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The Discovery Update E-Letter Articles

11Dec2013

Equivalents and Estoppel: Patent Interpretations & Scope

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The “doctrine of equivalents” and “prosecution history estoppel” are two interrelated equitable doctrines courts can apply in determining the reach of patents. The doctrine of equivalents gives some leeway in interpreting the extent of a patent rather than limiting it to the exact literal meaning of the words used to describe the invention.
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11Dec2013

Electronic Discovery (Part I)

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Once a quarter the Atkinson-Baker Newsletter, Discovery Update,TM features those topics that shape the law itself and its practice. We address a broad variety of topics such as: copyright laws, unpublished opinions, discovery rules, employment law, evidence, expert witnesses, deposition practices, handling of exhibits and many, many more.
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11Dec2013

Electronic Discovery (Part II)

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Once a quarter the Atkinson-Baker Newsletter, Discovery Update,TM features those topics that shape the law itself and its practice. We address a broad variety of topics such as: copyright laws, unpublished opinions, discovery rules, employment law, evidence, expert witnesses, deposition practices, handling of exhibits and many, many more.
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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.
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11Dec2013

Use of Automotive Black Box Data

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Last June, the National Highway Traffic Safety Administration (NHTSA)  submitted for comment proposed rules regarding use of EDRs: “We are not presently proposing to require the installation of EDRs in any motor vehicles. We are proposing to (1) require that the EDRs voluntarily installed in light vehicles record a minimum set of specified data elements useful for crash investigations,
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01Nov2013

Excuse Me, PDFs Instead of Native Files?

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 Westdale Recap Props. v. Np/I&G Wakefield Commons is a serious case of “No, that’s not right.”
It concludes with a Court telling a requesting party that requested ESI as native files that it had not “demonstrated an adequate need to have all the ESI produced in native format.” So much for stating the form of production in your request.
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01Nov2013

E-Discovery and the Zamundan Royal Backside Wipers

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By Craig Ball
I’m on a crusade to underscore the need for lawyer competence in that crucial “e” that precedes “e-discovery.”  It’s no longer enough to understand the law in isolation; today’s lawyer must understand some fundamentals of information technology and electronic evidence.  My efforts often prove quixotic, as everywhere I’m met with the attitude that electronic discovery isn’t a lawyer’s concern:  “It’s something you hire people to do,” they say.
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01Oct2013

How to Cut E-Discovery Costs

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By Michele Lange
In today’s world of electronically stored information (“ESI”), it is increasingly costly to preserve, identify, and collect data for discovery – let alone analyze, review, and create a production. According to a 2012 e-discovery costs study by the RAND institute, e-discovery expenses are adding up. For every dollar spent on ESI production,
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01Aug2013

Streetlight Effect in E-Discovery

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In the wee hours, a beat cop sees a drunken lawyer crawling round under a streetlight searching for something. The cop asks, “What’s this now?” The lawyer looks up and says, “I’ve lost my keys.” They both search for a while, until the cop asks, “Are you sure you lost them here?” “No,
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01Jul2013

Plain Spoken Form of Production

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My grandfather grew up a plain spoken farmer in Iowa. He had a bow  tie-wearing attorney uncle who also knew how to sum up an issue. It is very nice to see a clearly stated order on the form of production from the Northern District of Iowa, Eastern Division, that continues the tradition of telling it like it is.
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01Jul2013

Deploying Trainers in Technology-Assisted Reviews (TAR) without Spoiling the Broth

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By Jen Wightman, Kroll Ontrack
Leaving little room for interpretation, the court in Coquina Investments v. Rothstein stated that the defendants’ litany of ediscovery project management pitfalls (which involved over 200 attorneys across two firms) culminated into a “case of too many cooks spoiling the broth.” While Coquina Investments involved format of production issues,
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01Jun2013

Train, Don’t Cull, Using Keywords

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By Craig Ball
I’ve been thinking about how we implement technology-assisted review tools and particularly how to hang onto the on-again/off-again benefits of keyword search while steering clear of its ugliness. The rusty flivver that is my brain got a kick start from many insightful comments made at the recent Carmel Valley E-discovery Retreat in Monterey,
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01May2013

Imagining the Evidence

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By Craig Ball
As a young lawyer in Houston, I had the good fortune to sip whiskey with veteran trial attorneys who never ran short of stories. One told of the country lawyer who journeyed to the big city to argue before the court of appeals. The case was going well until a judge asked,
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10Apr2013

Taming Document Overload

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Once a quarter the Atkinson-Baker Newsletter, Discovery Update,TM features those topics that shape the law itself and its practice. We address a broad variety of topics such as: copyright laws, unpublished opinions, discovery rules, employment law, evidence, expert witnesses, deposition practices, handling of exhibits and many, many more.
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01Apr2013

A Quick and Dirty Guide to Ediscovery Project Management (Part 2)

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By Eric Roberson, Kroll Ontrack
In a complicated litigation landscape, it’s a relief that ediscovery project management (EDPM) and the target=”new”Electronic Discovery Reference Model (EDRM) fit together. An effective project manager will consider each stage of the EDRM, from identification to production, when creating the perfect ediscovery game plan for the given set of circumstances.
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01Apr2013

Drowning in International Waters?

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By Philip Favro
The sweeping effects of globalization continue to transform the economic fortunes of many organizations. Companies that were previously content to limit their business operations to the U.S. are now branching into international markets in an effort to increase their revenues. As organizations push farther into unchartered economic waters,
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01Apr2013

Predictive Coding 101 and the Litigator’s Tool Belt

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By Matthew Nelson, Symantec Intelligent Information Group
Query your average litigation attorney about the difference between predictive coding technology and other more traditional litigation tools, and you are likely to receive a wide range of responses. The fact that “predictive coding” goes by many names, including “computer-assisted review” (CAR) and “technology-assisted review” (TAR),
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01Apr2013

A Quick and Dirty Guide to Ediscovery Project Management (Part 1)

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By Eric Roberson, Kroll Ontrack
While there is a general misperception that project managers are merely drones moving mindlessly from task to task, the reality is that project managers play a critical role in the success of any project – particularly in ediscovery. The simple fact is that the effective execution of an ediscovery project is driven by process and reinforced by extensive preparation and organization and speaks directly to the value of both strong ediscovery project managers and well thought out ediscovery project management methodology.
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01Mar2013

Would Rule Changes Alleviate eDiscovery Burdens?

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By Philip Favro
You have heard this one before. Changes to the Federal Rules are in the works that could alleviate the eDiscovery burdens of organizations. Greeting this news with skepticism would probably be justified. After all, many feel that the last set of amendments failed to meet the hype of streamlining the discovery process to make litigation costs more reasonable.
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01Feb2013

Blind as a Cat: Lawyers vs. Native Production

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By Craig Ball
I took Introductory Psychology with a phalanx of freshmen in the cavernous Hamman Hall amphitheater at Rice University. Thirty-five years later, I best remember the astounding experimental work of Cambridge researchers, Colin Blakemore and G.F. Cooper, proving the ability to see isn’t born in us, but must be learned.
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01Nov2012

Adapt to Legal Technology Trends or Die

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By Monica Bay, Editor-in-Chief, Law Technology News Magazine
Like it or not, legal technology is here to stay, and “gentlemen’s agreements” to ignore it will mark you as doomed faster than a hunky dude morphs into a werewolf in teen movies. Lawyers who refuse to recognize that technology must be integrated within the practice of law will fail.
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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,
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01Sep2012

The Essentials of Digital Forensics

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By Sharon D. Nelson, Esq., John W. Simek, and Jesse M. Lindmar, Sensei Enterprises, Inc.
Collecting, assessing, investigating, and analyzing digital evidence requires specialized knowledge, skills, and abilities – making digital forensics as much an art as a science. Computers, mobile phones, and other data storage devices can hold a wealth of electronically stored information (ESI) that mandates a level of expertise above and beyond that of most end-users or Information Technology personnel to discover.
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01Aug2012

Demystifying the Analysis Phase of the EDRM

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By Kevin L. Nichols
The Analysis stage of the Electronic Discovery Reference Model (EDRM) occurs throughout the entire model. Different times require actions, and there are different roles and responsibilities for three professionals involved throughout: the Litigation Support Professional, the Litigation Paralegal, and the Litigation Attorney. Together, they will ensure that the data collected is culled properly,
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01Aug2012

Early Case Assessment – Before 26(f)

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By Samantha Green, Esq.
Using early case assessment (ECA) to prepare for the 26(f) “meet and confer” helps practitioners address the issues and challenges around preserving discoverable data and aids development of a “discovery plan” which establishes the foundation for effective discovery. The more you know early on about the location and volume of your electronically stored information (ESI) and the client’s preferences regarding document review,
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01Jul2012

Federal Government Targets Privacy Violations by Social Media Companies

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By Neil Ray, Sheppard Mullin
Continuing its focus on privacy issues, the Federal Trade Commission (FTC) reached a settlement earlier this month with social networking service, Myspace, over charges that it misrepresented its protection of users’ personal information. The FTC alleged that Myspace allowed advertisers to access personally identifiable information despite previous assurances to its users that it would keep such information private.
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01Jun2012

There Can Be No Justice without Truth and No Truth without Search

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By Ralph Losey
Justice is based on truth, on what really happened. That is a basic problem in law because facts are usually contested. Each side has their own story. The truth is out there but requires search to discover. Truth and justice thus depend upon effective search. Truth in the law means objective,
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27May2012

Unlocking the Box: Blackbox Recording In Automobiles

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The legal system is supposed to arrive at “the truth, the whole truth, and nothing but the truth,” but in practice it is  a mix of rules requiring the divulgence of data and those permitting its concealment: the fourth and fifth amendments, attorney/client and work product privileges, medical privacy rules, reporter shield laws,
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01May2012

Leveraging Cloud-Based Delivery Capabilities for DIY E-Discovery

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By Kroll Ontrack
Today, e-discovery law and practices are in a continuous state of flux, which underscores the need for corporations and law firms to continually evolve in order to meet their ever-changing ESI obligations. IDC’s Vivian Tero recently published a white paper sponsored by Kroll Ontrack, “Leveraging Cloud-Based Delivery Capabilities for Do-It-Yourself (DIY) eDiscovery,” which highlights this very fact,
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01May2012

The SEC and E-Discovery

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By Guest Authors, DiscoveryResources.org, Sponsored by Fios, Inc.
Recent years have seen dramatic shifts in the Securities and Exchange Commission’s approach to enforcement actions with respect to e-discovery. Beginning with its 2001 Seaboard Report, the SEC has heavily emphasized the importance of cooperation in investigations while simultaneously underscoring the perils of being perceived as uncooperative.
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01Apr2012

What’s Hot in E-Discovery?

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By Sharon D. Nelson, Esq. and John W. Simek, Sensei Enterprises, Inc.
Machine-Assisted Review Let’s start with a very hot if not very sexy topic. You may have heard of new technology called predictive coding or technology-assisted review. Recently, we’ve seen the phrase “machine-assisted” review a lot. They are all the same thing.
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01Mar2012

E-Discovery 2011 Year in Review

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By Kroll Ontrack
E-discovery 2011 year in review: Preservation tops the list again with rulemaking efforts, taxation of costs and social media not far behind. Kroll Ontrack, the leading provider of information management, data recovery, and legal technologies products and services announced its yearly analysis of reported electronic discovery opinions and notable e-discovery themes in 2011 late last year.
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01Feb2012

Best Practices in Predictive Coding: When are Pre-Culling and Keyword Searching Defensible?

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Predictive coding is an effective e-discovery tool for ranking large sets of documents. However, it is commonly performed in a manner that may be severely under-inclusive and, therefore, raises concerns about its defensibility.
In the use of predictive coding, it is a common practice for the producing party to run keyword searches first and then sample and rank the resulting documents. 
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01Jan2012

Secrets of Search – Part One

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By Ralph Losey
Two weeks ago I said I would write a blog revealing the secrets of search experts. I am referring to the few technophiles, lawyers, and scientists in the e-discovery world who specialize in the search for relevant electronic evidence in large chaotic collections of ESI such as email.
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01Jan2012

Secrets of Search – Part Two

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By Ralph Losey
This is Part Two of the blog that I started last week on the Secrets of Search, which was in turn a sequel to two blogs before that: Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers and Tell Me Why?  In Secrets of Search – Part One we left off with a review of some of the analysis on fuzziness of recall measurements included in the August 2011 research report of information scientist,
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01Jan2012

Secrets of Search – Part Three

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By Ralph Losey
Now, finally, we come to the conclusion of this series on the Secrets of Search where all will be revealed. (Well, to be entirely honest, not all will be revealed. I’m still going to keep a few trade secrets up my sleeve for law partners and family.) I hope you are astonished by the latest revelations.
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01Jan2012

Social Media & Internet Investigations

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By Cliff Mosby
For attorneys, and for many of the private investigators that specialize in supporting attorneys in their legal efforts, the world of social media remains largely uncharted territory. Unlike the early explorers who mapped our relatively solid physical world, we are faced with the problem of trying to navigate an ever-changing landscape in the virtual world of the internet.
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01Dec2011

For E-Discovery, “Reasonable Inquiry” Rules Remain the Same

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Although the advent of e-discovery poses significant challenges when interpreting many of the Federal Rules of Civil Procedure, practitioners must remember their ethical duty to their client and opposing counsel during discovery remains unchanged. Fed.R.Civ.P. 26(g)(1) requires an attorney of record to sign every discovery response and certify that, upon a reasonable inquiry,
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23Nov2011

Shifting the Burden: (e-discovery costs)

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Once a quarter the Atkinson-Baker Newsletter, Discovery Update,TM features those topics that shape the law itself and its practice. We address a broad variety of topics such as: copyright laws, unpublished opinions, discovery rules, employment law, evidence, expert witnesses, deposition practices, handling of exhibits and many, many more.
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01Nov2011

Legal Issues Surrounding Social Media Background Checks

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By Michelle Sherman, Sheppard Mullin, Los Angeles
Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, “[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble.” She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them.
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01Aug2011

Recognizing Reality with Preserving Social Media ESI

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By Joshua Gilliland, Esq., “Bow Tie Law”
In a trademark dispute between restaurants, the Plaintiff brought a sanctions motion, claiming spoliation of the Defendant’s Facebook profiles.  Katiroll Co. v. Kati Roll & Platters, Inc., 2011 U.S. Dist. LEXIS 85212, 1-2 (D.N.J. Aug. 3, 2011).  The Court denied the sanctions motion over the Facebook profiles.
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01Jul2011

E-Discovery, My How You’ve Grown

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By John Tredennick, Catalyst Repository Systems
I got an email the other day from Justin, our business development rep in Chicago. He was writing about a case we had been helping with for maybe a year now. It was an interesting matter but nothing out of the ordinary. I believe they have about 150,000 documents on the site.
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01May2011

Top Ten e-Discovery Issues

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United States Magistrate Judge Andrew J. Peck for the S.D.N.Y., and practicing attorney, David J. Lender, have written a Top Ten list of e-discovery issues that is worthy of your attention. 10 Key E-Discovery Issues In 2011: Expert Insight to Manage Successfully (Metropolitan Corp. Counsel, April 03, 2011). It is always good to see a judge and attorney get together to offer practical advice,
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01May2011

The Confirmation of Existence Of Responsive ESI

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By Joshua Gilliland, Esq.
EEOC v. JP Morgan Chase Bank, N.A., is a gender discrimination case with multiple discovery disputes.  EEOC v. JP Morgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 34409, 6-7 (S.D. Ohio Mar. 30, 2011). One request for production called for “[w]hatever hardware, software, files, metadata,
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