The Discovery Update E-Letter Articles

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,
01Apr2011

Cloud Computing Complicates E-Discovery Issues Here

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posted on ediscovery-news.com
Cloud computing is alive and flourishing. It has become the popular technology tool for many who want to shift from local PC/Network computer storage and processing to external computers in “the cloud” (on the Internet) handling these types of services. E-mail, word processing, and financial systems are all examples of information that may no longer exist at a company’s physical site and reside somewhere in cyberspace.
01Mar2011

E-Discovery Rules Applied to Social Media

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By Michelle Sherman
Companies are on social media. They are interacting and connecting with customers through Facebook, Twitter, and blogs. In a study last year, so the numbers are already on the conservative side, 65% of Fortune Global 100 companies have active Twitter accounts, and 54% have Facebook fan pages.
01Dec2009

The E-Discovery Sanctions Cube

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Over the past few years, federal and state courts have rendered an unprecedented number of e-discovery sanctions orders and decisions. The trend is towards more and increased sanctions for e-discovery failures. These sanctions cases need a unifying theme and explanation; they need a model for analysis. This article presents the  E-Discovery Sanctions Cube as a first effort at such an analytic tool.
01Dec2009

Computer Forensics Challenges

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By Sheryl L. Katz
Most litigation support staff understand the basic challenges of electronic discovery. However, while many forensic methods are used in e-Discovery, computer forensics is a unique discipline. “Forensic science is the application of a scientific discipline to the law. The essence of all forensic disciplines concerns the principles applied to the detection,
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.
01Jul2009

Case Law Relevant to E-Discovery

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By Dennis Kiker
Case law continues to evolve regarding how electronically stored information (ESI) is identified, preserved, collected, processed, reviewed and produced. Findings on accessibility, admissibility, chain of custody, cost sharing and shifting, data production, good faith, legal hold, metadata, privilege, 26(f) meet and confer conferences and spoliation impact the IT,
01May2009

How to Reduce Ediscovery Costs in a Down Economy

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The Editor of Metropolitan Corporate Counsel interviews Mary Mack , Corporate Technology Counsel, Fios, Inc. Editor: What are the biggest cost drivers today when it comes to litigation and e-discovery? Mack: e-Discovery is by far the most significant cost driver where a case involves a large volume of electronically stored information (ESI).
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,
01Mar2009

E-Discovery – The Endgame is Production

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There are a lot of lessons to be learned about e-discovery from the many court cases that have been affected one way or another by the ability to or the failure to produce documents during the legal process. Take the case of Legaretta v. AstraZeneca. When defendant AstraZeneca produced documents for opposing counsel to review,
01Jan2009

Audio Mining: Where We are and What’s Next

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By Alice Barrett Mack
Some documents consider audio mining to be only the indexing phase. For purposes of this document, audio mining is considered to be both the searching and indexing phases. Audio mining is a speaker-independent, speech recognition technique that is used to search audio or video files for occurrences of spoken words or phrases.
01Oct2008

Evidence Authentication: Web Site Content

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By Mark Kerzner, This Month’s Contributing Author
Electronic evidence presents unique authentication challenges. What are the specific issues for web site contents? Judge Grimm on Evidence In his memorandum opinion in Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), Magistrate Judge Grimm remarks that “considering the significant costs associated with discovery of electronically stored information (ESI),
01Sep2008

Producing Spreadsheets in E-Discovery-2008 Update

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By Conrad J. Jacoby
In 2004 – at least a decade ago by e-discovery standards—I wrote an article about the difficulty of producing electronic spreadsheets in litigation discovery. At that time, I concluded, “Until new technologies are developed that can easily present read-only, easily verified versions of native format files,
01May2008

E-Discovery Survival Guide

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By Art Smith and Jeanine Bermel, Husch Blackwell Sanders LLP, St. Louis, MO
When the e-discovery amendments to the Federal Rules of Civil Procedure took effect, there was a widespread feeling of panic among corporate counsel and, indeed, many members of the bar, as well. Some articles in the popular press reported that the amendments require corporations to retain virtually every electronic document ever created.
01Apr2008

Should You Save Internet Cache?

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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.
11Feb2008

When and Why Should You Start an E-Discovery Team?

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Should every organization have an e-discovery team? If a company has only a few computers, say less than 100, or rarely gets sued and has less than 3 lawsuits going at a time, then it does not need one. It is probably cheaper to just hire outside counsel and vendors to handle e-discovery cases when they occasionally arise.
11Jan2008

Addressing Laptop Data Vulnerabilities

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By Jeff Beard, Attorney, Consultant Lawtechguru.com
Law.com has an excellent article discussing several workable approaches for securing data on corporate laptops. A quick look at one list of data breaches illustrates how sensitive data continues to be compromised by unsecured storage on laptops. It’s a particularly savvy article because its first piece of advice is not to overreact and go overboard —
15Dec2007

Litigation Survey Suggests the Future of E-Discovery

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By Ralph Losey, Akerman Senterfitt, Orlando, FL
A recent survey of over 300 corporate counsel on litigation issues suggests that the internal team approach to e-discovery is a fast growing trend for mid to large size companies. In 2007, these companies turned primarily to e-discovery vendors to help form and support these teams,
11Dec2007

Authenticating Email Discovery as Evidence

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By Beatrice O’Donnell, Duane Morris, PA
With the recent passage of the amendments to the Federal Rules of Civil Procedure, the legal press has been filled with articles containing e-discovery advice. At some point, “e-discovery” will need to be converted into “e-evidence” for the purposes of summary judgment or trial.
14Nov2007

Rising Costs of E-Discovery Impacting Litigants

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Partner, Sutherland Asbill & Brennan, Atlanta
The first electronic database I supervised in litigation ended up costing a dollar a page. And that was before a single lawyer had looked at any of it. Making TIFF images, using Optical Character Recognition software to create searchable text, entering basic descriptive coding for each document and exporting all this data into a usable format were handled by an outside vendor that charged separately for each step.
09Nov2007

Top Trends in E-Discovery: Noted At ITLA Discovery

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By Ralph E. Losey Co-Chair, e-Discovery Group Akerman Senterfitt
Akerman Senterfitt I attended the annual convention last week of the International Legal Technology Association (“ILTA”). This conference is a big event for law firm IT staff, and a few lawyers like myself. Over 2,300 techies turned out to attend 190 different educational sessions and to check out the 150 vendors on display.
15Sep2007

Should Lawyers Use Metadata?

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I use Microsoft Word, Outlook, Excel and many other office programs. Do you use the same? What many of us do not know is that in each email and office file we create, we are also creating a hidden trail of data about our documents. These programs automatically save information such as who worked on the document,
11Sep2007

New Technology Alters the Terrain on Accessibility of Backup Tape Data

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By Gerard Britton and Richard Davis,
Constantine & Aborn Advisory Services LLC Technological advances are changing procedures for accessing electronically stored information on backup tapes. Because generating data from tapes is costly and resource-intensive, there is an increasing need for new tape review technology, such as the ones Britton and Davis discuss here.
11Jul2007

Examining Exabytes of Exhibits

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If you have never heard of an exabyte, don’t worry, you are not alone. One exabyte is equal to one billion gigabytes and, until a few years ago, the word had no practical application. Now, however, however litigators need to think about how they are going find relevant data in such massive quantities of data.
11Jul2007

Documenting the Chain of Custody

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As with other types of records, it is important to establish and maintain the chain of custody of any type of voice or video recordings to preserve their integrity and validity as evidence. “Within a few years we will have – through case law and advances in technology – a greater comfort level in dealing with these types of records,” says Conrad Jacoby,
11Jul2007

A Discovery Trainwreck

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Many types of voice and video records are only kept for a short time before being overwritten, so these must be identified and preserved as soon as it is known that they may be needed for a case. Two Eighth Circuit decisions illustrate this point. Stevenson vs. Union Pacific Railroad Company This case arose out of an incident where a train hit a car.
11Dec1999

Federal Rules Changes

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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.