The Discovery Update – July 2009


The Discovery Update – July 2009

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July 2009

From the President

With the landscape of litigation always evolving, we understand how critical it is for you to stay informed so you can best serve your clients.

Since its inception over two years ago, our goal for The Discovery Update has remained intact to continue to provide you, our clients, with useful discovery information and tools. For over twenty years we have taken a genuine interest in the legal community beyond court reporting, and we will stay committed to continue helping our clients in this way.

As always, we welcome your suggestions and comments, and we would like to share articles you have written with our readers, as well.

We sincerely hope that the rest of 2009 brings you and your firm successful business opportunities and prosperity.

Best regards,
Sheila Atkinson-Baker

Privilege Logs: How to Effectively and Efficiently List Single “E-mails” That Includes Earlier E-mail Text

By Sue Seeley,
Manager for Legal Services,
 IE Discovery, Inc.

During the past fifteen years, e-mail has transformed how we work, emerging from relative obscurity to become the way most of us communicate on the job. Unfortunately for attorneys and litigation support professionals, case law has not kept pace with this change. Rulings from Federal District Courts raise the issue of how to list a privileged e-mail on a privilege log when that e-mail is a reply or a forward of an earlier e-mail and the text of an earlier e-mail is included in the latest e-mail.

To aid our analysis let us call the e-mail that includes the text of an earlier e-mail the “embedding e-mail” and let’s refer to the earlier e-mail as the “embedded e-mail.” Can the privilege log have only one entry containing data pertaining to only the most recent sender and recipients of the embedding e-mail or does there need to be an entry for not only the embedding e-mail but also an entry for each of the earlier embedded e-mails? The answer may require that much more time and expense be spent preparing privilege logs. Only a few courts have addressed how to capture embedding e-mails on privilege logs, and the few that have spoken have been inconsistent, and have unfortunately chosen terminology that adds to the confusion.

Read full article>>

Case Law Relevant to Electronic Discovery

By Dennis Kiker, Fios, Inc.

Case law continues to evolve regarding how electronically stored information (ESI) is identified, preserved, collected, processed, reviews 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, spoliation impact the IT, legal and business processes of law firms and their clients.


Under the “two-tier rule” established under FRCP 26(b)(2)(B), parties need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost; on motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.

Read full article>>

How to Effectively Handle Privileged Emails

Case Law Relevant to Electronic Discovery

Tips and Tools for Easy Collaboration Online

Depositions: Learn from the Old Pros

Use Exhibits Regularly During Video Depositions

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Tips and Tools for Easy Collaboration Online
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Depositions: Learn from the Old Pros
Use Exhibits Regularly During Video Depositions


Plough vs. Fields 
422 F.2d 824 (9th Cir. 1970)

United States vs. Estate
of Grace

395 U.S. 316 (1969)

Silver vs. Gold 
211 Cal.App. 3d 17, 259 Cal.Rptr. 185 (1989)

State of Indiana vs. Virtue 
658 N.E. 2d 605 (1995)

Bivens vs. Six Unknown Named Agents of the Federal Bureau of Narcotics 
403 U.S. 388 (1971)

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