ESI: Electronically Stored Information - Securing, Safeguarding, Submitting and Screwups (Spoliation)

Size: px
Start display at page:

Download "ESI: Electronically Stored Information - Securing, Safeguarding, Submitting and Screwups (Spoliation)"

Transcription

1 LSBA "Uncorked: A CLE Adventure in California 's Wine Country" ESI: Electronically Stored Information - Securing, Safeguarding, Submitting and Screwups (Spoliation) March 24, 2014 Sonoma, California Brooke Barnett Bernal The Long Law Firm Baton Rouge, LA Michael A. Patterson The Long Law Firm Baton Rouge, LA Edward J. Walters, Jr. Walters, Papillion, Thomas, Cullens Baton Rouge, LA

2 S. Brooke Barnett Ms. Barnett is a partner with the Long Law Firm and joined the firm in Her practice areas primarily include construction litigation, business litigation, professional liability, professional malpractice defense of accountants, architects and engineers and business transactions. Ms. Barnett-Bernal was born in Richmond, Virginia. Ms. Barnett-Bernal has also lived in Tulsa, Oklahoma and Natchitoches, Louisiana, where she attended high school. She moved to Baton Rouge to attend Louisiana State University, where she graduated summa cum laude with a Bachelor of Arts degree in 2003 and a Bachelor of Science degree in Ms. Barnett-Bernal double majored in Spanish and International Trade and Finance. Ms. Barnett-Bernal graduated in May 2007 from Louisiana State University s Paul M. Hebert Law Center, earning a Juris Doctorate degree and a Bachelor of Civil Law degree. Ms. Barnett is fluent in Spanish.

3 MICHAEL A. PATTERSON is a graduate of the LSU Law Center and is the senior litigation partner with Long Law Firm in Baton Rouge, Louisiana. He received the Certificate and LLM in Dispute Resolution from Pepperdine University. He is the managing member of The Patterson Resolution Group which provides mediation and arbitration services throughout the State of Louisiana in complex legal matters. He serves on the adjunct faculty of the LSU Law Center and, along with Ed Walters, teaches a course in trial advocacy and evidence. He is the author of many legal articles and is the chapter author of Louisiana Trial Procedure, Hearsay. He is a past president of the Louisiana State Bar Association and the Baton Rouge Bar Association. He is past Chairman of the Louisiana Supreme Court Committee on Bar Admissions. He received the LSU Law Center Distinguished Achievement Award in 2013.

4 Edward J. Walters, Jr., a partner in the Baton Rouge law firm of Walters, Papillion, Thomas, Cullens, received his B.S. from LSU in 1969 and his J.D. from the LSU Law Center in He has practiced in the Baton Rouge area for over 38 years representing plaintiffs in personal injury cases. He is Board Certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Trial Advocates and is a Fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers. He is an Adjunct professor of law at the LSU Law Center where he and Mike Patterson jointly teach a trial skills course entitled "Advanced Trial and Evidence Seminar." He is a frequent lecturer and writer on litigation, evidence, ethics and professionalism topics and has been the editor of the Baton Rouge Bar Association's monthly magazine Around the Bar for over 28 years.

5 TABLE OF CONTENTS PART I LEGAL FRAMEWORK 1 Duty to Preserve Evidence 4 What to Do When Notice is Received 5 Document Retention Policy 8 PART II SUBMITTING: GETTING IT IN AND KEEPING IT OUT 9 Back to Basics 9 Relevance and Unfair Prejudice 10 Authentication 11 Rule The Easy Way 14 Judicial Notice? 15 Isn't It Hearsay 15 Business Records 16 Original Writings Rule Authenticating 19 Web Pages 21 Two Cases Going Different Directions 21 Facebook Postings 24 My Space Postings 25 Back to Basics Again 26 PART III SCREWUPS (SPOILATION) 27 Introduction 27 Federal Law 27

6 The Courts Inherent Authority 28 Factors For Spoliation Sanctions 29 Level of Mental Culpability 31 Rule 37 of the Federal Rules of Civil Procedure 36 State Law 38 CONCLUSION 40 ATTACHMENT: A-Litigation Hold Policy B-Document Retention Policy

7 1. LEGAL FRAMEWORK. State Law. In Louisiana, a party may serve on another party requests to produce "designated documents or electronically stored information." La. Code of Civ. Proc. art 1461 "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought shall show that the information is not reasonably accessible because of undue burden or cost. If the showing is made the court may nonetheless order discovery from such sources if the requesting party shows good cause." La. Code Civ. Proc. art. 1462(B)(2) "If the request does not specify the form or forms for producing information, including electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. When electronically stored information is produced, the responding party shall identify the specific means for electronically accessing the information." La. Code Civ. Proc. art. 1462(C). Federal Law. Fed. R. Civ. P. 34 allows a party to request the production of any designated documents or electronically stored information. Fed. R. Civ. P. 34(a)(l)(A). A response may state an objection to the requested form for producing electronically stored information. If there is an objection to the requested form the party responding must state the form or forms it intends to use. Fed. R. Civ. P. 34(b)(2)(D) Documents including electronically stored information which are produced "must be produced as they are kept in the usual course of business or must be organized and labeled to correspond to the categories in the request." Fed R. Civ. P. 34(b)(2)(E)(i). "If a request does not 1

8 specify a form for producing electronically stored information a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms... A party need not produce the same electronically stored information in more than one form." Fed. R. Civ. P. 34(b)(2)(E)(ii-iii). Fed. R. Civ. P. 34 allows a requesting party to enter upon the property of the responding party to "...inspect, measure, survey, photograph, test or sample the property or any designated object or operation on it." Fed. R. Civ. P. 34(a)(2) In Louisiana, La. Code Civ. Proc. arts and 1462(E) provides that the responding party must be given the opportunity to produce the requested ESI from its computer. Fed. R. Civ. P. 26(b)(2)(B) specifically provides that a responding party does not need to produce ESI from sources that the "party identifies as not reasonably accessible because of undue burden or cost." Comment A to the 2007 amendment to La. CCP art state in part, "This authorization does not require a responding party to produce electronically stored information from sources that are shown not to be reasonably accessible because of undue burden or cost. When the responding party presents a valid objection to production on this basis the court may consider production under more convenient and less burdensome conditions and with an allocation of the cost of production between the parties." In La. Workers' Comp. Corp. v. Quality Exterior Serv., LLC, (La. App. 1st Cir. 5/2/12) 925 So.3d 1034, the Court had before it the issue of when the requesting party sought ESI relating to a specific insurance policy year to be produced in native format, LWCC objected to the production in the native format alleging that such production would be unduly burdensome. LWCC's objection was based upon its assertion that the steps necessary to provide the information in the form requested would require a review of the earliest backup data which was effective January 2005 which was located on a 2005 year end back up tape. It further 2

9 contended that it no longer possessed the necessary software and hardware to access the information contained on the 2005 year end back up tape. The Court of Appeal, in reversing the ruling of the trial court, ordered LWCC to produce the requested information finding the explanation for failure to produce not persuasive. A series of related opinions from the federal court in the Southern District of New York answered many of the questions on production of ESL In the first of these cases, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309(S.D.N.Y. 2003), a discovery dispute arose in a gender discrimination case when the plaintiff sought "[a]ll documents concerning any communication by or between UBS employees concerning plaintiff." Id. at 312 (quoting Plaintiff s First Request for Production of Documents). The term document included electronic or computerized data compilations. Apparently the employer had never searched responsive s on any of its back-up tapes. The employer stated that the cost of producing s on backups would be prohibitive. The Court stated Fed. R. Civ. P. 26(b)(2) imposes a "proportionality test" on the scope of discovery. The court observed that the presumption under the federal rule is that the responding party must bear the expense of complying with the request, but that a party may request the court to issue a protective order, protecting it from undue burden or expense. The court noted the solution to this dilemma of cost associated with retrieving information is to consider "cost shifting," that is to force the requesting party rather than the answering party to bear the cost of discovery. The court cites to the case of Rowe Entm 't v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y 2002), favorably commenting on the eight (8) factors to be used to determine whether discovery costs should be shifted. The eight (8) factors cited are: 1. The specificity of the discovery request; 2. The likelihood of discovery of critical information; 3

10 3. The availability of such information from other sources; 4. The purposes for which the responding party maintains the requested data; 5. The relative benefits to the parties of obtaining the information; 6. The total cost associated with production; 7. The relative ability of each party to control costs and its incentive to do so; 8. The resources available to each party. The court noted that "cost shifting"... should be considered only when electronic discovery imposes an undue- burden or expense on the responding party." The court proceeded to modify the Rowe test, finding it to be incomplete. The court developed a new seven (7) test factor based on the modification to Rowe. The seven (7) factors adopted were: 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production compared to the amount in controversy; 4. The total cost of production compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; 7. The relative benefits to the party of obtaining information. The next case in the series Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280( 2003), the court applied its modified Rowe formula and determined that the shifting of one-fourth of the estimated $166,000 necessary to restore and search the back up tapes was appropriate. 2. THE DUTY TO PRESERVE EVIDENCE "The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. If a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." Silvestri v. Gen. Motors Corp., 271 F.3d 583,591(4 1 Cir. 2001) (citing Kronish v. U.S., 150F.3d 112, 126 (2 d Cir. 1998)). h 4

11 Silvestri was involved in a car accident where an air bag did not deploy during the accident. Silvestri and his attorney failed to preserve the vehicle which was subsequently repaired and sold by the owner's insurer. The court found that the failure to preserve warranted that the manufacturer, General Motors which was prejudiced to the point where the only appropriate sanction was dismissal of the claim. Two questions must be asked when considering the duty to preserve. When does the duty begin and what evidence must be preserved? The American Bar Association's Civil Discovery Standard, Standard No. 10, "Preservation of Documents" states in part, "When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced the lawyer should inform the client of its duty to preserve potential and relevant documents and of the possible consequences for failure to do so." The question is really no longer whether there is a duty to preserve electronically stored information, the real question is what is the scope of this duty? In Zubulake, the court stated, "[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible back-up tapes, (e.g. those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if back-up tapes are accessible (i.e. actively used for information retrieval), then such tapes would likely be subject to the litigation hold." 220 F.R.D. 212,219 The American Law Institute's Restatement of the Law Governing Lawyers, 118, "Falsifying or Destroying Evidence" states, "[a] lawyer may not destroy or obstruct another 5

12 party's access to documentary or other evidence when doing so would violate a court order or other legal requirements, or counsel or assist a client to do so." 2 The Restatement goes on to add "[i]t is presumptively lawful to act pursuant to an established document retention destruction program that conforms to existing law and is consistently followed, absent a supervening obligation such as a subpoena or other lawful demand for or order relating to the material." Id.at comment c. "Counsel and client must act to preserve evidence as soon as they are on notice of its relevance to current or future litigation." Michael C. Miller & Jeffrey M. Theodore, Keeping The Nightmares At Bay, 40 Litigation 14, (2013). 3. WHAT TO DO WHEN NOTICE IS RECEIVED? A party has to preserve evidence when it has "notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to future litigation" 3 The events which can constitute a trigger to institute the obligation of preservation and a legal hold may start with a discussion with key employees to hold on to specific files and data until it is determine that further action is necessary. Be alert to what documents may be in line for routine document destruction. The Sedona Conference produced a commentary on legal holds which included four (4) guidelines which are produced below: Guideline 1 A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation. Guideline 2 Adopting and consistently following a policy or practice governing an organization's preservation obligation is one factor that may demonstrate reasonableness and good faith. 2 American Law Institute, RESTATEMENT (THIRD) OF THE LAW: THE LAW GOVERNING LAWYERS 118(2)(2000). 3 Eckhardt v. Bank of America, N.A., No. 3:06CV512-H, 2008, WL , at *S(W.D.N.C. May 6, 2008) 6

13 Guideline 3 Adopting a process for reporting information relating to a probable threat of litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith. Guideline 4 Determining whether litigation is or should be reasonably anticipated should be based on a good faith and reasonable evaluation of relevant facts and circumstances. Sedona identifies a series of factors pertinent to the issue of whether litigation should be reasonably anticipated. They include: The nature and specificity of the complaint or threat; The party making the claim; The position of the party making the claim; The business relationship between the accused and the accusing party; Whether the threat is direct, implied or inferred; Whether the party making the claim is known to be aggressive or litigious; Whether a party who could assert a claim is aware of the claim; The strength, scope and value of a potential claim; The likelihood that data relating to a claim will be lost or destroyed; The significance of the data to the known or reasonably anticipated issues; Whether the company has learned of similar claims; The experience of the industry; Whether the relevant records are being retained for some other reason; and Press and/or industry coverage of the issue directly pertaining to the client, or of complaints brought against someone similarly situated in the industry. Sedona Conference Commentary on Legal Holds: The Trigger & The Process, 201O(Excerpts) Once the decision is made that a preservation obligation exists the next question is what to preserve and how to preserve it. Here is a checklist for a legal hold policy: 1. Notification should be issued in written form; 2. Issue the notification in a timely manner; 3. Identify and focus on key players; 4. Obtain affirmative custodial responses and continue to monitor compliance; 5. Include clear direct instructions for compliance to custodians; 6. Periodically reissue hold so that the obligation is fresh in employee's minds; 7. Counsel must supervise the employees preservation efforts and compliance; 8. Suspending automatic deletion and preserving back up media should be undertaken when warranted as part of the overall mix of preservation steps. Legal Hold and Data Preservation Best Practices, Implementing and Managing the Legal Hold, December

14 Monitor progress and establish a process which is re-evaluated as the dispute evolves. Determine when the dispute is over. Once the dispute is terminated, normal destruction procedures can be re-implemented. The hold needs to allow clients and employees to clearly determine what documents they need to preserve. The lawyer's job is not simply to issue a litigation hold, but to take affirmative steps to monitor and ensure compliance. It is recommended that counsel speak with key employees that are most likely to have relevant information. If necessary, it is a good practice to obtain signed acknowledgements from key employees of their obligation to preserve documents. (See attached Sample) 4. DOCUMENT RETENTION POLICY Document retention policies have been around forever but its been noted in recent studies "3...that 93% of all documents" originate in an electronic format. Andrew R. Lee, "Keep or Toss? Document Retention Policies in the Digital Era, 55 La. Bar Journal 240 (2007). The fact that many electronically stored and created documents never make it to hard copies presents businesses with serious questions of how long should you retain and store the material. Should you store it indefinitely with its' attendant costs or destroy and risk a claim of spoliation. "A records management program establishes a system whereby the company deliberately designates the records that it will maintain, the period of time for maintenance of such records, and the procedure for their destruction. The goals of such a program are to retain only those documents that are necessary to comply with the law and that benefit the company (and for only that long) and to maintain securely the materials that must be kept for legitimate reasons." Id at 242. In accordance with that, an effective program should accomplish the following: 1. Identify those documents that must be maintained in accordance with the law; 2. Identify those documents that the business must keep to effectively function; 8

15 3. Track the company's maintenance efforts; 4. Create a schedule for the systematic destruction of records in accordance with the above guidelines; 5. Effectively destroy the documents that are scheduled for elimination under the program; 6. Monitor and audit the company's execution of the program. See attached Sample Document Retention Policy. Submitting: Getting It In and Keeping It Out As we are all aware, the rules of evidence were written for a time when we only dealt with paper documents and tangible things. Those days are long-gone, but, since the rules have not changed, how do we get our electronically stored information (ESI) into evidence? How do we keep theirs out? Back to Basics When it comes to determining what foundation is necessary to admit electronic evidence, we should first go back to basics: Is it relevant? Is it what it purports to be? Is it hearsay? Is there an exception? Does it violate the original writings rule? Does its prejudicial effect outweigh its probative value? Questions concerning ESI' s relevancy and unfair prejudice are much the same as in other types of evidence, but issues concerning authenticity, the original writings rule and hearsay are the most problematic. Much of our discussion will be based on the Federal Rules of Evidence, which, as we all know, are extremely similar to the Louisiana Code of Evidence. Where meaningful differences arise between the Federal Rules and the Louisiana Code of Evidence, those differences will be pointed out. 9

16 The Federal Rules of Civil Procedure were amended in 2006 to accommodate the discovery of electronically stored information (ESI). The rule amendments reflected the reality that the evidence in virtually every piece of civil litigation now involves some information stored in electronic form. In response to the new discovery rules, practitioners learned how to use the new discovery rules. What was largely neglected, however, was an equally important question: once you've gone to the trouble and expense of obtaining that extremely damaging , web page, Facebook posting, Myspace posting, instant message, text message, or blog post, how do you get it into evidence at trial or in response to a summary judgment motion? There are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence: Relevance (Fed. R. Evid. 401) Authenticity (Fed. R. Evid. 901 and 902) Hearsay (Fed. R. Evid. 801, 803, 804, 807) Original Writing, a.k.a. Best Evidence Rule (Fed. R. Evid ) Unfair Prejudice (Fed. R. Evid. 403) Relevance and Unfair Prejudice Let's start with the easy ones. A determination of relevance or unfair prejudice of ESI is no different than that determination when analyzing other types of evidence. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid

17 The court may also exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid 403 Authentication In order to properly authenticate a document the lawyer must provide evidence sufficient to support a finding that the information in question is in fact what its proponent claims it to be. Fed. R. Evid 901 Seems simple enough, doesn't it? Just prove it is what you say it is. While there is a paucity of Louisiana jurisprudence on this issue, and not much more elsewhere, there is one leading repeatedly-cited 100 page exegesis from Maryland. In Lorraine v. Markel Ins. Co, 241 F. R. D. 534 (D. Md. 2007) the court was faced with divining what steps are necessary to introduce copies of correspondence. The beginning paragraph of the judge's discussion of the admissibility of ESI sets the framework: Be careful what you ask for, the saying goes, because you might actually get it. For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information ("ESI"). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes "such facts as would be admissible in evidence" for use in summary judgment practice. FED. R.CIV.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary "flavors," including , website ESI, internet postings, digital photographs, and computergenerated documents and data files. 1 1

18 The big issue with ESI is usually its authenticity. Fed.R Evid. 901(a) defines authenticity: "the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, a party seeking to admit an exhibit need only make a prima fade showing that it is what he or she claims it to be. The Manual for Complex Litigation highlights some of the unique concerns about the accuracy and authenticity of ESI: Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions. The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling. The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy. The judge should therefore consider the accuracy and reliability of computerized evidence, including any necessary discovery during pretrial proceedings, so that challenges to the evidence are not made for the first time at trial. Manual for Complex Litigation (4th ed. 2000) The extent of the showing necessary to authenticate a piece of electronic evidence will depend on the nature of the evidence and its evidentiary purpose. It appears that the courts are not calling out for "new" rules to handle ESI, but are using the existing rules but with more scrutiny when dealing with ESL In In Re Vee Vinhnee, 336 B.R. 437 (B. A. P. 9th Cir. 2005) the court addressed the authentication of ESI and stated, "Authenticating a paperless electronic record, in principle, poses the same issue as for a paper record, the only difference being the format in which the record is maintained.... The paperless electronic record involves a difference in the format of 1 2

19 the record that presents more complicated variations on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be." Rule 901(a) addresses the requirement to authenticate ESI, but Rule 902(b) attempts to set forth a non-exclusive list of examples of HOW to fulfill that requirement. The pertinent subparagraphs follow: (1) Testimony of witness with knowledge. A witness could testify that he recognizes a copy of an that he drafted or received. An authenticating witness need not have personal knowledge of the particular exhibit if he can attest to "the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change." Lorraine, 241 F.R.D. at 545 (3) Comparison by trier of fact or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. If one has been properly authenticated, a second could be authenticated through comparison with the first. See U S. v. Sa/avian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006). (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Using circumstantial evidence, for example, the presence of a party's name and address could establish the authenticity of an . Some documents contain "metadata," such as a file's name, location, format, size, creator, time and date created, and modification history which could be a "signature" identifying the document and its creator. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Custody may be established by a certificate of authenticity from the public office or through the testimony of the custodian or other witness with knowledge that the evidence is from a public office authorized by law to keep such records. Lorraine, 241 F.RD. at 548. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. A witness may explain the operation of the computer system or process as well the protocols for maintenance and testing to ensure reliability. Rule

20 In addition to the non-exclusive methods of authentication identified in Rule 901(b), Rule 902 identifies twelve methods by which documents, including electronic ones, may be authenticated without extrinsic evidence. 902 states that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following (only pertinent subheadings are included): (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control. (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C). Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record -and must make the record and certification available for inspection -so that the party has a fair opportunity to challenge them. The Easy Way The Federal Rules of Civil Procedure provide three ways to authenticate electronic evidence before trial. A party may use requests for admission to authenticate ESI in the discovery process. Fed. R. Civ. P. 36 (a)(l )(B). At a pre-trial conference, a party may propose stipulations about the authenticity of ESL Fed. R. Civ. P. 16(c)(2)(C). Finally, once a party makes its pre-trial disclosures under Fed. R. Civ. P. 26(a)(3) identifying each exhibit, the opposing party has fourteen days to serve and file objections to the admissibility of any exhibit. Most evidentiary objections not timely made are waived. These methods provide an opportunity to foreclose all of these authenticity objections, but this approach requires some anticipation and advanced planning. Judicial Notice? 1 4

Discovery Services WHITE PAPER. Lorraine v. Markel: Electronic Evidence 101

Discovery Services WHITE PAPER. Lorraine v. Markel: Electronic Evidence 101 Common Types of Electronically Stored Information Email: Rules 901(b)(1) (person with personal knowledge); 901(b)(3) (expert testimony or comparison with authenticated example); 901(b)(4) (distinctive

More information

Getting It In: The Admissibility of Electronically Stored Information in Employment Litigation

Getting It In: The Admissibility of Electronically Stored Information in Employment Litigation Getting It In: The Admissibility of Electronically Stored Information in Employment Litigation Jocelyn D. Larkin Director of Litigation and Training Impact Fund 125 University Avenue, Suite 102 Berkeley,

More information

When E-Discovery Becomes Evidence

When E-Discovery Becomes Evidence Monday, June 11, 2007 When E-Discovery Becomes Evidence Make sure that you can easily authenticate the information that was so costly to produce By Leonard Deutchman Special to the Law Weekly A federal

More information

DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP

DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP Presented by Frank H. Gassler, Esq. Written by Jeffrey M. James, Esq. Over the last few years,

More information

IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682. Pretrial Conferences; Scheduling; Management.

IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682. Pretrial Conferences; Scheduling; Management. IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682 Amending Civil Rules 16, 26, 33, 34, 37, and 45 concerning Discovery of Electronic Information IT IS ORDERED: 1. Civil Rule 16 is amended to read

More information

Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys

Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys By Ronald S. Allen, Esq. As technology has evolved, the federal courts have

More information

UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE. 99 Park Avenue, 16 th Floor New York, New York 10016 www.devoredemarco.com

UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE. 99 Park Avenue, 16 th Floor New York, New York 10016 www.devoredemarco.com UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE 1 What is ESI? Information that exists in a medium that can only be read through the use of computers Examples E-mail Word Documents Databases Spreadsheets Multimedia

More information

A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE

A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE Effective February 1, 2010, the Alabama Rules of Civil Procedure were amended to provide for and accommodate

More information

Social Media: Cutting Edge Evidence Questions. Presented by: Lawrence Morales II The Morales Firm, P.C. San Antonio, Texas

Social Media: Cutting Edge Evidence Questions. Presented by: Lawrence Morales II The Morales Firm, P.C. San Antonio, Texas Social Media: Cutting Edge Evidence Questions Presented by: Lawrence Morales II The Morales Firm, P.C. San Antonio, Texas The Three Commandments of Social Media Evidence #1: Thou Shalt Not Underestimate

More information

A Brief Overview of ediscovery in California

A Brief Overview of ediscovery in California What is ediscovery? Electronic discovery ( ediscovery ) is discovery of electronic information in litigation. ediscovery in California is governed generally by the Civil Discovery Act. In 2009, the California

More information

The Legal EHR: Beyond Definition

The Legal EHR: Beyond Definition The Legal EHR: Beyond Definition Barry S. Herrin, JD, FACHE Smith Moore Leatherwood LLP 1 Overview Definitions Federal Rules of Evidence vs. HIPAA Security Rule vs. Medicare Conditions of Participation

More information

Friday 31st October, 2008.

Friday 31st October, 2008. Friday 31st October, 2008. It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective January 1, 2009. Amend Rules

More information

PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES

PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES What follows are some general, suggested guidelines for addressing different areas

More information

COMMENTS OF NATIONAL ASSOCIATION OF CRIMINAL DEFENSE. LAWYERS on proposed stylistic changes to Federal Rules of.evidence Rule 401

COMMENTS OF NATIONAL ASSOCIATION OF CRIMINAL DEFENSE. LAWYERS on proposed stylistic changes to Federal Rules of.evidence Rule 401 09-EV-01 9 COMMENTS OF NATIONAL ASSOCIATION OF CRIMINAL DEFENSE. LAWYERS on proposed stylistic changes to Federal Rules of.evidence Rule 401 ARTICLE IV. RELEVANCY AND ITS ARTICLE IV. RELEVANCY AND LIMITS

More information

Cyber Tech & E-Commerce

Cyber Tech & E-Commerce MEALEY S LITIGATION REPORT Cyber Tech & E-Commerce The Duty To Preserve Data Stored Temporarily In Ram: Is The Sky Really Falling? by J. Alexander Lawrence Morrison & Foerster New York, New York A commentary

More information

Assembly Bill No. 5 CHAPTER 5

Assembly Bill No. 5 CHAPTER 5 Assembly Bill No. 5 CHAPTER 5 An act to amend Sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280,

More information

RULE 1. ASSIGNMENT OF CASES

RULE 1. ASSIGNMENT OF CASES LOCAL RULES FOR FOURTH CIRCUIT COURT DISTRICT OF MISSISSIPPI [Renumbered and codified by order of the Supreme Court effective May 18, 2006; amended effective April 23, 2009.] RULE 1. ASSIGNMENT OF CASES

More information

Electronic Discovery: Litigation Holds, Data Preservation and Production

Electronic Discovery: Litigation Holds, Data Preservation and Production Electronic Discovery: Litigation Holds, Data Preservation and Production April 27, 2010 Daniel Munsch, Assistant General Counsel John Lerchey, Coordinator for Incident Response 0 E-Discovery Rules Federal

More information

COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT (994-001) Fall 2014

COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT (994-001) Fall 2014 COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT (994-001) Professors:Mark Austrian Christopher Racich Fall 2014 Introduction The ubiquitous use of computers, the

More information

Supreme Court Rule 201. General Discovery Provisions. (a) Discovery Methods.

Supreme Court Rule 201. General Discovery Provisions. (a) Discovery Methods. Supreme Court Rule 201. General Discovery Provisions (a) Discovery Methods. Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination

More information

E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK

E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK If your company is involved in civil litigation, the Federal Rules of Civil Procedure regarding preservation and production of electronic documents

More information

In-House Solutions to the E-Discovery Conundrum

In-House Solutions to the E-Discovery Conundrum 125 In-House Solutions to the E-Discovery Conundrum Retta A. Miller Carl C. Butzer Jackson Walker L.L.P. April 21, 2007 www.pointmm.com I. OVERVIEW OF THE RULES GOVERNING ELECTRONICALLY- STORED INFORMATION

More information

Case 3:09-cv-00432-HEH Document 77 Filed 02/19/2010 Page 1 of 7

Case 3:09-cv-00432-HEH Document 77 Filed 02/19/2010 Page 1 of 7 Case 3:09-cv-00432-HEH Document 77 Filed 02/19/2010 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY, Plaintiff,

More information

E-discovery that is, the discovery of electronically

E-discovery that is, the discovery of electronically E-Discovery Without Admissibility Is Useless: Lorraine v. Markel and Authentication By Jeffrey D. Bukowski E-discovery that is, the discovery of electronically stored information has garnered much attention

More information

Rule 26. General Provisions Governing Discovery.

Rule 26. General Provisions Governing Discovery. Published on Arkansas Judiciary (https://courts.arkansas.gov) Rule 26. General Provisions Governing Discovery. (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:

More information

Case4:12-cv-03288-KAW Document2-1 Filed06/25/12 Page1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION

Case4:12-cv-03288-KAW Document2-1 Filed06/25/12 Page1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION Case4:12-cv-03288-KAW Document2-1 Filed06/25/12 Page1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION STANDING ORDER FOR MAGISTRATE JUDGE KANDIS A. WESTMORE (Revised

More information

Spoliation of Evidence. Prepared for:

Spoliation of Evidence. Prepared for: Spoliation of Evidence Prepared for: Spoliation Nationwide anti-spoliation trend Cases can be thrown out of court Insurers can be denied subrogation claims An insured who destroys evidence of a claim can

More information

BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY

BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY I. Background The Federal Rules of Civil Procedure provide for document production in the discovery process. Until recently, all types of documents

More information

INTERNET ISSUES: PROTECTING TRADE SECRETS NEW E-DISCOVERY RULES. William R. Denny Potter Anderson & Corroon LLP September 26, 2006

INTERNET ISSUES: PROTECTING TRADE SECRETS NEW E-DISCOVERY RULES. William R. Denny Potter Anderson & Corroon LLP September 26, 2006 INTERNET ISSUES: PROTECTING TRADE SECRETS NEW E-DISCOVERY RULES William R. Denny Potter Anderson & Corroon LLP September 26, 2006 Agenda What is a Trade Secret? Tracking Down the Anonymous Blogger Strategies

More information

Case 5:14-cv-00093-RS-GRJ Document 21 Filed 05/28/14 Page 1 of 9

Case 5:14-cv-00093-RS-GRJ Document 21 Filed 05/28/14 Page 1 of 9 Case 5:14-cv-00093-RS-GRJ Document 21 Filed 05/28/14 Page 1 of 9 MARY SOWELL et al., Plaintiffs, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION Page 1 of

More information

The Indiana Coalition Against Domestic Violence

The Indiana Coalition Against Domestic Violence Evidentiary Issues in Domestic Cases: An Overview Introduction A. Importance of legal representation in cases that involve domestic violence. B. History of protection order laws and implications for evidence.

More information

Best Practices in Electronic Record Retention

Best Practices in Electronic Record Retention A. Principles For Document Management Policies Arthur Anderson, LLD v. U.S., 544 U.S. 696 (2005) ( Document retention policies, which are created in part to keep certain information from getting into the

More information

What Happens When Litigation Starts? How Do You Get People Not To Generate the Bad Documents?

What Happens When Litigation Starts? How Do You Get People Not To Generate the Bad Documents? Document Retention and Destruction in Oregon What Happens When Litigation Starts? How Do You Get People Not To Generate the Bad Documents? Timothy W. Snider (503) 294-9557 twsnider@stoel.com Stoel Rives

More information

PART III Discovery. Overview of the Discovery Process CHAPTER 8 KEY POINTS THE NATURE OF DISCOVERY. Information is obtainable by one or more discovery

PART III Discovery. Overview of the Discovery Process CHAPTER 8 KEY POINTS THE NATURE OF DISCOVERY. Information is obtainable by one or more discovery PART III Discovery CHAPTER 8 Overview of the Discovery Process Generally, discovery is conducted freely by the parties without court intervention. Disclosure can be obtained through depositions, interrogatories,

More information

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Case 1:13-cv-00046-CCE-LPA Document 24 Filed 01/06/14 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) Plaintiff,

More information

Legal Arguments & Response Strategies for E-Discovery

Legal Arguments & Response Strategies for E-Discovery Legal Arguments & Response Strategies for E-Discovery The tools to craft strategic discovery requests & mitigate the risks and burdens of production. Discussion Outline Part I Strategies for Requesting

More information

Case 1:13-cv-00586-AWI-SAB Document 41 Filed 02/20/14 Page 1 of 13

Case 1:13-cv-00586-AWI-SAB Document 41 Filed 02/20/14 Page 1 of 13 Case :-cv-00-awi-sab Document Filed 0// Page of 0 DALE L. ALLEN, JR., SBN KEVIN P. ALLEN, SBN 0 ALLEN, GLAESSNER & WERTH, LLP 0 Montgomery Street, Suite 0 San Francisco, California 0 Telephone: () -00

More information

Legal view of digital evidence

Legal view of digital evidence Chapter 2 Legal view of digital evidence Before developing a model or a theory, it is important to understand the requirements of the domain in which the model or the theory is going to be used. The ultimate

More information

ACADEMIC AFFAIRS COUNCIL ******************************************************************************

ACADEMIC AFFAIRS COUNCIL ****************************************************************************** ACADEMIC AFFAIRS COUNCIL AGENDA ITEM: 8.D DATE: March 15, 2007 ****************************************************************************** SUBJECT: Electronic Records Discovery Electronic records management

More information

Admissibility of Writings (Emails, Text Messages, etc.) **************

Admissibility of Writings (Emails, Text Messages, etc.) ************** Admissibility of Writings (Emails, Text Messages, etc.) ************** John Rubin UNC School of Government Rev d May 19, 2011 Admissibility of Electronic Writings: Some Questions and Answers* The defendant

More information

Any civil action exempt from arbitration by action of a presiding judge under ORS 36.405.

Any civil action exempt from arbitration by action of a presiding judge under ORS 36.405. CHAPTER 13 Arbitration 13.010 APPLICATION OF CHAPTER (1) This UTCR chapter applies to arbitration under ORS 36.400 to 36.425 and Acts amendatory thereof but, except as therein provided, does not apply

More information

Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS CARGILL MEAT SOLUTIONS CORPORATION, v. Plaintiff, PREMIUM BEEF FEEDERS,

More information

Data Preservation Duties and Protocols

Data Preservation Duties and Protocols Data Preservation Duties and Protocols November 2008 HOU:2858612.3 Discussion Outline I. The Differences Between Electronic and Paper Discovery II. The Parameters of Electronic Discovery III. Rule 37(e)

More information

Confrontation in Domestic Violence Litigation: What Every New Attorney Should Know about the Necessity of Victim Participation

Confrontation in Domestic Violence Litigation: What Every New Attorney Should Know about the Necessity of Victim Participation Confrontation in Domestic Violence Litigation: What Every New Attorney Should Know about the Necessity of Victim Participation By: Michael D. Dean i Those experienced in domestic violence litigation are

More information

United States Court of Appeals

United States Court of Appeals In the United States Court of Appeals For the Seventh Circuit No. 15-1328 NEAL D. SECREASE, JR., v. Plaintiff-Appellant, THE WESTERN & SOUTHERN LIFE INSURANCE COMPANY, et al., Defendants-Appellees. Appeal

More information

Amendments to Federal Rules of Civil Procedure. electronically stored information. 6 Differences from Paper Documents

Amendments to Federal Rules of Civil Procedure. electronically stored information. 6 Differences from Paper Documents Amendments to Federal Rules of Civil Procedure Electronic Discovery effective Dec. 1, 2006 Copyright David A. Devine GROH EGGERS, LLC Rules amended: 16, 26, 33, 34, 37 & 45 Sources of information: Rules

More information

Case 2:06-cv-03669-DRH-ETB Document 26 Filed 11/30/2006 Page 1 of 9 CV 06-3669 (DRH) (ETB)

Case 2:06-cv-03669-DRH-ETB Document 26 Filed 11/30/2006 Page 1 of 9 CV 06-3669 (DRH) (ETB) Case 2:06-cv-03669-DRH-ETB Document 26 Filed 11/30/2006 Page 1 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X

More information

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver. (a) Scope of waiver. In federal proceedings, the waiver by

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver. (a) Scope of waiver. In federal proceedings, the waiver by Advisory Committee on Evidence Rules Proposed Amendment: Rule 502 Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (a) Scope of waiver. In federal proceedings, the waiver by

More information

Discovery Ethics Course Plan

Discovery Ethics Course Plan The Ethics of Pre-Trial Discovery Discovery Ethics Course Plan I. Pre-Trial Discovery II. General Ethical Rules and Personal Mores Governing Discovery III. Ethical Considerations for Obtaining Informal

More information

Handling Costly E-Discovery Demands in Smaller Cases

Handling Costly E-Discovery Demands in Smaller Cases Chapter 9 Handling Costly E-Discovery Demands in Smaller Cases Neal Walters Neal Walters is of counsel with the firm of Ballard Spahr Andrews & Ingersoll, LLP in its Voorhees, New Jersey office. Mr. Walters

More information

LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES

LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES INSERT YOUR NAME HERE Place logo or logotype here, Otherwise delete this text box. AGENDA.. Federal Rules of Civil Procedure What is a legal hold? What are

More information

Electronic Discovery

Electronic Discovery Electronic Discovery L. Amy Blum, Esq. UCLA University of California, Los Angeles 1 Topics Not Covered Best practices for E-mail E use and retention in the ordinary course of business Records Disposition

More information

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Document Page 1 of 8 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE: MICHAEL TODD CHRISLEY, Chapter 7 Case No. 13-56132-MGD Debtor. JASON L. PETTIE, CHAPTER 7 TRUSTEE

More information

AN ACT IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

AN ACT IN THE COUNCIL OF THE DISTRICT OF COLUMBIA AN ACT IN THE COUNCIL OF THE DISTRICT OF COLUMBIA To amend the District of Columbia Procurement Practices Act of 1985 to make the District s false claims act consistent with federal law and thereby qualify

More information

E-DISCOVERY IN THE US

E-DISCOVERY IN THE US E-DISCOVERY IN THE US A PRIMER Changing legal requirements and growing volumes of electronically stored information have made the discovery process more daunting and costly than ever before. This article

More information

E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers

E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers MARCH 7, 2007 E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers By Tara Daub and Christopher Gegwich News of the recent amendments to the Federal Rules of Civil Procedure

More information

FEDERAL PRACTICE. In some jurisdictions, understanding the December 1, 2006 Amendments to the Federal Rules of Civil Procedure is only the first step.

FEDERAL PRACTICE. In some jurisdictions, understanding the December 1, 2006 Amendments to the Federal Rules of Civil Procedure is only the first step. A BNA, INC. DIGITAL DISCOVERY & E-EVIDENCE! VOL. 7, NO. 11 232-235 REPORT NOVEMBER 1, 2007 Reproduced with permission from Digital Discovery & e-evidence, Vol. 7, No. 11, 11/01/2007, pp. 232-235. Copyright

More information

What to Do When Your Witness Testimony Doesn t Match His or Her Declaration

What to Do When Your Witness Testimony Doesn t Match His or Her Declaration What to Do When Your Witness Testimony Doesn t Match His or Her Declaration Russell R. Yurk Jennings, Haug & Cunningham, L.L.P. 2800 N. Central Avenue, Suite 1800 Phoenix, AZ 85004-1049 (602) 234-7819

More information

General Items Of Thought

General Items Of Thought ESI PROTOCOLS & CASE LONG BUDGETS General Items Of Thought What s a GB =??? What Are Sources Of Stored Data? What s BYOD mean??? The Human Factor Is At Play! Litigation Hold Duty Arises When? Zubulake

More information

Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation

Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation On January 1, 2012, new rules approved by the Colorado Supreme Court entitled the Civil Access Pilot Project ( CAPP

More information

Ethics and ediscovery

Ethics and ediscovery Ethics and ediscovery John Mansfield and Devon Newman January 6, 2012 1 2013, MansfieldLaw ediscovery basics We will cover: Preservation and spoliation Searching and producing documents Supervising lawyers

More information

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA v. CRIMINAL ACTION H-00-0000 DEFENDANT(S) JURY INSTRUCTIONS I. General A. Introduction Members of the Jury:

More information

Use of Check Images By Customers of Financial Institutions. Version Dated: July 14, 2006

Use of Check Images By Customers of Financial Institutions. Version Dated: July 14, 2006 Use of Check Images By Customers of Financial Institutions Version Dated: July 14, 2006 This document provides an overview of the treatment of check images under the Check 21 Act and laws and regulations

More information

Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY

Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY 2016 CLM Annual Conference April 6-8, 2016 Orlando, FL Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY Understanding e-discovery definitions and concepts is critical to working with vendors,

More information

REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY

REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY Steven M. Gruskin Carl J. Pellegrini Sughrue Mion, PLLC 2100 Pennsylvania Ave. NW Washington, DC 20037 www.sughrue.com On December 1, 2006, the Federal

More information

Please note that this Act can also be viewed online on the Illinois General Assembly website at www.ilga.gov.

Please note that this Act can also be viewed online on the Illinois General Assembly website at www.ilga.gov. Please note that this Act can also be viewed online on the Illinois General Assembly website at www.ilga.gov. SCHOOLS (105 ILCS 10/) Illinois School Student Records Act. (105 ILCS 10/1) (from Ch. 122,

More information

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. v. MEAD JOHNSON & COMPANY et al Doc. 324 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION NATIONAL UNION FIRE INSURANCE

More information

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE HONORABLE RICHARD A. JONES 1 1 1 MICHAEL CONTI, v. ORDER 1 Plaintiff, CORPORATE SERVICES GROUP, INC., et al., Defendants. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE CASE NO.

More information

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS UNITED STATES OF AMERICA, v. DON HILL, et al., Defendants. NO. 307CR289-R ELECTRONICALLY

More information

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION. Case No. 5:07-CV-231-F

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION. Case No. 5:07-CV-231-F IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION Case No. 5:07-CV-231-F PAMELA L. HENSLEY, ) ) Plaintiff, ) ) v. ) ) PROPOSED JOINT JOHNSTON COUNTY BOARD

More information

California Electronic Discovery Rules. William W. Belt, Jr.

California Electronic Discovery Rules. William W. Belt, Jr. California Electronic Discovery Rules William W. Belt, Jr. July 16, 2009 Today s speaker and some notes... Bill Belt William.Belt@LeClairRyan.com Welcome. With the high number of attendees, please note

More information

Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013

Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013 MDLA TTS August 23, 2013 ediscovery for DUMMIES LAWYERS Kate Burke Mortensen, Esq. kburke@xactdatadiscovery.com Scott Polus, Director of Forensic Services spolus@xactdatadiscovery.com 1 Where Do I Start??

More information

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO Filed 8/27/14 Tesser Ruttenberg etc. v. Forever Entertainment CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying

More information

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Goodridge v. Hewlett Packard Company Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHARLES GOODRIDGE, Plaintiff, v. CIVIL ACTION H-07-4162 HEWLETT-PACKARD

More information

Case 2:11-cv-01213-HGB-ALC Document 146 Filed 07/09/13 Page 1 of 8

Case 2:11-cv-01213-HGB-ALC Document 146 Filed 07/09/13 Page 1 of 8 Case 2:11-cv-01213-HGB-ALC Document 146 Filed 07/09/13 Page 1 of 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DONNA BOUDREAUX CIVIL ACTION VERSUS NO. 11-1213 ACE AMERICAN INSURANCE COMPANY;

More information

SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE

SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE Milton Luoma Metropolitan State University 700 East Seventh Street St. Paul, Minnesota 55337 651 793-1246 (fax) 651 793-1481 Milt.Luoma@metrostate.edu

More information

E-Discovery: New to California 1

E-Discovery: New to California 1 E-Discovery: New to California 1 Patrick O Donnell and Martin Dean 2 Introduction The New Electronic Discovery Act The new Electronic Discovery Act, Assembly Bill 5 (Evans), has modernized California law

More information

DISTRICT OF COLUMBIA COURT OF APPEALS. No. 03-CV-1445. Appeal from the Superior Court of the District of Columbia (CA-3748-02)

DISTRICT OF COLUMBIA COURT OF APPEALS. No. 03-CV-1445. Appeal from the Superior Court of the District of Columbia (CA-3748-02) Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections

More information

Case 1:09-cv-00554-JAW Document 165 Filed 01/23/12 Page 1 of 8 PageID #: 2495 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Case 1:09-cv-00554-JAW Document 165 Filed 01/23/12 Page 1 of 8 PageID #: 2495 UNITED STATES DISTRICT COURT DISTRICT OF MAINE Case 1:09-cv-00554-JAW Document 165 Filed 01/23/12 Page 1 of 8 PageID #: 2495 UNITED STATES DISTRICT COURT DISTRICT OF MAINE MICHAEL HINTON, ) ) Plaintiff, ) ) v. ) 1:09-cv-00554-JAW ) OUTBOARD MARINE

More information

2004 E-Discovery Developments: Year in Review

2004 E-Discovery Developments: Year in Review 2004 E-Discovery Developments: Year in Review Sean Foley, Esq., Legal Consultant Michele C.S. Lange, Esq., Staff Attorney, Legal Technologies January 20, 2005 Presenters Sean Foley, Esq., Legal Consultant

More information

SUPREME COURT OF PENNSYLVANIA CIVIL PROCEDURAL RULES COMMITTEE

SUPREME COURT OF PENNSYLVANIA CIVIL PROCEDURAL RULES COMMITTEE SUPREME COURT OF PENNSYLVANIA CIVIL PROCEDURAL RULES COMMITTEE Proposed Recommendation No. 249 Proposed Amendment of Rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011 Governing Discovery of Electronically

More information

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE In the Matter of a ) Uniform Pretrial Order ) ) Administrative Order 3AO-03-04 (Amended) UNIFORM PRETRIAL ORDER In order

More information

The Truth About CPLR Article 16

The Truth About CPLR Article 16 The DelliCarpini Law Firm Melville Law Center 877.917.9560 225 Old Country Road fax 631.923.1079 Melville, NY 11747 www.dellicarpinilaw.com John M. DelliCarpini Christopher J. DelliCarpini (admitted in

More information

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. No. 15-10629 Non-Argument Calendar. D.C. Docket No. 2:14-cv-00868-CSC.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. No. 15-10629 Non-Argument Calendar. D.C. Docket No. 2:14-cv-00868-CSC. Case: 15-10629 Date Filed: 08/06/2015 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 15-10629 Non-Argument Calendar D.C. Docket No. 2:14-cv-00868-CSC W.L.

More information

Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence

Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence By John Patzakis 1 Summary: Social

More information

SUPREME COURT OF WISCONSIN

SUPREME COURT OF WISCONSIN SUPREME COURT OF WISCONSIN 2008 WI 37 NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 07-12 In the matter

More information

TENNESSEE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS ANNUAL DUI TRAINING 2010 TUNICA, MISSISSIPPI - OCTOBER 21-22, 2010

TENNESSEE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS ANNUAL DUI TRAINING 2010 TUNICA, MISSISSIPPI - OCTOBER 21-22, 2010 TENNESSEE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS ANNUAL DUI TRAINING 2010 TUNICA, MISSISSIPPI - OCTOBER 21-22, 2010 Glenn R. Funk 117 Union Street Nashville, TN 37201 (615) 255-9595 ETHICS IN DUI DEFENSE

More information

E-Discovery and Electronically Stored Information (ESI):

E-Discovery and Electronically Stored Information (ESI): E-Discovery and Electronically Stored Information (ESI): How Can It Help or Hinder a Case? Rosevelie Márquez Morales Harris Beach PLLC New York, NY Rosevelie Márquez Morales is a partner at Harris Beach

More information

THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE

THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE White Paper Series February 2006 THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE The law is continuously carving out and redefining the boundaries of electronic document

More information

RULE 10 FUNDS HELD BY THE CLERK

RULE 10 FUNDS HELD BY THE CLERK RULE 10 FUNDS HELD BY THE CLERK 10.1 General. A Judge of the District Court may order that any monies in actions pending before the Court be invested in any local financial institution for safe keeping.

More information

E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE. Ana Maria Martinez April 14, 2011

E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE. Ana Maria Martinez April 14, 2011 E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE Ana Maria Martinez April 14, 2011 This presentation does not present the views of the U.S. Department of Justice. This presentation is not legal advice.

More information

In a recent Southern District of California decision, the court sent a

In a recent Southern District of California decision, the court sent a The Qualcomm Decision: Ethics In Electronic Discovery VICTORIA E. BRIEANT AND DAMON COLANGELO A recent decision reinforces the importance of a comprehensive electronic document management plan. In a recent

More information

Managing Jones Act Personal Injury Litigation The Vessel Owner s Perspective. Lawrence R. DeMarcay, III

Managing Jones Act Personal Injury Litigation The Vessel Owner s Perspective. Lawrence R. DeMarcay, III Managing Jones Act Personal Injury Litigation The Vessel Owner s Perspective by Lawrence R. DeMarcay, III Presented to the Offshore Marine Services Association / Loyola College of Law Industry Seminar

More information

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Franke v. Bridgepoint Education, Inc. et al Doc. 1 1 1 1 1 0 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA In re BRIDGEPOINT EDUCATION, INC., SECURITIES LITIGATION Civil No. 1cv JM (JLB)

More information

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE IN RE: AMENDMENTS TO THE TENNESSEE RULES OF CIVIL PROCEDURE Filed: June 20, 2008 ORDER The Advisory Commission on the Rules of Practice & Procedure annually

More information

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA REPUBLIC BUSINESS CREDIT, LLC VERSUS NO: 13-5535

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA REPUBLIC BUSINESS CREDIT, LLC VERSUS NO: 13-5535 Republic Business Credit, LLC v. Greystone & Co., Inc. et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA REPUBLIC BUSINESS CREDIT, LLC CIVIL ACTION VERSUS NO: 13-5535 GREYSTONE &

More information

Predictability in E-Discovery

Predictability in E-Discovery Predictability in E-Discovery Presented by: John G. Roman, Jr. National Manager, Practice Group Technology Services Nixon Peabody LLP Tom Barce Assistant Director of Practice Support Fulbright & Jaworski

More information