Ten Ways to Keep an Edge on Your e-Discovery Expertise

In This Topic Topic marking e-discovery favorites Finding brief and lengthy commentary from e-discovery leaders Checking out case summaries Making use of government and university sites Electronic-discovery is an exciting, evolving, and at times exasperating practice field. Every new IT gadget and communication method adds to the volume of ESI, necessitates updates in retention policies, […]

The Sedona Conference and Working Group Series (E-Discovery)

Staying informed about e-discovery would not be complete without The Sedona Conference at the top of your reading list. It’s the undisputed thought leader in this field. The Sedona Conference is a nonprofit educational organization founded in 1997 that exists to provide a place for judges, lawyers, academics, and other legal experts in e-discovery, complex […]

Federal Rules of Evidence 502 (b) Inadvertent Disclosure (E-Discovery)

We switch now from rules of procedure to Federal Rules of Evidence. Rule 502(b) Inadvertent Disclosure may give you protection when attorney-client privileged- or work product-protected material is inadvertently disclosed. By now, you know that nothing comes easy. There are always strings attached. Here are three of the strings needed to be covered by the […]

Federal Rule of Evidence 901 Requirement of Authentication or Identification (E-Discovery)

In e-discovery, so much attention is grabbed by what is and is not reasonably accessible, meeting schedules and deadlines, and motions to compel or resist being compelled, that one serious issue is largely ignored: ESI being used as evidence. Evidence has to be admissible. One requirement of admissibility is that the evidence is what it […]

FRCP 37(e) Safe Harbor from Sanctions for Loss of ESI (E-Discovery)

It’s not possible to retain all ESI that’s created or generated. Companies reuse backup tapes, which overwrite older data and files. Servers crash. New systems are implemented and older ones retired. ESI loss will happen in any of those examples. ESI that you cannot produce because you have lost it exposes you to spoliation sanctions, […]

FRCP 34 (b) Form of Production (E-Discovery)

To stop arguments about the form of production, FRCP 34(b) establishes protocols for how documents are produced to requesting parties. As the requesting party, you get to choose the form of production. Typically, you want to request native files because they could have potentially damaging metadata or show the history of track changes. Don’t forget […]

FRCP 26(f) Conference of the Parties; Planning for Discovery

Rule 26(f) is the meet-and-confer session. This rule forces all parties to meet within 99 days of the filing of the lawsuit and at least 21 days before a scheduled conference. At this get-together, you’re supposed to play nice to discuss the nature of the claims and the ESI to back them up. The intent […]

FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections

A favorite e-discovery enforcement tool of the federal bench is Rule 26(g). Judges use Rule 26(g) as a stick to deal with e-discovery abuses. In Mancia v. Mayflower Textile Services Co. (2008), Magistrate Judge Grimm explained: “The rule aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without […]

FRCP 30 (b) (6) Designation of a Witness (E-Discovery)

The responding party has to designate at least one witness who can testify on behalf of an enterprise. That witness is cleverly referred to as the 30(b)(6) witness, and that person has a duty to be knowledgeable enough to testify. The 30(b)(6) witness’s role is to explain your company’s operations, such as IT infrastructure, data […]

FRCP 26 (b) (5) (B) Protecting Trial-Preparation Materials and Clawback (E-Discovery)

You have a duty to disclose responsive ESI, but some things are sacred. The duty does not apply to protected material, such as your secret recipe or formula, trade secrets, intellectual property, or materials prepared in preparation for the possible trial. The duty to disclose also does not apply to privileged material (between you and […]