The Discovery Update E-Letter Articles

09Apr2018

The Dark Side of Cloud Computing

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By Sharon Nelson and John Simek We have said for many years that the cloud will generally protect a law firm’s data better than the law firm would itself. As more and more law firms adopt Microsoft Office 365, thereby moving to the cloud, we have come to the conclusion that a few words of caution are in order when law firms entrust their data to the cloud.
23Aug2016

Avoiding the Technical Mistakes When Drafting Written Discovery

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Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit.  Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith, as the objections included a General Objection preamble,
19Jan2016

Databases in Discovery

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Five years ago, I wrote The Luddite Litigator’s Guide to Databases in E-Discovery to accompany a lecture on the subject at the 2010 Georgetown Advanced E-Discovery Institute.  When I went looking for source material for the article, I was struck by how little there was.  Databases hold most of what we seek in discovery;
09Mar2014

Nitty Gritty Discovery Requests

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By Joshua Gilliland, Esq.
US Senior District Judge John Kane took on multiple discovery disputes against a Plaintiff in a wage and hour case. It is an amazing case study of what could be requested in a case. Requesting Communications Off the Girlfriend’s Computer The Defendants requested all ESI communications regarding the case,
01Mar2014

Amendments to FRCP 45 Enacted

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By Michael P. Lowry
On December 1, 2013, an amended FRCP 45 went into effect.  Why did it require amendment?  “Current Rule 45 creates what the Advisory Committee came to call a ‘three-ring circus’ of challenges for the lawyer seeking to use a subpoena.” Report of the Civil Rules Advisory Committee,
01Jan2014

The Psychology of Law and Discovery

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By Ralph Losey
Reasonability is a core concept in the law, right up there with the idea of justice itself. It not only permeates negligence law, it underlies discovery law as well. For instance, a party in litigation, and the attorneys representing them, are required to make reasonable efforts to find relevant documents requested.
11Dec2013

Discovery Problems and Their Solutions

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DISCOVERY SOLUTIONS A common complaint is that attending law school may give one a solid grounding in the principles of the law, but not in the practice of the law. This is learned after passing the bar exam. To help new litigators bridge the gap between theory and practice, three experienced litigators wrote a book Discovery Problems and Their Solutions which was published earlier this year by ABA Publishing.
01Sep2013

Proposed Federal Rules of Civil Procedure Amendments

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By Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, D.C.
Since their introduction 75 years ago, the Federal Rules of Civil Procedure have embodied a policy of “broad and liberal” discovery, and state court procedures generally have followed suit. In the last two decades, the universal adoption of electronic mail for business communications and the decreasing cost of electronic storage have dramatically increased the cost of litigation,
11Sep2012

A New Trial Reopens Discovery

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According to California Code of Civil Procedure Section 2024 (a) the discovery cutoff date is 15 days “before the date initially set for the trial of the action.” Continuance or postponement of the trial does not reopen or extend the discovery cutoff. The appellate courts had a difference of opinion, however,
01May2011

Disclosure vs. Privacy – The Global Data Dichotomy

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By Kroll Ontrack
Rapid advancements in communication and transportation continue to globalize the marketplace like never before. While globalization has certainly brought economic growth and opportunity for some, it has also created conflict for others. No matter where business is conducted, litigation will inevitably follow, and as the economic borders continue to blur,
01Apr2011

Musings By a Retired Judge on Discovery References

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By Hon. David A. Garcia (Ret.)
Court references are not appropriate for all cases and the authority of the courts to appoint referees or special masters is accordingly limited. Nevertheless, in cases for which the appointment of a referee or special master is appropriate, a reference can assist the parties in achieving economic,
01Nov2009

Forget the Roadmap – Get GPS for Discovery Process Management

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By Bobby Balachandran, CEO, Exterro, Inc.
Precise navigation along the journey of electronic discovery requires more than a simple roadmap of obligations.  Protocols must be integrated into business processes, and any imprecision or misdirection is unacceptable in this era of heightened accountability.  Attorneys need a global positioning system (GPS) to guide their strategy for document management beginning with an automated legal hold strategy.
01Aug2009

Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics of Improving Discovery Timing in a Digital Age

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By Scott A. Moss, Professor, University of Colorado Law School
Cost-benefit “proportionality” limits on discovery have long been prescribed by a wide range of commentators. The judiciary codified a proportionality requirement in Federal Rule of Civil Procedure 26(b)(2)(C) and later in e-discovery rules based on proportionality principles, such as the Rule 26(b)(2)(B) proviso that only upon “good cause” can there be discovery of computerized data “not reasonably accessible because of undue burden or cost.” Drives to limit discovery typically gain strength when technology increases discovery cost.
01May2009

Total Revamp of Federal Rules of Civil Procedure?

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By Mary Mack, Esq., Corporate Technology Counsel, Fios Inc.
The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System released a report in March calling for radical change in the Federal Rules of Civil Procedure (FRCP) that may,