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
25 Thursday Feb 2016
Posted in Discovery, Document Review, Federal Rules of Discovery, Recent Links and Articles
≈ Comments Off on Don’t Challenge Under Rule 34 If You Cannot Explain Why.
Tags
Bates Numbering, Bow Tie Law Blog, E-Discovery, Joshua Gilliland, Request for Production, Rule 34
Attack the Form of Production, by Joshua Gilliland, Esq., Bow Tie Law Blog
Oh, Rule 34. You are the code section that keeps giving.
Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), a party ’must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.’
A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. . . .
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. . . .
13 Saturday Feb 2016
Posted in Apps, Clouds, Document Retention, Dropbox, Evernote, Google, Law Office Management, Legal Technology, Management, Marketing, Office Procedures, Technology, Time Management
≈ Comments Off on App Honey Pot for Lawyers and Other Legal Professionals.
Tags
Apps, Document Storage, Dropbox, E-Discovery, Law Office Management, Legal Productivity Blog, Marketing, Note Taking, Tim Baran
50+ Apps and Services to Manage and Grow Your Law Practice, by Tim Baran, Legal Productivity Blog
[H]ere’s a list culled from feedback from solos and small firm lawyers and administrators, my own experience, and lots of research, that will help to optimize the day-to-day management and growth of your practice. . . .
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.’ . . .
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. . . .
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? . . .
24 Wednesday Jun 2015
Posted in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation
≈ Comments Off on Spoiled Evidence On Both Sides – What Else Could Go Wrong?
Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES
Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)
In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .
07 Sunday Jun 2015
Posted in Discovery, E-Discovery, Legal Technology
≈ Comments Off on Why eDiscovery And Legal Technology Should Be Required In Law Schools.
Tags
E-Discovery, James B. Levy, Law Schools, Law Students, Legal Skills Blog, Legal Techology, Luddites
Law Schools And The Need To Teach Ediscovery Practice Skills, by James B. Levy, Legal Skills Prof Blog
While some state bar associations’ ethical opinions are requiring its members to keep up to date with legal technology, law schools do not seem to have gotten on board. If lawyers already practicing are considered behind if they do not aggressively incorporate legal technology in their practice, shouldn’t law schools be leading rather than following? Paralegal programs – are you paying attention? -CCE
Though many legal practice areas have been in decline since the Great Recession, the demand for eDiscovery services has skyrocketed. This post from Bloomberg’s Big Law Business blog says that the law school curriculum needs to likewise evolve by providing more training opportunities that teach the next generation of lawyers these vital practice skills . . . .
20 Wednesday May 2015
Posted in Discovery, E-Discovery, Privilege and Confidentiality
≈ Comments Off on E-Discovery Red Herring?
Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog
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. . . .
19 Tuesday May 2015
Posted in Discovery, E-Discovery, Preservation, Sanctions
≈ Comments Off on Angry Judge Sanctions Defendants For E-Discovery Spoilation.
Tags
Data Preservation, Discovery, Doug Austin, E-Discovery, e-Discoverydaily Blog, Motion to Compel, Spoilation
Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog
In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.
You’ve got to love an order that begins this way:
‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .
02 Saturday May 2015
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on No Perfection Standard In E-Discovery?
Tags
Ball In Your Court Blog, Competency, Craig Ball, Discovery, E-Discovery, Request for Production of Documents
Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog
https://ballinyourcourt.wordpress.com/2015/05/01/is-there-a-right-to-fail-in-e-discovery/
Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.
Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .
10 Friday Apr 2015
Posted in Cybersecurity, Discovery, E-Discovery, Law Office Management, Legal Ethics, Legal Technology
≈ Comments Off on Would You Report A Data Breach At Your Law Firm?
Has the Law Firm Holding Your Data Ever Suffered a Breach? You May Never Know: eDiscovery Trends, by Doug Austin, eDiscoverydaily Blog
In February, we discussed a report about data breach trends in 2014 and how those trends compared to data breaches in 2013. That report provided breach trends for several industries, including the healthcare industry, which suffered the most breaches last year (possibly because stolen health records are apparently worth big money). But, according to a recent report, you won’t see any trends for law firms because the legal profession almost never publicly discloses a breach. . . .
19 Thursday Mar 2015
Posted in Attorney Fees and Costs, Depositions, Discovery, E-Discovery, Hard Drives, Taxation of Costs, Video Deposition
≈ Comments Off on Imaging A Hard Drive = Making A Copy And Within Plain Meaning Of Taxation Of Costs.
Tags
Bow Tie Law Blog, E-Discovery, Hard Drives, Josh Gilliland, Taxation of Costs, Video Depositions
Stating Reality: Imaging a Hard Drive Makes a Copy, by Josh Gilliland, Esq., Bow Tie Law
https://bowtielaw.wordpress.com/2015/03/19/stating-reality-imaging-a-hard-drive-makes-a-copy/
Taxation of cost cases do not generally have happy endings for recovering eDiscovery costs. The United States Court of Appeals for the Sixth Circuit issued a very important opinion on March 17, 2015 well grounded in the reality of civil litigation and the law where eDiscovery costs were recovered.
It also takes a swing at Race Tires, which is always a welcome read.
The Court of Appeals held that the cost of video deposition synchronization and transcript were properly taxed. Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S. App. LEXIS 4184, 2-3 (6th Cir. Ohio 2015). The Trial Court had determined the synchronized video deposition was ‘reasonably necessary’ and the opposing party never explained how the costs were either unreasonable or unnecessary. Id.
For anyone who has conducted deposition review, this is good news. I have spent many hours reviewing depositions and video depositions. ‘Reasonably necessary’ is an understatement. Synced video depos allow you to understand the context of the testimony. A simple question and answer in a transcript can look harmless, but if the video shows the deponent turning bright red, biting his lip, and answering the question with his teeth clinched, you know that testimony is important. . . .
14 Saturday Mar 2015
Posted in Discovery, E-Discovery, Privilege and Confidentiality, Technology-Assisted Review
≈ Comments Off on Recent Opinions On E-Discovery Hot Topic – Technology-Assisted Review.
Tags
Confidentiality, Discovery, E-Discovery, K&L Gates, Seed Set Transparency, TAR, Technology-Assisted Review
Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues, published by K&L Gates
Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)
Taking up the topic of technology-assisted review (‘TAR’), Magistrate Judge Andrew Peck’s most recent opinion declares that ‘it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of ‘how transparent and cooperative the parties need to be with respect to the seed or training set(s).’ And, while this opinion did not resolve that question (because the parties in the present case agreed to ‘a protocol that discloses all non-privileged documents in the control sets’), it does provide some notable commentary on the issue. . . .
07 Saturday Mar 2015
Posted in Continuing Legal Education, Diligence, Discovery, E-Discovery, Ethics Opinions, Federal Rules of Discovery, Legal Ethics, Technology
≈ Comments Off on Why Aren’t All Lawyers And Law Students Trained In E-Discovery And Should They Be?
The Conundrum of Competence in E-Discovery: Need Input, by Craig Ball, Ball In Your Court Blog
I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.
So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to ’get there;’ you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.
The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.
These laudable efforts just say ‘get there.’ They do not show us the way. . . .
04 Wednesday Mar 2015
Posted in Discovery, Document Review, E-Discovery, Legal Writing, Motions, Requests for Production
≈ Comments Off on Defendants Recover E-Discovery Costs And How They Did It.
Tags
Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates
Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)
Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .
08 Sunday Feb 2015
Posted in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34
≈ Comments Off on Do-It-Yourself E-Discovery? Is There Such A Thing?
Tags
Ball In Your Court Blog, Computer Forensics, Craig Ball, Discovery, E-Discovery, E-Mail, Evidence, Native Format, PST Files
Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog
In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too.
I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE
This is the thirteenth 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.
Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]
Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next. Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.
What’s a PST?
Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.
What About Outlook?
Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .
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18 Sunday Jan 2015
Posted in Bankruptcy Court Rules, Court Rules, Courts, Discovery, E-Discovery, E-Filing, Federal District Court Rules, Local Rules
≈ Comments Off on Honey Pot of Federal Court E-Discovery Local Rules, Forms and Guidelines.
Tags
Bankruptcy Court Rules, E-Discovery, E-Discovery Court Rules, E-Filing, ESI, K&L Gates, Local Court Rules, U.S. District Court Rules
Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law Blog, published by K&L Gates
No doubt many of you have already have bookmarked this site. K&L Gates compiled this comprehensive list of local rules, forms and guidelines for U.S. District Courts and U.S. Bankruptcy Courts. At the bottom of their post, you will find a link that will take you directly to the U.S. Court’s website of all federal court rules. Thank you, K&L Gates. -CCE
Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
Many United States District Courts now require compliance with special local rules, forms, or guidelines addressing the discovery of electronically stored information. Below is a collection of those local rules, forms and guidelines, with links to the relevant materials. Please note also that many individual judges and magistrate 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 or magistrate judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in.
