Download e-Discovery for Dummies (ISBN - 0470510129) PDF

Titlee-Discovery for Dummies (ISBN - 0470510129)
TagsFor Dummies
LanguageEnglish
File Size7.2 MB
Total Pages363
Table of Contents
                            e-Discovery For Dummies®
	About the Authors
	Dedication
	Authors’ Acknowledgments
	Table of Contents
	Introduction
	Part I: Examining e-Discovery and ESI Essentials
		Chapter 1: Knowing Why e-Discovery Is a Burning Issue
			Getting Thrust into the Biggest Change in the Litigation
			Distinguishing Electronic Documents from Paper Documents
			Viewing the Litigation Process from 1,000 Feet
			Examining e-Discovery Processes
		Chapter 2: Taking a Close Look at Electronically Stored Information (ESI)
			Spotting the ESI in the Game Plan
			Viewing the Life of Electronic Information
			Preserving the Digital Landscape
			Facing Sticker Shock: What ESI Costs
		Chapter 3: Building e-Discovery Best Practices into Your Company
			Setting Up a Reasonable Defensive Strategy
			Braking for Litigation Holds
			Putting Best Practices into Place
			Forming Response Teams
			Putting Project Management into Practice
			Maintaining Ethical Conduct and Credibility
	Part II: Guidelines for e-Discovery and Professional Competence
		Chapter 4: The Playbook: Federal Rules and Advisory Guidelines
			Knowing the Rules You Must Play By
			Deciphering the FRCP
			Applying the Rules to Criminal Cases
			Learning about Admissibility
			Lessening the Need for Judicial Intervention by Cooperation
			Limiting e-Discovery
			Finding Out About Sanctions
			Rulings on Metadata
			Getting Guidance but Not Authority from Sedona Think Tanks
			Collecting the Wisdom of the Chief Justices and National Law Conference
		Chapter 5: Judging Professional Competence and Conduct
			Making Sure Your Attorney 
Gives a Diligent Effort
			Avoiding Being Sanctioned
			Knowing the Risks Introduced 
by Legal Counsel
			Learning from Those Who Gambled Their Cases and Lost
			Policing e-Discovery in Criminal Cases
	Part III: Identif ying, Preser ving, and Collecting ESI
		Chapter 6: Identifying Potentially Relevant ESI
			Calling an e-Discovery Team into Action
			Clarifying the Scope of e-Discovery
			Reducing the Burden with the Proportionality Principle
			Mapping the Information Architecture
			Taking Lessons from the Mythical Member
		Chapter 7: Complying with ESI Preservation and a Litigation Hold
			Distinguishing Duty to Preserve from Preservation
			Following The Sedona Conference
			Recognizing a Litigation Hold Order and Obligation
			Throwing a Wrench into Digital Recycling
			Implementing the Litigation Hold
		Chapter 8: Managing e-Discovery Conferences and Protocols
			Complying with the Meet-and-Confer Session
			Preparing for the Meet-and-Confer Session
			Agreeing on a Timetable
			Selecting a Rule 30(b)(6) Witness
			Finding Out You and the Opposing Party May Have Mutual Interests
	Part IV: Processing, Protecting, and Producing ESI
		Chapter 9: Processing, Filtering, and Reviewing ESI
			Planning, Tagging, and Bagging
			Learning through Trial and Error
			Doing Early Case Assessment
			Breaking Out the ESI
			Crafting the Hunt
			Sampling to Validate
			Doing the Review
		Chapter 10: Protecting Privilege, Privacy, and Work Product
			Facing the Rising Tide of Electronic Information
			Respecting the Rules of the e-Discovery Game
			Getting or Avoiding a Waiver
			Leveling the Playing Field through Agreement
		Chapter 11: Producing and Releasing Responsive ESI
			Producing Data Sets
			Providing Detailed Documentation
			Showing an Unbroken Chain of Custody
			Keeping Metadata Intact
	Part V: Get ting Litigation Ready
		Chapter 12: Dealing with Evidentiary Issues and Challenges
			Looking at the Roles of the Judge and Jury
			Qualifying an Expert
			Getting Through the Five Hurdles of Admissibility
			Admitting Relevant ESI
			Authenticating ESI
			Analyzing the Hearsay Rule
			Providing the Best Evidence
			Probing the Value of the ESI
		Chapter 13: Bringing In Special Forces: Computer Forensics
			Powering Up Computer Forensics
			Doing a Scientific Forensic Search
			Testing, Sampling, and Refining Searches for ESI
			Applying C-Forensics to e-Discovery
			Reinforcing E-Discovery
			Defending In-Depth
	Part VI: Strategizing for e-Discovery Success
		Chapter 14: Managing and Archiving Business Records
			Ratcheting Up IT’s Role in Prelitigation
			Telling Documents and Business Records Apart
			Designing a Defensible ERM Program
			Building an ERM Program
			Getting an A+ in Compliance
		Chapter 15: Viewing e-Discovery Law from the Bench
			Examining Unsettled and Unsettling Issues
			Exploring the Role of the Judge
		Chapter 16: e-Discovery for Large-Scale and Complex Litigation
			Preparing for Complex Litigation
			Educating the Court about Your ESI
			Avoiding Judicial Resolution
			Determining the Scope of Accessibility
			Getting Help
		Chapter 17: e-Discovery for Small Cases
			Defining Small Cases that Can Benefit from e-Discovery
			Characterizing Small Matters
			Proceeding in Small Cases
			Curbing e-Discovery with Proportionality
			Sleuthing Personal Correspondence and Files
	Part VII: The Par t of Tens
		Chapter 18: Ten Most Important e-Discovery Rules
			FRCP 26(b)(2)(B) Specific Limitations on ESI
			FRCP 26(b)(5)(B) Protecting Trial-Preparation Materials and Clawback
			FRCP 26(a)(1)(C) Time for Pretrial Disclosures; Objections
			FRCP 26(f) Conference of the Parties; Planning for Discovery
			FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections
			FRCP 30(b)(6) Designation of a Witness
			FRCP 34(b) Form of Production
			FRCP 37(e) Safe Harbor from Sanctions for Loss of ESI
			Federal Rules of Evidence 502(b) Inadvertent Disclosure
			Federal Rule of Evidence 901 Requirement of Authentication or Identification
		Chapter 19: Ten Ways to Keep an Edge on Your e-Discovery Expertise
			The Sedona Conference and Working Group Series
			Discovery Resources
			Law Technology News
			Electronic Discovery Law
			E-Discovery Team Blog
			LexisNexis Applied Discovery Online Law Library
			American Bar Association Journal
			Legal Technology’s Electronic Data Discovery
			Supreme Court of the United States
			Cornell Law School Legal Information Institute and Wex
		Chapter 20: Ten e-Discovery Cases with Really Good Lessons
			Zubulake v. UBS Warburg, 2003–2005; Employment Discrimination
			Qualcomm v. Broadcom, 2008; Patent Dispute
			Victor Stanley, Inc. v. Creative Pipe, Inc., 2008; Copyright Infringement
			Doe v. Norwalk Community College, 2007; the Safe Harbor of FRCP Rule 37(e)
			United States v. O’Keefe, 2008; Criminal Case Involving e-Discovery
			Lorraine v. Markel American Insurance Co., 2007; Insurance Dispute
			Mancia v. Mayflower Textile Services Co., et al., 2008; the Duty of Cooperateand FRCP Rule 26(g)
			Mikron Industries Inc. v. Hurd Windows & Doors Inc., 2008; Duty to Confer
			Gross Construction Associates, Inc., v. American Mfrs. Mutual Ins. Co., 2009; Keyword Searches
			Gutman v. Klein, 2008; Termination Sanction and Spoliation
	Glossary
	Index
                        
Document Text Contents
Page 1

Linda Volonino
Ian Redpath
e-discovery consultants

Learn to:
• Follow the correct steps in the e-discovery

process

• Anticipate potential risks

• Develop an e-discovery strategy for
your company

• Identify best practices in the event
of litigation

e-Discovery
Making Everythin

g Easier!


Open the book and find:

• Why you can’t ignore e-discovery

• How to prepare for litigation

• Ten essential e-discovery rules

• How to create a data map

• What data to keep

• How to set up a document
repository

• Suggestions for controlling your
e-discovery costs

• How to review, process, and filter
information

Linda Volonino is an e-discovery consultant and computer forensics

expert who aids lawyers and judges in preparing for e-discovery. She is

coauthor of Computer Forensics For Dummies. Ian Redpath is an attorney

with 32 years of litigation experience in federal courts. He consults on

e-discovery.

$29.99 US / $35.99 CN / £21.99 UK

ISBN 978-0-470-51012-4

System Administration/
Storage & Retrieval

Go to Dummies.com®
for videos, step-by-step examples,

how-to articles, or to shop!

Be prepared for legal action!
Learn about e-discovery rules,
protections, and vulnerabilities
Here are the issues, challenges, strengths, and limitations
of e-discovery in an easy-to-understand guide. Find out
how to identify, protect, and produce electronically stored
information, prepare for litigation, avoid tainting evidence,
and much more. It’s a much better (and cheaper) way to
learn about this hot legal issue than through experience!

• What happened — explore the legal changes that made
e-discovery an issue and what they mean to you

• Your ESI IQ — get a comprehensive look at your electronically
stored information (ESI) and how to manage it effectively

• Set up a team — assemble a team of employees from your IT
and Legal departments and establish how to work together on
important e-discovery projects

• Make a plan — identify potentially relevant ESI and how to
comply with litigation holds

• Put the plan into action — preserve ESI, redact privileged info,
and produce ESI in its native format, including metadata

• If you’re challenged — find out how to evaluate admissibility
and document your evidence

• Be prepared — build an electronic records management
program and policy and monitor compliance

• Call for backup — know when to bring in outside vendors and
computer forensics specialists

e-D
isco

very

Volonino
Redpath

spine=.72”

Page 2

spine=.72”

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Page 181

Chapter 10

Protecting Privilege, Privacy,
and Work Product

In This Chapter
▶ Recognizing the vast amount of ESI available

▶ Knowing the rules of evidence and procedure

▶ Finding out what�s privileged, protected, or not

▶ Asking for protection (or forgiveness)

▶ Steering clear of waivers

▶ Making agreements that protect ESI

Any game you play comes with established rules you need to follow and penalties you incur for breaking them. When litigation triggers, you�re
in a high-stakes game involving charges, pleas, evidence, and so on. This
game has rules that govern evidence discovery, and breaking these rules
(intentionally or not) can have serious consequences for the outcome of your
case. Consider e-discovery the Super Bowl of discovery where the plays you
run are controlled by Federal Rules of Civil Procedures (FRCP) and Federal
Rules of Evidence (FRE), and are refereed by the courts.

In state cases, state rules apply and may vary from the federal rules. Because
the general concepts involved apply to both state and federal rules, we focus
the chapter discussion on federal rules.

The amount of information that�s stored electronically (ESI) is staggering, but
not all this ESI is eligible for discovery. The rules governing discovery of ESI
are devised to protect certain types of communication from disclosure. In
this chapter, you find out what ESI is protected from e-discovery because of
privilege (communication considered confidential, such as doctor/patient),
privacy (trade secrets and the like), or work product (materials prepared in
the preparation of the case). You also discover how to assert that certain ESI
deserves protection and how to protect ESI if inadvertent disclosure occurs.

Page 182

166 Part IV: Processing, Protecting, and Producing ESI

Facing the Rising Tide of
Electronic Information

Just envision the explosion in the number of servers and hard drives of
handhelds that retain a copy of e-mail messages that have been copied and
forwarded. There’s no indication that the exponential growth of business and
personal text messaging (via iPhones, BlackBerrys, and social networks) is
abating. These venues exchange more e-mail messages in one day than the
U.S. Postal Service handles mail in a year.

Because of this digital deluge, you may often have hundreds of thousands
of documents that you must review for potential confidential information or
privileged communication. Therefore, the cost of e-discovery and, with it, the
cost and other burdens associated with filtering protected or privileged ESI,
has escalated.

010101010
101010101
010101010
101010101
010101010
101010101

In Rowe Entertainment v. Williams Morris et al., the estimated costs of filtering
through ESI for two of the multiple defendants would conservatively be over
$370,000 and take upward of two years to complete. The ESI included hun-
dreds of thousands of documents.

Imagine having 200,000 documents stacked in front of you and trying to
find two documents that may be confidential or privileged. This needle-in-
the-haystack scenario is a common occurrence, and the haystack is getting
bigger. On television, cases get finished up within an hour — unless the show
is a miniseries; then it may take as long as four hours. The reality is that the
e-discovery process can take years.

Respecting the Rules of
the e-Discovery Game

Certain sections of the FRE and FRCP serve as the rulebook for the e-discovery
game. Therefore, knowing how the rules are evaluated and applied is essential
for managing the e-discovery process. Additionally, these sections help you
identify whether ESI deserves protection because of privilege, privacy, or
work product.

Page 362

346 e-Discovery For Dummies
Web sites (continued)

Sedona Principles, 79, 137
Socha Consulting, 152
Stanford Law School Securities Class

Action Clearinghouse, 38
Supreme Court of the United States,

306–307
vdiscovery, 152
WG1, 119

Web-based review platforms, 161–162
Wex, wiki-like legal dictionary, 307
wikis, social networking technology, 53
willful mismanagement of property, 115
wiretap violations, 280
withheld ESI, 212
witness, Ideal Aerosmith, Inc. v. Acutronic

USA, Inc., 141
witness designation, 295–296
witness testimony, 205
word-frequency lists, 155

work product
ESI first-pass review, 161
Hickman v. Taylor, 169
protections, 169–170
waiver, avoiding, 173

Working Group on Electronic Document
Retention and Production, 117–119

Working Group Series (WGS), 302
written document retention, Keithley v.

Homestore.com, Inc., 124

• X •
X-Ways Forensics, 223
X-Ways WinHex, 223

• Y •
Yelp, 53
YouTube, 53

Page 363

Linda Volonino
Ian Redpath
e-discovery consultants

Learn to:
• Follow the correct steps in the e-discovery

process

• Anticipate potential risks

• Develop an e-discovery strategy for
your company

• Identify best practices in the event
of litigation

e-Discovery
Making Everythin

g Easier!


Open the book and find:

• Why you can’t ignore e-discovery

• How to prepare for litigation

• Ten essential e-discovery rules

• How to create a data map

• What data to keep

• How to set up a document
repository

• Suggestions for controlling your
e-discovery costs

• How to review, process, and filter
information

Linda Volonino is an e-discovery consultant and computer forensics

expert who aids lawyers and judges in preparing for e-discovery. She is

coauthor of Computer Forensics For Dummies. Ian Redpath is an attorney

with 32 years of litigation experience in federal courts. He consults on

e-discovery.

$29.99 US / $35.99 CN / £21.99 UK

ISBN 978-0-470-51012-4

System Administration/
Storage & Retrieval

Go to Dummies.com®
for videos, step-by-step examples,

how-to articles, or to shop!

Be prepared for legal action!
Learn about e-discovery rules,
protections, and vulnerabilities
Here are the issues, challenges, strengths, and limitations
of e-discovery in an easy-to-understand guide. Find out
how to identify, protect, and produce electronically stored
information, prepare for litigation, avoid tainting evidence,
and much more. It’s a much better (and cheaper) way to
learn about this hot legal issue than through experience!

• What happened — explore the legal changes that made
e-discovery an issue and what they mean to you

• Your ESI IQ — get a comprehensive look at your electronically
stored information (ESI) and how to manage it effectively

• Set up a team — assemble a team of employees from your IT
and Legal departments and establish how to work together on
important e-discovery projects

• Make a plan — identify potentially relevant ESI and how to
comply with litigation holds

• Put the plan into action — preserve ESI, redact privileged info,
and produce ESI in its native format, including metadata

• If you’re challenged — find out how to evaluate admissibility
and document your evidence

• Be prepared — build an electronic records management
program and policy and monitor compliance

• Call for backup — know when to bring in outside vendors and
computer forensics specialists

e-D
isco

very

Volonino
Redpath

spine=.72”

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