Tag Archives: Ball in Your Court

Craig Ball Presents “Introduction to Discovery in U.S. Civil Litigation.

03 Sunday Apr 2016

Posted by in Civil Procedure, Discovery, E-Discovery, Federal Rules of Discovery, Litigation, Research

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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]. . . .

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Deduplication – Craig Ball Takes Us Deeper Into The Belly of The E-Discovery Beast.

08 Wednesday Jul 2015

Posted by in Discovery, E-Discovery, Native Format

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Deduplication: Why Computers See Differences in Files that Look Alike to You, by Craig Ball, Ball In Your Court

http://tinyurl.com/oe5xd63

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. . . .

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The ABC’s of Fielding Data.

29 Monday Jun 2015

Posted by in Computer Forensics, Discovery, E-Discovery, Fielded Data, Legal Technology, Metadata, Native Format

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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? . . .

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E-Discovery Red Herring?

20 Wednesday May 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality

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Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/20/riley-cell-phone-decision-a-red-herring-in-e-discovery/

Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. _, 134 S. Ct. 2473 (2014) to civil discovery. I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley. . . .

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Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

20 Tuesday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Litigation Hold, Preservation, Relevance, Requests for Production

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The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court

http://tinyurl.com/q4uozfh

This is the seventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

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Time For A New Office Computer?

19 Monday Jan 2015

Posted by in Apple, Computer Forensics, Confidentiality, Law Office Management, Legal Ethics, Legal Technology, PC Computers, Technology, Technology

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Give Away your Computer, Revisited, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/01/14/give-away-your-computer-revisited/

This is the fourth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Give Away Your Computer 

[Originally published in Law Technology News, July 2005]

With the price of powerful computer systems at historic lows, who isn’t tempted to upgrade? But, what do you do with a system you’ve been using if it’s less than four or five-years old and still has some life left in it? Pass it on to a friend or family member or donate it to a school or civic organization and you’re ethically obliged to safeguard client data on the hard drive. Plus, you’ll want to protect your personal data from identity thieves and snoopers. Hopefully you already know that deleting confidential files and even formatting the drive does little to erase your private information—it’s like tearing out the table of contents but leaving the rest of the book. How do you be a Good Samaritan without jeopardizing client confidences and personal privacy? . . . .

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What Is The Case About And What Are You Looking For?

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Hard Drives, Preservation, Requests for Production

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Don’t Try This at Home, Revisited, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/01/16/dont-try-this-at-home-revisited/

This is the fifth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Don’t Try This at Home

[Originally published in Law Technology News, August 2005]

The legal assistant on the phone asked, “Can you send us copies of their hard drives?”

As court-appointed Special Master, I’d imaged the contents of the defendant’s computers and served as custodian of the data for several months. The plaintiff’s lawyer had been wise to lock down the data before it disappeared, but like the dog that caught the car, he didn’t know what to do next. Now, with trial a month away, it was time to start looking at the evidence.

“Not unless the judge orders me to give them to you,” I replied. . . .

Craig Ball’s E-Discovery Tips For Judges.

18 Saturday Oct 2014

Posted by in Discovery, E-Discovery, Requests for Production

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10 E-Discovery Tips for Judges, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2013/08/09/1370/

I speak with a lot of judges about e-discovery and digital evidence.  I’ve taught at Federal Judicial Center programs from coast-to-coast and addressed confabs of judges in various states. Some of these presentations have turned into annual pilgrimages.  Have PowerPoint.  Will travel.

It’s a privilege to address judges because, among their own, judges are more cordial, relaxed and candid than in their courtrooms.  But, it’s also a responsibility and a challenge.  In the state systems, I can often be a judge’s first exposure to e-discovery.

Lawyers want the quick course in e-discovery.  They expect to glean ESI skills in minutes, before they glaze over with the talk of metadata and forms of production. Lawyers seek the canned checklist or scripted list of questions, and little care if they understand what the check boxes mean or what the follow up question should be.

It drives me bonkers. . . .

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

Craig Ball Revisits Gigabytes.

15 Wednesday Jan 2014

Posted by in Computer Forensics, Databases, Discovery, E-Discovery, Excel, Legal Technology, Microsoft Office, Word

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Revisiting ‘How Many Documents in a Gigabyte?’, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/npc3jn3

[I]’m happy to point you to some notable work by my friend, John Tredennick. I’ve known John since the emerging technology was fire and watched with awe and admiration as John transitioned from old-school trial lawyer to visionary forensic technology entrepreneur running e-discovery service provider, Catalyst. John is as close to a Renaissance man as anyone I know in e-discovery, and when John speaks, I listen.

Lately, John Tredennick shared some revealing metrics on the Catalyst blog looking at the relationship between data and document volumes, an update to his 2011 article called, How Many Documents in a Gigabyte?

Craig Ball Answers His Mail.

06 Friday Dec 2013

Posted by in E-Discovery, Emails, Evidence, Forensic Evidence, Legal Technology, Metadata, Trial Tips and Techniques

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Good Questions!, by Craig Ball, Ball in Your Court Blog

http://ballinyourcourt.wordpress.com/2013/12/06/good-questions/

As always, Craig Ball delivers. Great answers to e-discovery terminology and best practices. -CCE

Email Preservation of Gmail Can be Tricky and Tedious, But Not Difficult.

17 Sunday Nov 2013

Posted by in Discovery, E-Discovery, Emails, Evidence, Trial Tips and Techniques

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Collecting Gmail for Preservation, by Craig Ball, Ball in Your Court BlogExquisite-gmail red

http://tinyurl.com/mcynpsl

As Mr. Ball points out in this excerpt below, Gmail preservation is tedious, but not difficult:

[T]hough collecting and validating the complete contents of a Gmail account can be tricky and tedious, it’s not all that difficult to do.  Happily, unless you do something really dumb, it’s unlikely that even a botched Gmail collection effort will harm the contents of the account.

E-Discovery and the Zamundan Royal Bottom Wipers

20 Sunday Oct 2013

Posted by in Discovery, E-Discovery

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Ball in your Court

toilet paper moneyI’m on a crusade to underscore the need for lawyer competence in that crucial “e” that precedes “e-discovery.”  It’s no longer enough to understand the law in isolation; today’s lawyer must understand some fundamentals of information technology and electronic evidence.  My efforts often prove quixotic, as everywhere I’m met with the attitude that electronic discovery isn’t a lawyer’s concern:  “It’s something you hire people to do,” they say.

Certainly, we must hire people to do things we cannot possibly do.  But I contend that we hire people to do many things we could learn to do ourselves, and do economically.  Remember Eddie Murphy’s royal backside wipers in Coming to America? All it takes is money to burn; and if it’s someone else’s money, who really cares?

But at what point do lawyers outsource themselves into superfluity?  Clients can hire vendors.  Bigger clients can and should bring much of…

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