by Summaries of Voluminous Materials from the Internetp. 311
The Evidentiary Status of Summaries under the Voluminous Writings Exception to the Original Writing Rulep. 312
Presumptionsp. 315
The Basicsp. 317
Common Law Presumptions That Can Be Relevant to Authenticating E-commerce and E-mailp. 323
Receipt of Mailed Lettersp. 323
Authority to Transact Businessp. 325
Authority to Use an Instrumentalityp. 325
Responsibility for Damage or Lossp. 326
Authentication of E-commerce-Problems with Presumptions under the Federal Rules of Evidencep. 326
Authenticationp. 333
The Basicsp. 335
Methods of Authenticationp. 339
Self-identificationp. 348
Self-identification by the Sender: Establishing That a Letter Was Actually Written by the Person Named as Authorp. 348
Self-identification by the Recipient: Establishing That a Message Was Received by the Fact That It Was Sent to That Individual's Address and He Responded to Itp. 350
Contentp. 352
Extrinsic Circumstancesp. 354
Authenticating Digital Photographsp. 357
The Key Is the Chain of Custodyp. 360
Desirable Enhancement Versus Unacceptable Manipulationp. 362
Authenticate the Computer Program Toop. 367
The Internet Complicationp. 367
A Spoliation Problemp. 368
Authentication of Web Page Postings from the Internetp. 369
Relaxation of Authentication Requirementsp. 374
Self-authentication and the Internetp. 376
Public Document Under Sealp. 381
Business Solicitations and Postingsp. 382
Government Postingsp. 384
Newspapers and Periodicalsp. 385
Limits of Self-authenticationp. 385
Authenticating with Technologyp. 386
Data Trailsp. 386
Electronic Signaturesp. 387
Public Key Infrastructurep. 390
Biometric Authenticationp. 391
Authentication of Computer Animations, Models, and Simulationsp. 391
Authentication of Authenticating Technologyp. 393
Other Issues Relating to Authentication of E-evidencep. 395
Chain of Custodyp. 395
Expanded Pretrial Discovery May Justify a Lesser Foundationp. 399
Admissibility and Weight: Two Bites at the Same Applep. 400
A Reality Checkp. 400
Hearsayp. 401
The Basicsp. 403
Two Truths of Hearsayp. 404
Hearsay Admissible Through Exceptionsp. 409
Multiple Levels of Hearsayp. 410
Writings Are Like Another Person Speaking, Repeating the Out-of-Court Declarations of the Authorp. 412
Why Is It Relevant?p. 414
Mechanically Produced Statements Are Not Hearsayp. 415
Evidence from the Internetp. 417
Nonhearsay from the Internetp. 417
Hearsay from the Internetp. 421
Admissible Hearsay under Applicable Exceptionsp. 422
A Reality Check on Hearsayp. 430
The Internet as Part of Business or Government Recordsp. 430
Web Pages Are Not Business Records of the Internet Service Provider (ISP)p. 433
Government Records and Reportsp. 433
Constitutional Dimensions of Hearsayp. 435
The Accused's Right of Confrontationp. 436
Two-Prong Ohio v. Roberts Testp. 438
The "Testimonial" Standard of Crawford v. Washingtonp. 439
Why "Testimonial"?p. 441
Does the "Testimonial" Label Give an Absolute Right?p. 443
Due Processp. 446
Due Process Before Crawfordp. 446
Excluding hearsay offered by an accusedp. 446
Excluding hearsay offered by the governmentp. 447
Due Process After Crawfordp. 448
Constitutional Wild Cardp. 449
Science and Technologyp. 463
Judicial Screening Under the Common Lawp. 464
The Advent of the Frye "General Acceptance" Testp. 465
Expanding the Scope of Fryep. 466
Judicial Screening Under the Federal Rules of Evidencep. 467
Out of the Fryeing Pan, Into the Fire?p. 468
The Logic of Daubertp. 468
Consequences for E-science and E-technologyp. 472
Judicial Noticep. 477
The Basicsp. 478
Judicial Notice Under the Federal Rules of Evidencep. 479
Things Not Addressed in Rule 201p. 481
Distinguishing Judicial Notice of Adjudicative Facts/Jury Notice of Facts/Judicial Notice of Legislative Factsp. 481
Judicial Notice and E-commercep. 483
Evidence from Web Pages: A Practical Assessmentp. 484
Future's Challengep. 491
Indexp. 495
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