Acknowledgments Introduction: Welcome to the Labyrinth. CHAPTER 1 Gathering the Evidence 1. CHAPTER 2 Third-Party Experts 25

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1 Acknowledgments Introduction: Welcome to the Labyrinth xi xiii CHAPTER 1 Gathering the Evidence 1 Form 1.1: General Preliminary Electronic Evidence Questions for Your Client 3 Form 1.2: Checklist to Define the Scope of Electronic Discovery 4 Form 1.3: Checklist for Electronic Media Device Evaluations 5 Form 1.4: Checklist of Sources for Electronic Evidence 6 Form 1.5: Desktop Information Form 7 Form 1.6: Server Information Form 10 Form 1.7: Identification of Key IT Personnel 13 Form 1.8: Evidence Custody Form 14 Form 1.9: Electronic Database Management Checklist 16 Form 1.10: Guidelines for an Electronic Evidence Protocol 19 Form 1.11: Nonwaiver of Privilege Agreement 24 CHAPTER 2 Third-Party Experts 25 E-Discovery Vendors 28 Form 2.1: Electronic Discovery Vendor Checklist 28 Form 2.2: Electronic Discovery Vendor Contract 30 Computer Forensic Experts 32 Form 2.3: Guidelines for Hiring an Electronic Discovery or Computer Forensic Expert 32 v

2 vi CONTENTS Form 2.4: Guidelines for Working with a Computer Forensic or Electronic Discovery Expert 36 Form 2.5: Confidentiality Agreement 40 Form 2.6: Computer Forensics Services Agreement 42 Form 2.7: Computer Forensics Expert CV 44 Data Hosting 54 Form 2.8: Internet Hosting Services Checklist 54 Form 2.9: Master Hosting and Service Agreement 56 CHAPTER 3 Preservation and Spoliation 67 Client Preservation of Evidence Letter 71 Form 3.1: Preservation of Evidence Letter to Client 71 Form 3.2: Preservation of Evidence Letter to Client Post-Zubulake 72 Opposing Party Preservation of Evidence Letter 76 Form 3.3: Preservation of Evidence Letter to Opponent or Third Party 76 Form 3.4: Preservation of Evidence Letter to Opposing Counsel 77 Form 3.5: Preservation of Evidence Letter 83 Form 3.6: Preservation of Evidence Letter 85 Form 3.7: Preservation of Evidence Letter to Opposing Counsel Post-Zubulake 87 Third-Party Preservation of Evidence Letter 89 Form 3.8: Preservation of Evidence Letter to Third Party 89 Document Retention Policy 90 Form 3.9: Document Retention Policy 90 Form 3.10: Records Management Policy Statement 93 Electronic Data Preservation Protocol 100 Form 3.11: Electronic Data Preservation Protocol 100 CHAPTER 4 Proposed Amendments to the Federal Rules of Civil Procedure 105 CHAPTER 5 Electronic Discovery 109 Interrogatories 109 Form 5.1: Initial Interrogatories Subject to Fed. R. Civ. P. 33(a) Limitations 111 Form 5.2: Interrogatories for Network Infrastructure 115

3 vii Form 5.3: Interrogatories for Internet Access and Usage 117 Form 5.4: Interrogatories for Computers/Servers 118 Form 5.5: Interrogatories for Software 119 Form 5.6: Interrogatories for Backup Systems 121 Form 5.7: Interrogatories for , Instant Messages, and Other Forms of Electronic Communication 122 Form 5.8: Interrogatories for Telephony 124 Form 5.9: Interrogatories for Remote Access/Home Issues 126 Form 5.10: Plaintiff s Motion for Leave to File Supplemental Interrogatories under Fed. R. Civ. P. 33(a) and 26(b)(2) 128 Form 5.11: Proposed Order Permitting Plaintiff to Propound Additional Interrogatories 131 Form 5.12: Joint Stipulation to Permit Supplemental Interrogatories (Defined Interrogatories by Number) 132 Form 5.13: Order to Permit Supplemental Interrogatories 134 Form 5.14: Joint Stipulation to Permit Supplemental Interrogatories (Defined Interrogatories by Attachment) 135 Requests for Production 136 Form 5.15: Request for Production of Documents, Things 138 Form 5.16: Request for Production of Documents, Things Regarding Network Infrastructure 142 Form 5.17: Request for Production of Documents, Things Regarding Internet Access and Usage 145 Form 5.18: Request for Production of Documents, Things Regarding Computers/Servers 147 Form 5.19: Request for Production of Documents, Things Regarding Software 150 Form 5.20: Request for Production of Documents, Things Regarding Backup Systems 152 Form 5.21: Request for Production of Documents, Things Regarding , Instant Messaging, and Other Forms of Electronic Communication 154 Form 5.22: Request for Production of Documents, Things Regarding Telephony 157

4 viii CONTENTS Form 5.23: Request for Production of Documents, Things Regarding Remote Access/Home Issues 159 Depositions 161 Form 5.24: Electronic Discovery Deposition Checklist 162 Form 5.25: Notice of Taking Deposition Pursuant to Fed. R. Civ. P. 30(b)(6) 169 Form 5.26: Sample Subpoena to Internet Service Provider 173 Motions to Compel 176 Form 5.27: Plaintiff s Motion to Permit Inspection and Copying of Computer Storage Devices or to Compel Production of Computer Equipment by Defendant 178 Form 5.28: Proposed Order 182 Motions for Protective Orders 183 Form 5.29: Defendant s Rule 7.4 Expedited Nondispositive Motion for Protective Order under Fed. R. Civ. P. 26(c) 184 Form 5.30: Affidavit of Defense Counsel in Support of Defendant s Rule 7.4 Expedited Nondispositive Motion for Protective Order under Fed. R. Civ. P. 26(c) 187 Form 5.31: Proposed Order 189 Form 5.32: Proposed Protective Order Regarding Preservation of Home Computer 191 Motion for Sanctions 194 Form 5.33: Defendant s Rule 7.4 Expedited Nondispositive Motion for Sanctions under Fed. R. Civ. P Form 5.34: Proposed Order for Sanctions 199 Rule 16 Meet and Confer 200 Form 5.35: A Rule 16(c) Pretrial Conference Agenda for Computer-Based Discovery 201 Form 5.36: Joint Stipulation and Order Regarding Meet and Confer Discussions 206 Form 5.37: Model Order Regarding Preservation 208 Form 5.38: Default Standard for Discovery of Electronic Documents ( E-Discovery ) 211 Form 5.39: Consent Protective Order Governing Imaging, Inspection of Computers and Protection of Confidential and Privileged Information 215 Sample Orders 221 Form 5.40: Order for Preservation of Records (Pharmaceutical Product Liability) 221 Form 5.41: Order for Preservation of Records (Mutliparty, Complex Litigation) 224

5 ix Form 5.42: Ex Parte Order Establishing Procedures for Examination, Copying, and Imaging of Computers, Hard Drives, or Other Electronic Storage Media 230 Form 5.43: Ex Parte Statutory Restraining Order Concerning Documents and Expedited Discovery 233 Appendices 237 The Sedona Conference Glossary 239 Electronic Evidence Case Digest 299 Table of Electronic Evidence Cases 727 Index 737 About the Authors 743 About the CD 755

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