RECORD RETENTION: MINIMIZING THE HEADACHES OF ELECTRONIC DISCOVERY

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1 RECORD RETENTION: MINIMIZING THE HEADACHES OF ELECTRONIC DISCOVERY Presented to Iowa Society of Healthcare Attorneys By Nyemaster, Goode, West, Hansell & O Brien, P.C. 700 Walnut St., Suite 1600 Des Moines, IA Telephone: Facsimile: Parties should attempt to balance the need to preserve relevant information and the need to continue routine computer operations critical to a party s activities. Barbara J. Rothstein, et. al., Managing Discovery of Electronic Information: A Pocket Guide for Judges, FEDERAL JUDICIAL CENTER 2007, at 17. A first year law student should have known that a party must retain documents or records that are likely to be relevant in pending litigation. I. Introduction: Staying Ahead of the Curve Hon. Mark Bennett, Dr. John s, Inc. v. City of Sioux City, Iowa, 486 F.Supp.2d 953, 956 (N.D. Iowa 2007). A. The new federal rules of electronic evidence discovery took effect on December 1, 2006 B. As predicted, e-discovery is now all the rage 1. A new cottage industry has evolved 2. Many firms have created e-discovery practice groups. At Nyemaster Goode we have created an E-Discovery Task Force. April 08 Page 1

2 C. Likewise, there are still many gray areas and unanswered questions. In short, an (outhouse) lawyer s paradise. II. A Short Course on Jargon A. An entirely new language has evolved as a result of the explosion in electronic discovery. It is important to become familiar with shorthand terms. Attached to this outline is a complete glossary of useful terms. Remember that geekspeak is colloquial, parochial, evolving and elitist! B. Some important electronic discovery terms 1. ESI electronically stored information. This can include s, webpages, word processing files, magnetic disks, optical disks (DVDs and CDs) and flash memory ( thumb drives or Absci drives). 2. RIM record and information management 3. RAM random accessed memory (which does not retain when powered down) 4. Native format the format in which the data is ordinarily maintained 5. TIF 6. PDF portable document format 7. Metadata provides information about an electronic file such as its author, when and by whom it was edited and transmission history. 8. Quickpeek A discovery agreement whereby the parties agree that the responding party agrees to provide requested information without a thorough review under the condition the privilege is not waived. 9. Clawback a discovery agreement whereby the parties agree to a procedure for dealing with inadvertently produced privileged information. 10. Legacy data data created on hardware that no longer exists 11. Data downgrading moving data from readily accessible to nonaccessible format 12. Spoliation the destruction or alteration of evidence through act or omission... the kiss of death. April 08 Page 2

3 13. Paper the stuff we used to write things on III. Setting the Scene A. The electronic facts of life. Conventional documents now originate as computer files. has supplanted the post and will soon take the place of phone calls. In the recent past, the discovery of electronicallystored information has become nearly routine. B. The difference. 1. ESI is different from conventional documents in several important ways. Because of the ease of creation, relative low cost, and ephemeral nature, the volume of ESI eclipses that of conventional paper. ESI is also more widely dispersed and often, disseminated. 2. ESI elements have no traditional counterpart for example, metadata. 3. Some forms of ESI are useless when liberated from the system in which they were created. IV. The Document Retention Policy: Savior, Nightmare, or Both A. It is imperative that a modern business entity has a well thought out document retention policy B. Policies vary greatly depending upon the industry. A highly regulated company may have a far more complex policy than the typical firm C. Regardless of the complexity of a firm s record retention policy, it seems that the most important aspect is how flexible it is. Unfortunately, spoliation sanctions are becoming almost commonplace. See, e.g. Dr. John s, Inc. v. City of Sioux City, Iowa, 486 F.Supp.2d 953, 956 (N.D. Iowa 2007). D. Document retention policies are more frequently being discussed in court opinions. See Dr. John s, Inc., supra; In re Napster, Inc. Copyright Litigation, 462 F.Supp.2d 1060, 1073 (N.D. Cal. 2006); Wachtel v. Healthnet, Inc., 239 F.R.D. 81, 95 (D. N.J. 2006). E. The key to an effective policy is the ability of a company to effectuate a litigation hold. It is all a matter of timing. The inability to put the brakes on a document destruction process is nearly fatal when litigation ensues. For example, the court in Wachtel, supra, criticized the defendant s failure to control individual employee destruction. 4/14/2008 Page 3

4 V. Spoliation Sanction Decisions and Developments A. In the Napster, Inc. case, the court closely analyzed the defendant s record retention policy and procedures. For example, the court stated: In addition, the tapes on which Hummer s s were backed up were recycled every three months, and Hummer employees occasionally received s reminding them to delete s. Thus, while Hummer employees may not have individually decided to delete each Napster-related , the policy of deleting all s and failing to preserve Napster-related s continued apace beginning in June 200 at the very latest. Despite failing to maintain files on its own servers, Hummer argues that it attempted to retain Napster-related s by other means. In particular, defendants claim that Barry made a conscious effort to use his Napster address for all Napsterrelated business, and that Barry and Morga forwarded Napsterrelated s to themselves at their Napster accounts, believing that these messages would be automatically saved by Napster. According to Hummer, procedures were in place at Napster to retain all of Napster s s while Barry was Napster s interim CEO (from May 2000 to July 2001). Hummer is unclear on what these procedures were, however. B. In Dr. John s, supra, our own Judge Bennett issued a typically thorough decision including a scathing criticism of the defendant s destruction of documents after litigation started: More specifically, as noted above, the contention that the document retention policy mandated by state law excused destruction of the records in question is laughable and frivolous, because that policy plainly did not require the destruction of any documents, and certainly did not authorize the destruction of records pertinent to the pending litigation. Moreover, purported adherence to the policy by destroying records that the policy did not mandate for destruction was unreasonable and amounted to bad faith conduct where litigation was pending. See id. at 747. Indeed, this case seems to this court to fall well within, not to test the limits of, conduct that constitutes bad faith destruction of documents where the City had not simply been made aware of the circumstances giving rise to a potential lawsuit, but was in the throes of litigating a lawsuit over the constitutionality of its sex shop ordinances at the time that it destroyed records of closed sessions in which the City Council considered those ordinances. Cf. id. (evidence was destroyed after the defendant became aware of the potential for a lawsuit). Moreover, while the City destroyed 4/14/2008 Page 4

5 these records, the City went out of its way to provide evidence and even to generate new evidence to try to justify the ordinances long after they were passed, enjoined, and partially struck down. C. In Wells v. Orange County School Board, N:05-cv-479, 2006 U.S. Dist. Lexis (M.D. Fla., Nov. 7, 2006), the court scolded the defendant s print and save document retention policy D. Other decisions 1. Personal Sanction Against Attorneys a. Qualcomm, Inc. v. Broadcom Corp., 2007 WL (S.D. Cal., Sept. 28, 2007) - $8.5m in sanctions and multiple ethics referrals 2. Large Sanctions Common a. In re: Sept. 11 Liability Insurance Coverage Cases, 2007 WL (S.D. N.Y., June 18, 2007) - $1.25m sanctions b. Columbia Pictures Industries, et. al. v. Bunnell, et. al., CV FMC (JCx)(C.D. Cal., May 29, 2007) aff d 2007 WL (C.D. Cal., Aug. 24, 2007) c. UBS Warburg, 229 F.R.D. 422 (S.D. N.Y. 2004) millions in sanctions and adverse instruction in context of failure to preserve data under control of telecommuters VI. Flaws in Document Retention Policies A. Failure to have a coordinated retention policy B. Giving individual employees too much discretion to determine which documents to retain. See, e.g., Wells v. Orange County School Board, supra, where individual employees were allowed to determine which documents were to be preserved as being of public importance. It is imperative that employees be given very clear guidelines on document retention. C. Lack of a uniform process for communicating and enforcing litigation holds. Many of the spoliation sanction decisions involve situations where a company has what appears to be a solid record retention policy, but the litigation hold is not properly or promptly communicated or enforced. 4/14/2008 Page 5

6 D. Failure to coordinate between legal and IT. This is obvious. Many cases involve document retention policies that are fantastic in theory (legal), but fail miserably in practice (IT). VII. The Effective Document Retention Program A. A tailored program 1. The comments to F.R.C.P. 37(f) state that an effective document retention program should, above all, be tailored to meet the business and technical needs of the company and allow easy retrieval in response to subpoenas. 2. There is no such thing as a one size fits all program. B. An effective program is one developed by legal and IT, focused on the specific needs of the organization and taking into account the unique business environment in which the company operates. C. Centralized litigation hold process. It is extremely important that the employees who are the eyes and ears of the company are required to immediately notify a control office or officer of events that may trigger a litigation hold. A litigation hold is employed, under applicable law, due to actual or reasonably anticipated litigation or governmental investigation. 1. Consider most likely triggers in advance a. Petition b. Subpoena c. EEOC complaint 2. Consider responses to the fringe a. Internal ethics complaint b. Attorney demand letter D. Ongoing training and orientation E. Continuous monitoring F. Typical Elements 1. Record retention schedule a. A list of hospital records and retention dates 4/14/2008 Page 6

7 2. Record definition 3. E-communications policy a. Addresses use of electronic communications b. Describes permitted uses c. Typical elements i. Proper choice of medium ii. iii. iv. Security Content (tone and style) General rules v. vi. vii. Internet usage Compliance questions 4. Legal holds policy a. Suspends routine destruction when necessary b. Typical elements i. Legal responsibility ii. iii. iv. Instructions and methods Subject matter identified Joint determination of methodology among legal and IT v. Duration VIII. Electronic Discovery A. Electronic evidence explosion 1. 93% of documents are created in electronic format 2. 7 of 10 electronic documents never get printed. U.S. News and World Report 4/14/2008 Page 7

8 3. The average employee sends and receives 50 messages a day. That translates into 1.2 million messages a year for an organization with 100 employees. Microsoft Survey Finds Workers Average Only Three Productive Days Per Week, B. The first full year of electronic discovery in review 1. Slightly more than 100 reported decisions 2. The cases reveal the following trends a. One in four involves motions to compel discovery b. One quarter involve sanctions and spoliation c. Over twenty percent involved a dispute over the form of production d. 10% revolve around the adequacy of litigation holds e. A number of cases involved waiver of the attorney client privilege in the discovery process f. The cost of production was at issue in many cases C. Electronic evidence in employment cases 1. Nationally 1 in 4 organizations have had employee subpoenaed 2. 26% of employers have fired employees for abuse 3. 1 in 5 firms have been forced to litigate suits triggered by 4. Local statistics D. Discovery of deleted and inaccessible data 1. It is necessary for a responding party to produce accessible data at its own (considerable) cost. It doesn t matter that there may be substantial time, cost and effort involved. See Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. Feb. 21, 2007). Venture v. U.S., 75 Fed. Ct. 432 (Feb. 28, 2007). 2. Inaccessible data may ordinarily be withheld from production. F.R.C.P. 26(b)(2)(B) and committee note. 4/14/2008 Page 8

9 3. Even inaccessible data may have to be produced where the requesting party can show good cause. In re Veeco Instruments, Inc., 2007 W.L (S.D. N.Y. April 2, 2007). E. Courts determine whether inaccessible data must be produced 1. Specificity of request 2. The quantity of the information at issue 3. When the data became inaccessible (data downgrading) 4. The importance of the information 5. The parties resources F. The cost shifting analysis 1. The court has near absolute discretion to determine which party bears the cost of producing inaccessible data 2. Factors include a. The extent to which the request is tailored b. The availability of the information from other sources c. The total cost of production d. The relative ability of each party to control costs e. The importance of the issues at stake f. The relative benefit In re Veeco, supra G. Responding to Electronic Discovery Requests 1. It is imperative that the company know in advance how it will respond to an electronic discovery request 2. Nyemaster Goode E-Discovery Group Checklist a. Ask the right people i. CIO, Directors, Managers, and Users b. Ask for the information right away i. Avoid legalese verses techie language 4/14/2008 Page 9

10 ii. Never simply give discovery requests to a techie and say respond. c. Ask for the right stuff i. Know what you are asking d. Ask for it everywhere i. Get to every system ii. iii. iv. LAN PCs PDAs v. Thumbdrives e. Classify as accessible or not H. Must Metadata be produced 1. Do not assume that metadata has to be produced. See Wyeth v. Impax Labs, No W.L (D. Del. Octo. 6, 2006); Kentucky Speedway, L.L.C. v. National Ass n of Stockcar Auto Racing, Inc., No , U.S. Dist. Lexis (E.D. Ky. Dec. 18, 2006). 2. Make them ask for it! I. The Rule 26 conference 1. It is imperative that your counsel know how to address electronic discovery issues in the discovery conference 2. The courts will simply not tolerate fools. See Malletier v. Dooney & Bourk, Inc., No. 04 Civ. 5316, 2006 W.L (S.D. N.Y. Dec. 22, 2006). J. Discovery Conference Checklist 1. Discovery Scope 2. Format and Form of Production 3. Cost Allocation 4. Privilege Waiver: Quick Peek or Claw Back 4/14/2008 Page 10

11 5. Preservation IX. Determining if Your Counsel Gets It A. Questions to ask yourself 1. Is there an e-discovery group or team 2. Has a response team been assembled a. H.R b. Compliance c. Forensic expert d. IT 3. Are initial preservation considerations addressed 4. Have key players been identified X. Conclusion 4/14/2008 Page 11

12 Glossary 1 Note: Most entries in this glossary were derived, with permission, from a glossary prepared by the Sedona Conference. That extensive glossary, often with fuller definitions than presented here, is updated periodically and is available for download at active data (active records): Information located in a computer system s memory or in storage media attached to the system (e.g., disk drives) that is readily available to the user, to the operating system, and to application software. (See storage medium.) archival data: Information that is intentionally maintained in long-term storage for business, legal, regulatory, or similar purposes, but not immediately accessible to a computer system s user. May be stored on removable media, such as CDs, tapes, or removable disk drives, or may be maintained on system disk drives. Typically stored in an organized way to help identify, access, or retrieve individual records or files. backup data (disaster recovery data): An exact copy of data that serves as a source for recovery in the event of a system problem or disaster. Generally stored separately from active data on, for example, tapes or removable disk drives, and often without indexes or other information and, as a result, in a form that makes it difficult to identify, access, or retrieve individual records or files. backup tape recycling: A process in which backup data tapes are overwritten with new backup data, usually on a fixed schedule determined jointly by records-management, legal, and information technology (IT) sources. computer forensics: The scientific examination and analysis of computerized data primarily for use as evidence. May include the secure collection of computer data; the examination of suspect data to determine details, such as origin and content; and the presentation of computer-based information to courts. May involve re-creating deleted, damaged, or missing files from disk drives; validating dates and authors/editors of documents; and certifying key elements of electronically stored information. data (electronic): Information stored on a computer, including numbers, text, and images. Computer programs (e.g., word processing software, spreadsheet software, presentation software) are used to process, edit, or present data. de-duplication: A process that searches for and deletes duplicate information. (See the glossary maintained by the Sedona Conference for a description of different types of deduplication: 1 Reprinted from Managing Discovery of Electronic Information: A Pocket Guide for Judges, FEDERAL JUDICIAL CENTER 2007, at /14/2008 Page 12

13 deleted data: Data that once existed on a computer as active data, but have been marked as deleted by computer programs or user activity. Deleted data may remain on the storage media in whole or in part until they are overwritten or wiped. Even after the data have been wiped, directory entries, pointers, or other information relating to the deleted data may remain on the computer. deletion: A process in which data are marked as deleted by computer programs or user activity and made inaccessible except through the use of special data-recovery tools. Deletion makes data inaccessible with normal application programs, but commonly leaves the data itself on the storage medium. There are different degrees of deletion. Soft deletions are data marked as deleted in the computer operating system (and not generally available to the end-user after such marking), but not yet physically removed from or overwritten on the storage medium. Soft-deleted data can often be restored in their entirety. This can be contrasted with wiping, a process that overwrites the deleted data with random digital characters, rendering it extremely difficult to recover, and degaussing, which rearranges the magnetic patterns on the medium, rendering it impossible to recover with all but the most sophisticated computer forensics tools. electronic discovery: The process of collecting, preparing, reviewing, and producing electronic documents in a variety of criminal and civil actions and proceedings. embedded data: Data that include commands that control or manipulate data, such as computational formulas in spreadsheets or formatting commands in a word processing document. Not visible when a document is printed or saved as an image format. (See metadata.) ESI: Electronically stored information. file format: The internal organization, characteristics, and structure of a file that determine the software programs with which it can optimally be used, viewed, or manipulated. The simplest file format is ASCII (American Standard Code for Information Interchange; pronounced ASK-ee ), a nonproprietary text format. Documents in ASCII consist of only text with no formatting or graphics and can be read by most computer systems using nonproprietary applications. Specific applications may define unique (and proprietary) formats for their data (e.g., WordPerfect document file format). Files with unique formats may only be viewed or printed by using their originating application or an application designed to work with compatible formats. These formats are also called the native format. Computer systems commonly identify files by a naming convention that denotes the native format (and therefore the probable originating application). For example, a WordPerfect document could be named document.wpd, where.wpd denotes a WordPerfect file format. Other common formats are.xls for Microsoft Excel spreadsheet files,.txt for ASCII text files,.ppt for Microsoft PowerPoint files,.jpg for photographs or other images, and.pdf for Adobe Acrobat documents. 4/14/2008 Page 13

14 form of production: The manner in which requested documents are produced. Used to refer to both file format and the media on which the documents are produced (paper vs. electronic). hash value: A unique numerical identifier that can be assigned to a file, a group of files, or a portion of a file, based on a standard mathematical algorithm applied to the characteristics of the data set. The most commonly used algorithms, known as MD5 and SHA, will generate numerical values so distinctive that the chance that any two data sets will have the same hash value, no matter how similar they appear, is less than one in one billion. Hashing is used to guarantee the authenticity of an original data set and can be used as a digital equivalent of the Bates stamp used in paper document production. image (verb): To image a hard drive is to make an identical copy of the hard drive at the lowest level of data storage. The image will include deleted data, residual data, and data found in hidden portions of the hard drive. Also known as creating a bitstream image or mirror image, or mirroring the drive. It is different than the process of making a logical copy or ghosting a hard drive, which normally copies only the active data found on the hard drive, and not the deleted data, residual data, and data found in hidden portions of the hard drive. legacy data: Information in which an organization may have invested significant resources to develop and which retains importance, but which was created and is stored with software and/or hardware that has become obsolete or replaced ( legacy systems ). May be costly to restore or reconstruct. metadata: Information about a particular data set or document which describes how, when, and by whom the data set or document was collected, created, accessed, or modified; its size; and how it is formatted. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden from users but are still available to the operating system or the program used to process the data set or document. (See embedded data and systems data.) nearline data storage: Storage in a system that is not physically part of the computer system or local network in daily use, but can be accessed through the network. Nearline data may be stored in a library of CDs, which can be automatically located and mounted for reading, or stored at a remote location accessible through an Internet connection. There is usually a small time lag between the request for data stored in nearline media and the data s availability to an application or end-user. Making nearline data available is an automated process (as opposed to offline data, which can only be made available by a person physically retrieving the data). offline storage: The storage of electronic records, often for long-term archival purposes, on removable media (e.g., CDs, removable disk drives) or magnetic tape that is not connected to a computer or network. Accessibility to off-line media usually requires 4/14/2008 Page 14

15 manual intervention and is much slower than online or nearline storage, depending on how and where the media are stored. PDF (portable document format): A file format developed by Adobe Systems Incorporated. Documents, once converted to this format, are readable outside of the application that created them. A PDF file captures document formatting information (e.g., margins, spacing, fonts) from the original application (e.g., WordPerfect) in such a way that the document can be viewed and printed as intended in the original application by the Adobe Reader program, which is available for most computer operating systems. Other programs (notably Adobe Acrobat) are required to edit or otherwise manipulate a PDF file. records management: The activities involved in handling information, generally for organizations that are large data producers. Records management includes maintaining, organizing, preserving, and destroying information, regardless of its form or the medium on which it is stored. residual data (ambient data): Data that are not active on a computer system and that are not visible without use of undelete or other special data-recovery techniques. May contain copies of deleted files, Internet files, and file fragments. restore: To transfer data from a backup or archival storage system (e.g., tapes) to an online system. Restoration of archival data may require not only data restoration but also replication of the original hardware and software operating environment. sampling: A process of selecting and searching a small part of a larger data source to test for the existence or frequency of relevant information, to assess whether the source contains privileged or protected information, and to assess the costs and burdens of identifying and producing requested information. search engine: A program that enables a search for keywords or phrases, such as on webpages throughout the World Wide Web. (See the glossary maintained by the Sedona Conference for a description of different types of searches: storage medium: The physical device containing ESI, including computer memory, disk drives (including removable disk drives), magneto-optical media, CDs, DVDs, memory sticks, and tapes. systems data: Information about a computer system that includes, for example, when people logged on and off a computer or network, the applications and passwords they used, and what websites they visited. 4/14/2008 Page 15

16 RESOURCES Resources on Data Retention and Electronic Discovery This provider of electronic discovery services also maintains an online Law Library with links to case summaries, papers on electronic discovery, and other secondary sources. The site also offers complimentary notification of significant electronic-discovery rulings, as well as a complimentary newsletter covering electronic-discovery topics in more depth. (Registration is required for both of these features.) Maintained by Ken Withers, a judicial research associate at the Federal Judicial Center, this site contains links to numerous resources on electronic discovery as well as annotated lists of cases discussing electronic discovery and data retention. The Library on Digital Discovery at the website of Harvard Law School s Berkman Center for Internet & Society digitaldiscovery/library.html. Though slightly outdated, this site contains numerous links on electronic discovery issues. The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production available at As noted above, the Sedona Principles are the product of The Sedona Conference, a nonprofit research institute that focuses on issues in complex litigation. Released earlier this year, the Principles provide fourteen suggestions for judges and litigants involved in electronic-discovery situations. Off the shelf regulatory research software. Library of templates and books. Templates and forms. Articles on Data Retention and Electronic Discovery Lisa M. Arent et al., Ediscovery: Preserving, Requesting & Producing Electronic Information, 19 SANTA CLARA COMPUTER & HIGH TECH. L.J. 131 (2002) Stephen C. Bennett & Thomas C. Miccum, Two Views from the Data Mountain, 36 CREIGHTON L. REV. 607 (2003) 4/14/2008 Page 16

17 Chad R. Brown, In-House Counsel Responsibilities in the Post-Enron Environment, ACCA DOCKET, May 2003, at 92 Barbara A. Caulfield et al., Electronic Discovery Issues for 2002: Requiring the Losing Party to Pay for the Costs of Digital Discovery, 2 SEDONA CONF. J. 181 (2001) Dale M. Cendali et al., Electronic Discovery, 755 PLI/PAT 615 (2003) Christopher R. Chase, To Shred or not To Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 FORDHAM J. CORP. FIN. L. 721 (2003) Christopher V. Cotton, Note, Document Retention Programs for Electronic Records: Applying a Reasonableness Standard to the Electronic Era, 24 J. CORP. L. 417 (1999) Mark J. Fucille et al., Timing is Everything: When Document Retention Policies and Related In-House Counsel Advice Intersect with Government Investigations and Litigation, ACCA DOCKET, May 2002, at 18 Jason Krause, Frequent Filers: It Takes a Policy, Computer Programs to Make Document Retention Work, A.B.A. J., Aug. 2003, at 52 Carl D. Liggio et al., After the Storm: A Post-Enron Look at Document Retention Policies, ACCA DOCKET, Sep. 2002, at 27 Virginia Llewellyn, Document Retention & Destruction Policies for Digital Data (n.d.), at DocumentRetention.pdf (last accessed August 27, 2003) Richard L. Marcus, Confronting the Future: Coping with Discovery of Electronic Material, LAW & CONTEMP. PROBS., Spring/Summer 2001, at 253 Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 up to the Task?, 41 B.C. L. REV. 327 (2000) Jonathan J. Soll, Managing Electronic Data Risks Through an Retention Policy, ACCA DOCKET, Apr. 2000, at 18 Thomas H. Watkins, Ethics: Are Lawyers the Last Line of Defense for Critical Accounting, Corporate Governance and Auditing Issues Under Sarbanes-Oxley?, 735 PLI/PAT 531 (2002) 4/14/2008 Page 17

18 Resources on the Use of Electronics in the Courtroom The ABA Legal Technology Resource Center website located at This site contains links and discussion concerning all aspects of technology in legal practice (e.g., links concerning the use of technology by smaller firms, links on developing firm websites), including a significant number of links to resources discussing the use of technology in the courtroom. See in particular courttech.html. Courtroom 21 website located at Sponsored by the William & Mary Law School and the National Center for State Courts, Courtroom 21 (located at the William & Mary Law School) is the world s most technologically advanced trial and appellate courtroom. The court s website contains several brief articles concerning technology and the courtroom; many of these can be found within the Research and Reference Area that one can access from the site s front page. Courtroom Information Project website located at This program, presented by Courtroom 21 (see above), lets litigants learn beforehand what sorts of technologies exist in participating courtrooms. One can search for state and federal courts; though useful, the amount of information on a particular court is limited to what that court has provided the site. DEANNE C. SIEMER ET AL., EFFECTIVE USE OF COURTROOM TECHNOLOGY: A LAWYER S GUIDE TO PRETRIAL AND TRIAL (2002). Published by the National Institute for Trial Advocacy (NITA), this book contains in-depth discussions of various technologies one might use in the courtroom. Though this book does not appear to be online, a related volume published by NITA DEANNE C. SIEMER ET AL., EFFECTIVE USE OF COURTROOM TECHNOLOGY: A JUDGE S GUIDE TO PRETRIAL AND TRIAL (2001) can be accessed online at public/pdf.nsf/lookup/cttech00.pdf/$file/cttech00.pdf. The National Center for State Courts information page on Courtroom Technology website located at topic1.asp?search_value=courtroom%20technology. The link to NCSC Documents on this page takes the reader to a list of documents concerning various aspects of technology in the courtroom. At WCDS/topiclist1.htm, one can scroll down to find similar lists on other topics concerning technology and the judiciary (topics include Case Management Systems, Electronic Filing, and Privacy and Public Access to Court Records ). 4/14/2008 Page 18

19 Articles Concerning the Use of Electronics in the Courtroom Karen D. Butera, Seeing Is Believing: A Practitioner s Guide to the Admissibility of Demonstrative Computer Evidence, 46 CLEV. ST. L. REV. 511 (1998) James E. Carbine & Lynn McLain, Proposed Model Rules Governing the Admissibility of Computer-Generated Evidence, 15 SANTA CLARA COMPUTER & HIGH TECH L.J. 1 (1999) Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 HARV. J.L. & TECH. 161 (2000) Michael E. Heintz, The Digital Divide and Courtroom Technology: Can David Keep Up With Goliath?, 54 FED. COMM. L.J. 567 (2002) Hon. John J. Hughes, One Judge s View on Electronic Information in the Courtroom, FED. LAW., Aug. 2002, at 41. Paul J. Johns, Technology-Augmented Advocacy: Raising the Trial Lawyer s Standard of Care; Changing Traditional Legal Education; and Creating New Judicial Responsibilities, 25 OHIO N.U. L. REV. 569 (1999) Frederic I. Lederer, The Effect of Courtroom Technologies on and in Appellate Proceedings and Courtrooms, 2 J. APP. PRAC. & PROCESS 251 (2000) Frederic I. Lederer, The Road to the Virtual Courtroom? A Consideration of Today s and Tomorrow s High-Technology Courtrooms, 50 S.C. L. REV. 799 (1999) Frederic I. Lederer, Some Thoughts on the Evidentiary Aspects of the Technologically Presented or Produced Evidence, 28 SW. U. L. REV. 389 (1999) Frederic I. Lederer, Technology Comes to the Courtroom, and, 43 EMORY L.J (1994) Julie K. Plowman, Multimedia in the Courtroom: Valuable Tool or Smoke and Mirrors, 15 REV. LITIG. 415 (1996). Lucille M. Ponte, The Michigan Cyber Court: A Bold Experiment in the Development of the First Public Virtual Courthouse, 4 N.C. J. L. & TECH. 51 (2002) Michael D. Roth, Laissez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth, 48 U.C.L.A. L. REV. 185 (2000). 4/14/2008 Page 19

20 Elan E. Weinreb, Counselor, Proceed With Caution : The Use of Integrated Evidence Presentation Systems and Computer-Generated Evidence in the Courtroom, 23 CARDOZO L. REV. 393 (2000) A special thank you to Matt Buckley, a 2003 summer associate at Nyemaster, for his assistance in the compilation of case law and other materials regarding electronic discovery for use in this speech. 4/14/2008 Page 20

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