06 Monday May 2019
Posted in E-Discovery, Native Format, Redaction
≈ Comments Off on This Is How to Redact The Mueller Report.
Mueller? Mueller? More E-Discovery Lessons from Bill and Bob, by Craig Ball, Ball In Your Court
https://craigball.net/2019/04/23/mueller-mueller-more-e-discovery-lessons-from-bill-and-bob/
Is there anyone who knows and can explain e-discovery like Craig Ball? If so, I don’t know who it is. This is one is a keeper. If you think you understand how to redact a document, this post is for you. -CCE
07 Saturday Jul 2018
Posted in Concept Search Tools, Discovery, E-Discovery, Paralegals/Legal Assistants
≈ Comments Off on A Guide to E-Discovery Terms.
The Big List of E-Discovery Terms Every Paralegal Should Know, by Jenny Tucker, My Paralegal Place (reprinted with author’s permission)
http://www.myparalegalplace.com/2017/08/the-big-list-of-e-discovery-terms-every.html
I have paralegal friends who have had special training and received credentials for their knowledge of e-discovery. I also have paralegal friends who rarely run across the same kind of challenge. If these terms are common to you, I tip my hat. If not, I hope this helps. Thanks, Jenny, for sharing. -CCE
21 Saturday Apr 2018
Posted in E-Discovery
≈ Comments Off on Federal Judge’s E-Admissibility Chart.
Handy Chart on E-Admissibility, posted by Craig Ball, Ball In Your Court (with hat tip to U.S. District Court Judge Paul Grimm)
In my opinion, Craig Ball, his seminars, and his blog, are at the top of my list of “go to” sources anything related to e-discovery. Written by U.S. District Court Judge Paul Grimm, this chart is e-discovery gold. Highly recommend a bookmark! -CCE
I received a fine gift this morning from U.S. District Judge Paul Grimm, and with the authors’ permission, I’m sharing it with you. It’s a splendid chart on admissibility of electronic evidence that any trial lawyer will want when going to Court. For younger readers, I will explain what “going to Court” means in a future post.
01 Friday Dec 2017
Posted in Admissibility, Discovery, Document Coding, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on eDiscovery Day Has Arrived.
Everlaw Guest Post: When Has a Producing Party Completed Document Review? by Josh Gilliland, Bow Tie Law
On November 24, 2017, I posted a reminder of this federal evidence rule change that became effective today, December 1st, or as Josh calls it, “eDiscovery Day.” Josh Gilliland’s post and webpage covers the changes in more depth, and are worth a bookmark for future reference. Don’t overlook the tweets on the right-hand side of the page. -CCE
24 Friday Nov 2017
Posted in Admissibility, Authentication, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on December 1, 2017 Amendments to the Federal Rules of Evidence on Hearsay and E-Discovery Authentication.
Federal Rules of Evidence Amendments for 2018, Federal Rule of Evidence (2017 Edition)
https://www.rulesofevidence.org/federal-rules-of-evidence-amendments-for-2018/
The links no longer work in my January 22, 2017 post on the amendments to the Federal Rules of Evidence. The amendments are effective December 1, 2017. This link is reliable and worth a bookmark. This website includes the rules, highlights the amendments, and the Committee Notes. -CCE
22 Sunday Jan 2017
Posted in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.
Tags
BakerHostetler, Carey Busen, Discovery Advocate Blog, E-Discovery, Federal Rules of Evidence, Gilbert S. Keteltas, Gregg Kettles, Hearsay, Santa Clara Law Review
14 Saturday Jan 2017
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on E-Discovery and the Law of Diminishing Returns.
Citing “Diminishing Returns,” Court Declines To Compel Additional Discovery, Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016), Electric Discovery Law, K&L Gates
When it comes to e-discovery, how much is too much? When do you or opposing counsel reach the point where the costs outweigh the value? The 2015 amendment to the Federal Rules of Civil Procedure did much to provide more guidance on e-discovery. Rule 26 is the focus of this post.
E-discovery normally means that you and your client have spent hours and lots of money on the case. If you cannot decide when enough is enough and neither the client nor the attorney are willing to stop the bleeding, the court may do it for you. Actually, the court has a duty to stop e-discovery when it becomes redundant and the cost outweighs the value of the return. -CCE
16 Sunday Oct 2016
Posted in Discovery, E-Discovery, Preservation
≈ Comments Off on The Difference Between a Preservation Letter and Presentation Notice.
Crafting the “Perfect” Legal Hold Notice, by Craig Ball, Ball In Your Court
https://ballinyourcourt.wordpress.com/2016/10/09/crafting-the-perfect-legal-hold-notice/
When it comes to e-discovery, Craig Ball and his blog, Ball in Your Court, is one of my top resources. Some years ago, he posted “The Perfect Preservation Letter,” as a guide of what you would send to the opposing party to put them on notice of a litigation hold.
This document is similar and just as important – an internal notice or the kind of notice you would give to your client. The following is only a snippet of his post.
When it comes to deciding whether to send a preservation letter or notice, I would err on the side of caution. In the early stages of a case, you may not know whether the legal issue will become litigation. Not all disputes are litigated. But if you wait until it does, e-discovery may already be wiped or corrupted.
Some clients may balk at the scope and breadth of your preservation notice, which is why it Mr. Ball’s rules of thumb are so helpful. A reasonable precaution will be worth the effort. – CCE
[T[he inapparent distinction between a preservation letter and a preservation notice is that the latter is an internal communication better termed a legal hold directive. You send a preservation letter to the other side. The preservation notice is what a party furnishes to its own principals, employees, agents, contractors and anyone else aligned with the party giving the notice and obliged to preserve information in anticipation or initiation of litigation. Clearly, we must find better terminology to distinguish the two than just “letter” and ‘notice.’
[I] drafted a list of ten elements I thought were essential components of whatever communication aspires to call itself the perfect preservation notice.
11 Tuesday Oct 2016
Posted in Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Preservation, Requests for Production, Subpoena Duces Tecum
≈ Comments Off on For E-Discovery Requests, The Court Says It’s Not Enough To Say Nothing Was Found.
Don’t Just Say, “No Emails Found,” by Josh Gilliland, Bow Tie Law Blog
http://bowtielaw.com/2016/10/04/dont-just-say-no-emails-found/
The plaintiff asked the defendant to produce emails relevant to an event on a specific date. The defendant said there were no such emails, and had nothing to produce. The judge agreed that the defendant could not produce what did not exist, but ordered the defendant to show how it determined no emails existed. Simply saying that no emails existed was not a sufficient answer.
If you are the defendant, what else should you say to satisfy the court? -CCE
20 Saturday Aug 2016
I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.
Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.
Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.
There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.
With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.
A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.
Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.
As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.
This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.
Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE
03 Sunday Apr 2016
Posted in Civil Procedure, Discovery, E-Discovery, Federal Rules of Discovery, Litigation, Research
≈ Comments Off on Craig Ball Presents “Introduction to Discovery in U.S. Civil Litigation.
Introduction to Discovery in U.S. Civil Litigation, by Craig Ball, Ball In Your Court
https://ballinyourcourt.wordpress.com/2016/04/03/introduction-to-discovery-in-u-s-civil-litigation/
Thank you, Craig Ball, for generously sharing your materials. If you have any interest whatsoever in litigation, this is a “must” read. -CCE
I am fortunate to teach electronic discovery and digital evidence in many venues. . . .
All of these entail accompanying written material, so there is a lot of research and writing for the various courses and presentations. Some of my students aren’t lawyers or are law students with the barest theoretical understanding of discovery. I’ve found it’s never safe to assume that students know the mechanisms of last-century civil discovery, let alone those of modern e-discovery. Accordingly, I penned the following short introduction to discovery in U.S. civil litigation and offer it here in case you need something like it, especially if you’re also teaching this stuff. [It’s copyrighted, but feel free to use it with attribution]. . . .
25 Thursday Feb 2016
Posted in Cell Phones, Discovery, E-Discovery, Emails, Emails, Legal Technology, Litigation Hold, Municipal Law, Open Records Act, Preservation, Requests for Production, Sanctions
≈ Comments Off on Litgation Hold – Too Little Too Late.
Tags
Doug Law, E-Discovery, eDiscovery daily Blog, Emails, Litigation Hold, Police, Sanctions, Text Messages
Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: eDiscovery Case Law, by Doug Law, eDiscovery daily Blog
In Stinson v. City of New York, 10 Civ. 4228 (RWS) (S.D.N.Y. Jan. 2, 2016), New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants .
Case Background
In this civil rights class action against the City of New York, it was determined that the City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case and the litigation hold was not effectively communicated, and none of the officers who were named in the City’s initial disclosures acknowledged receiving it. . . .
06 Saturday Feb 2016
Posted in Android Phones, Blackberry Phones, Cell Phones, Discovery, E-Discovery, Evidence, Forensic Evidence, iPhones, Legal Technology, Preservation, Sanctions, Spoilation
≈ Comments Off on Clients – Don’t Wipe That Cell Phone!
Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone, by Doug Austin, eDiscovery Case Law
In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case. . . .
01 Friday Jan 2016
Posted in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility
≈ Comments Off on Chief Justice Urges Judges To Impose More Management Over Their Cases.
Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog
Justice Roberts’ words apply to state courts as well. Ignoring client’s cases, unnecessary and burdensome discovery disputes, and repeated continuances do nothing to endear the legal profession to their clients or the public. -CCE
Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases. Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers. . . .
26 Thursday Nov 2015
Posted in Court Rules, Courts, Discovery, E-Discovery, Federal District Court Rules, Preservation
≈ Comments Off on Questions About The New Federal Rules Amendments on Discovery? – 3rd of 5-Part Guide.
Tags
Amended Rules of Federal Civil Procedure, Discovery Advocacy Blog, E-Disocvery, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Preservation, Robert J. Tucker
Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Preservation, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocacy Blog
This is the third of five posts discussing the current amendments to the Federal Rules of Civil Procedure. The Rules went into effect December 1, 2015. Today’s post addresses “Preservation.” -CCE
26 Thursday Nov 2015
Posted in Admissibility, Concept Search Tools, Court Rules, Courts, Discovery, E-Discovery, Evidence, Federal District Court Rules, Preservation, Rule 16 Conference
≈ Comments Off on Questions About The New Federal Rules Amendments on Discovery? – 2nd of 5-Part Guide.
Tags
Amended Rules of Federal Civil Procedure, Discovery Advocate Blog, Early Case Assessment, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Preservation, Robert J. Tucker, Rule 16 Conference
Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case Assessment, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog
The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. . . .
Today we review: Early Case Assessment.
21 Saturday Nov 2015
Posted in Civil Procedure, Discovery, E-Discovery, Federal Civil Procedure, Preservation
≈ Comments Off on Questions About The New Federal Rules Amendments on Discovery? – 1st of 5-Part Guide.
Tags
Discovery Advocate Blog, Federal Rules of Civil Procedure, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Proportionality, Robert J. Tucker, Rule 26
Day 1: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Proportionality, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog
If you do not fully comprehend the recent amendments to the Federal Rules of Civil Procedure, you are not alone. We will learn more as district and circuit courts rule on cases affected by these amendments.
Please note the hyperlink under the “Conference Commentary” button to see the Summary of The Report of The Judicial Conference Committee on Rules of Practice and Procedure, which will also assist you. -CCE
The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work . . . .
15 Sunday Nov 2015
Posted in Discovery, E-Discovery, Emails, Preservation
≈ Comments Off on Were Deleted Emails A Failure to Preserve?
Prejudice and to Avoid “Confusing the Issues,” by Electronic Discovery Law, K&L Gates Blog
West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)
In this case, the court granted Defendants’ motion to exclude ‘Plaintiff’s use of any argument or evidence of alleged spoliation’ where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s ‘old computer’ and to hire a third party to search for and recover relevant emails and documents from the same. . . .
04 Sunday Oct 2015
Posted in Admissibility, Discovery, E-Discovery, Emails, Emails, Evidence, Federal Rules of Discovery, Forensic Evidence, Gap-Period Emails, Legal Technology, Motion to Compel, Relevance, Requests for Production
≈ Comments Off on Defendant Ordered by Court to Produce Gap-Period Emails on Backup Tapes.
Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law, by Doug Austin, eDiscoveryDaily Blog
In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, ‘good cause supports their discoverability.’ . . .
29 Tuesday Sep 2015
Posted in Discovery, E-Discovery, E-Discovery Master, Evidence
≈ Comments Off on Oklahoma’s Discovery Code Changing to Add E-Discovery Master.
New Discovery Master Law Takes Effect on Nov. 1, 2015, by James C. Milton, Oklahoma Bar Journal – Sept. 26, 2015, Vol. 86, No. 25.-
(Originally published in the Oklahoma Bar Journal – Sept. 12, 2015 – Vol. 86, No. 24)
http://www.okbar.org/members/BarJournal/archive2015/SeptArchive15/OBJ8624Milton.aspx
Effective on Nov. 1, 2015, the Oklahoma Discovery Code will include a new statute that provides for discovery masters in civil litigation.1 The new statute will be codified as Section 3225.1 of the Discovery Code.
Section 3225.1 is based in large part on Rule 53 of the Federal Rules of Civil Procedure..2 Rule 53 allows for federal courts to appoint ‘judicial masters’ to address complex issues in exceptional cases. . . .
19 Saturday Sep 2015
Posted in E-Discovery, Evidence, Legal Ethics, Social Media
≈ Comments Off on Social Media – E-Discovery Waiting To Be Plucked.
Social Media E-Discovery: Its Time Is Here, by Dera J. Nevin, Canadian Lawyer (with hat tip to Allen Mihecoby, CLAS, RP®)
http://www.canadianlawyermag.com/5732/Social-media-e-discovery-its-time-is-here.html
Social media is an important source of discovery in an increasing range of cases and can often yield the most important evidence. Social media and its derivatives are prevalent with many people using social media as their dominant communications channel, preferring some in-app messaging tools to e-mail. Corporations, too, are using these media to target and communicate with their customers. Ignore these sources and you leave potentially game-changing evidence on the table. . . .
19 Wednesday Aug 2015
Posted in Civil Procedure, Court Rules, Courts, Discovery, E-Discovery
≈ Comments Off on Current List of Each State’s E-Discovery Rules.
Current Listing of States That Have Enacted E-Discovery Rules, Electronic Discovery Law, K&L Gates Blog
http://www.ediscoverylaw.com/state-district-court-rules/
K&L Gates keeps this list of state’s e-discovery rules constantly updated. I love one-stop clicking and appreciate the reminder to look for your judge’s local rules, forms, and guidelines. -CCE
More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Please note also that many judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in. . . .
04 Tuesday Aug 2015
Posted in Discovery, E-Discovery, Evidence, Forensic Evidence, Law Office Management, Litigation Hold, Office Procedures, Preservation, Technology
≈ Comments Off on Is It Okay To Wipe A Former Employee’s Computer?
Tags
Computer Files, Doug Austin, E-Discovery Preservation, eDiscoverydaily, Law Office Management, Litigation Hold, Spoliation
Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law, by Doug Austin, eDiscoverydaily
For many employers, it is normal procedure to “wipe” the computer of recently former employees after removing anything not already stored on the employer’s network. Is this a bad practice? -CCE
In Charvat et al. v. Valente et al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith. . . .
08 Wednesday Jul 2015
Posted in Discovery, E-Discovery, Native Format
≈ Comments Off on Deduplication – Craig Ball Takes Us Deeper Into The Belly of The E-Discovery Beast.
Tags
Ball in Your Court, Craig Ball, Deduplication, E-Discovery, Hash Algorithms, Page Description Language
Deduplication: Why Computers See Differences in Files that Look Alike to You, by Craig Ball, Ball In Your Court
An employee of an e-discovery service provider asked me to help him explain to his boss why deduplication works well for native files but frequently fails when applied to TIFF images. The question intrigued me because it requires we dip our toes into the shallow end of cryptographic hashing and dispel a common misconception about electronic documents. . . .
29 Monday Jun 2015
Posted in Computer Forensics, Discovery, E-Discovery, Fielded Data, Legal Technology, Metadata, Native Format
≈ Comments Off on The ABC’s of Fielding Data.
The Virtues of Fielding, by Craig Ball, Ball In Your Court
https://ballinyourcourt.wordpress.com/2015/06/29/the-virtues-of-fielding/
I am a member of the typewriter generation. With pencil and ink, we stored information on paper and termed them ‘documents.’ Not surprisingly, members of my generation tend to think of stored information in terms of tangible and authoritative things we persist in calling ‘documents.’ But unlike use of the word ‘folder’ to describe a data directory (despite the absence any folded thing) or the quaint shutter click made by camera phones (despite the absence of shutters), couching requests for information in discovery as demands for documents is not harmless skeuomorphism. The outmoded thinking that electronically stored information items are just electronic paper documents makes e-discovery more difficult and costly. It’s a mindset that hampers legal professionals as they strive toward competence in e-discovery.
Does clinging to the notion of ‘document’ really hold us back? . . .
The Researching Paralegal 
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