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Electronic Discovery. - Product Image

Electronic Discovery.

  • Published: April 2014
  • Region: Global, United States
  • 428 Pages
  • ALM Media, LLC

The use of e-mail and electronically stored data has fundamentally changed the discovery process and the judicial standards for what is a “reasonable” discovery request. It has also led to new strategies and tactics that can mean the difference between winning and losing a case.

Electronic Discovery is a comprehensive and much-needed treatment of this vital and evolving area. Beginning with the basic rules governing discovery, this book discusses the legal and practical challenges involved in e-discovery, special evidentiary issues, when protective orders to limit electronic discovery may be issued, and strategic considerations—in short, everything the practitioner needs to master the use of e-discovery.

Electronic Discovery looks closely at “reasonableness” in the context of electronic discovery, e-mail, messaging and other danger zones, data analysis and computer forensics, document retention policies that can withstand scrutiny, and other essential topics. The authors provide guidance from both offensive and defensive perspectives, including timesaving forms and examples. This truly modern reference will prove its worth to practicing trial lawyers for years to come.

CHAPTER 1
Introduction
- 1.01 Background
[1] The Emergence of Modern Discovery Practices
[2] Recognition of the Universe of Electronic Records
[3] Navigating the Shoals of Electronic Discovery Only by “Dead-Reckoning”
[4] The False Concept of “Deleted” Electronic Records
[5] Lack of Understanding of Electronic Records Generally, and Bad Habits in the Use of Electronic Communications Methods
[6] The Current Electronic Discovery Landscape
- 1.02 Electronic Discovery Issues

CHAPTER 2
The Federal Discovery Rules and Electronic Evidence
- 2.01 Application of the Federal Rules of Civil Procedure to Electronic Evidence
[1] Scope of Discovery
[2] Privilege Concerns
[3] Third Party Discovery
- 2.02 Rule 34 and the Form of Production
- 2.03 The Cost of Searching for and Retrieving Electronic Evidence
[1] Balancing Test Approach
[2] The Zubulake Standard

CHAPTER 3
Planning and Executing Electronic Discovery
- 3.01 Offensive Discovery
[1] The Discovery Plan
[2] Electronic Discovery Requests
[3] Obtaining Document Preservation Orders from the Court
[4] Preparing Document Requests
[5] Preparing Interrogatories
[6] Taking Depositions
[7] Compelling Discovery
- 3.02 Defending Against and Responding to Electronic Discovery Requests
[1] Work Product Databases
[2] Failure to Comply with Discovery
[3] Avoiding Data Spoliation and Destruction Problems
[4] Preparing for Electronic Discovery Before Litigation Is Filed
[5] Responding to Document Requests
[6] The Document Search
[7] Defending Against Improper or Burdensome Discovery

CHAPTER 3A
Data Collection, Computer Forensics, and File Processing
- 3A.01 Introduction
- 3A.02 Scope of the Data Collection Effort
[1] Identify the Relevant Subject Matter and Issues
[2] Identify the Relevant Custodians
[3] Identify the Relevant Time Period
[4] Identify the Relevant Data Sources
- 3A.03 Data Collection
[1] Forensic Data Collection
[2] Non-Forensic Data Collection
[3] Cost of Data Analysis
- 3A.04 Data Analysis and Filtering
[1] File Harvesting
[2] File Content Analysis
[3] Metadata Analysis
[4] Deleted Data
[5] Temporary Data
[6] Web Browser Artifacts
[7] Cell Phone Data
[8] Anti-Forensics
[9] Forensic Tools and Methodology
- 3A.05 The Computer Forensic Expert
[1] Education
[2] Certification
[3] Experience

CHAPTER 4
Preserving Electronic Documents Before and After Litigation Ensues
- 4.01 Introduction
- 4.02 Retention Policies
- 4.03 Document Preservation and Demand Letters
- 4.04 Document Preservation Orders
[1] Injunctive Factors
[2] Seeking the Least Intrusive Language
- 4.05 Sanctions for Failing to Produce or Preserve Electronic Evidence
[1] Sanctions for the Failure to Produce Electronic Evidence
[2] Sanctions for Spoliation of Electronic Evidence
- 4.06 Form: Sample Electronic Document Retention Policy
- 4.07 Form: Sample E-Mail Use and Retention Policy
- 4.08 Form: Sample Preservation of Evidence Letter
- 4.09 Form: Sample Document Preservation Order

CHAPTER 5
Drafting Discovery Requests for Electronic Information
- 5.01 Preparing Electronic Discovery Requests
[1] Where to Begin
[2] General Considerations
- 5.02 Types of Electronic Records Typically Sought in Discovery
- 5.03 Sample Document Request
[1] Guiding Principles
[2] The Definition Section
[3] Form: Sample Requests for Production of Documents
- 5.04 Interrogatories
[1] In General
[2] Form: Sample Interrogatories

CHAPTER 6
Deposing the Records Custodian or Information Technology Manager
- 6.01 Purpose of Deposing the Electronic Records Custodian or Technology Staff
- 6.02 Strategy in Deposing or Defending the Deposition of the Custodian/IT Person
[1] Making Use of the Deposition
[2] Nature and Types of Likely Deponents
- 6.03 The Nuts and Bolts of the Deposition
[1] The Timing of the Deposition
[2] Starting the Deposition: the Notice of Deposition
[3] The List of Deposition Topics
- 6.04 Form: A Sample Outline for Taking the Deposition

CHAPTER 7
Special Issues Regarding the Discovery of Electronic Mail and Messaging
- 7.01 Why E-Mail Deserves Special Attention in Electronic Discovery
- 7.02 Legal Issues Regarding Discovery of E-Mail
[1] Introduction to and General Law on Discovery of E-Mail Messages
[2] Recovering Deleted E-Mail
[3] A Sound Basis to Recover Deleted Files Is Required
[4] Burdens and Costs Relating to Discovery of Deleted E-Mails
[5] Oversight of the Process of Retrieving Deleted E-Mails
[6] Federal Statutes Applicable to E-Mail
- 7.03 Expectation of Privacy in E-Mail Communications
[1] Expectation of Privacy and Confidentiality in E-Mail
[2] Court Views on Expectation of Privacy in E-Mail
[3] No Expectation of Privacy for Internet Chat Room Communications
[4] Employee E-Mail Is Unprotected
- 7.04 Inside the Black Box: How Electronic Mail Works
[1] The E-Mail “Client”: the E-mail Software That Is Used
[2] The E-Mail Server, the Internal Network, and the Internet
- 7.05 The Components of an Electronic Mail Message and Metadata
- 7.06 Finding and Collecting Electronic Mail Messages
[1] Where to Search for Stored E-Mail
[2] Obtaining Only Paper Copies of E-Mail Is Inadequate for Discovery
[3] Obtaining an Immediate Order to Preserve E-Mail
[4] Dealing with “Lost” or “Deleted” E-Mail
[5] Duplication of E-Mails and Multiplicity of Storage Spaces
- 7.07 Other Types of Messaging
- 7.08 Proactive Planning for E-Mail Discovery

CHAPTER 8
The Federal Rules of Evidence and Electronic Documents
- 8.01 Introduction
- 8.02 Rule 401: Definition of “Relevant Evidence”
- 8.03 Rules 901 and 902: Authentication and Self-Authentication
[1] Rule 902: Self-Authentication
[2] Rule 901: Authentication and Identification
- 8.04 Rule 801: The Problem of Hearsay
[1] Rule 801(d)(2): Admission of a Party Opponent
[2] Rule 803(1): Present Sense Impression
[3] Rule 803(6): Business Records
[4] Rule 803(8): Public Records and Reports
[5] Rule 803(17): Market Reports, Commercial Publications
[6] Rule 807: Residual Exception
- 8.05 Rule 1002: Requirement of Original
- 8.06 Rule 1004: Original Not Required
- 8.07 Rule 1006: Summaries
- 8.08 Rule 502: Attorney-Client Privilege and Work Product; Limitations on Waiver
- 8.09 Conclusion

CHAPTER 9
The Use of Experts for Electronic Discovery
- 9.01 Introduction
- 9.02 When to Use an Expert
[1] The Consulting Expert
[2] The Testifying Expert
[3] Must an Expert Be Retained?
[4] Paying for the Expert/Consultant
- 9.03 Independent and Court Appointed Experts (the Special Master)
- 9.04 Guiding the Expert's Work

Table of Cases
Index

Brian D. Hansen



Brian D. Hansen is Second Vice President and Associate General Counsel of Midland National Life Insurance Company and North American Company for Life and Health Insurance, where he oversees a wide range of litigation matters. Prior to that, Mr. Hansen was a partner in Jenner & Block LLP's Chicago office, where his practice focused on class action and insurance litigation.

Mr. Hansen is co-author of Electronic Discovery and has written several other articles on that topic. He graduated from the University of Iowa, with highest distinction, in 1996. Mr. Hansen obtained his J.D., with high distinction, from the University of Iowa in 2000, where he was selected Order of the Coif and received the Michelle R. Bennett Award for outstanding service in the Legal Clinic. He is admitted to practice in Illinois.

Brent E. Kidwell



Brent E. Kidwell is the Chief Knowledge Counsel for Jenner & Block. Leveraging years of experience as a commercial litigator, he helps clients proactively prepare for electronic discovery and reactively implement strategies and plans for collecting, processing, analyzing and producing data in litigation. Mr. Kidwell has assisted clients in managing terabytes of data efficiently and cost-effectively for some the Firm’s largest matters. He also advises clients on digital forensics, information and records management strategies, and data security, protection and privacy issues. In addition to his work for clients, Mr. Kidwell is responsible for the Firm’s data security and information technology risk management activities, as well as its knowledge management efforts.

In addition to his law degree, Mr. Kidwell has a Master of Science degree in Computer Science from DePaul University. This graduate technical education provides Mr. Kidwell with unique skills to assist clients with issues involving technical and legal challenges.

Law Technology News named Mr. Kidwell the 2004 Champion of Technology for his work in applied technology. Prior to assuming his position as Chief Knowledge Counsel, he served clients in a broad array of civil litigation matters at both the trial and appellate level. He is a member of the Firm’s Technology Litigation Practice.
Mr. Kidwell is an Adjunct Professor at DePaul University College of Law where he teaches one of the country’s first (and few) law school course on electronic discovery. Mr. Kidwell is a nationally known speaker at conferences and other events on e-discovery, information and records management, data security, and information security and risk management issues. He has also given many presentations on topics related to knowledge management.

Matthew M. Neumeier



Matthew Neumeier (deceased) was a partner in Howrey LLP's Chicago office. He was one of the nation's outstanding class action defense lawyers in the areas of products liability, mass tort and financial services.

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