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The Northern District Court Of California Provides Useful ESI Guidelines That Should Be Duplicated

January 2013 Electronic data comprises a large portion of discovery and provides efficiencies in searching and manipulating the data for further analysis. Establishing a protocol for retention of electronic information and e-discovery of electronically stored information (ESI) is a critical step toward ensuring that relevant data is preserved and ultimately produced.  It is important that [...]

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California District Court Creates Broader Cost-Shifting Standard

October 2011 Couch v. Wan, 2011 WL 2971118 (E.D. Cal. July 20, 2011) raises the possibility that cost-shifting will be applied much more widely.  In this action, the requesting party (plaintiffs) sought reconsideration of a magistrate judge's order requiring the parties to share ESI (electronically-stored information) costs. The plaintiffs argued the cost-shifting order was contrary [...]

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Court Orders Potential Jail Time as an Unusual Sanction for ESI Discovery Abuse

September 2010 In Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (D.MD, Sept. 9, 2010), Chief United States Magistrate Judge Paul Grimm extensively analyzes the law on electronically-stored information (ESI) spoliation claims and related sanctions. Because of the defendant’s particularly bad behavior, the Court rendered a default judgment, an injunction, payment of plaintiff’s legal [...]

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ESI Spoliation Case Will Be Widely Followed

February 2010 In another case destined to be widely quoted, U.S District Judge Shira Scheindlin of Zubulake fame issued a ruling electronic discovery spoliation which she entitled Zubulake Revisited: Six Years Later.  The Pension Committee for the University of Montreal Pension Plan vs. Banc of America Securities et al. (USDC case 05 Civ. 9016 (SAS)), [...]

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Text Message Usage Is Exploding, But Usually Provides Useful Evidence Only In Criminal Cases

January 2010 Text messages are growing exponentially, so a thorough litigator or investigator naturally should evaluate whether evidence on mobile devices could impact his case. Consequently, we regularly get questions regarding the recoverability of text messages. The answer depends upon how much usage has occurred on the device from when the subject messages were sent, [...]

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California’s New Electronic Discovery Law Contains Important Difference From Federal Law

August 2009 On June 29, 2009, Governor Schwarzenegger signed into law "The Electronic Discovery Act" (California Assembly Bill AB 5). The law took immediate effect as an urgent measure, "in order to eliminate uncertainty and confusion regarding the discovery of electronically stored information" (ESI). Approximately half of the states now have separate statutes that specifically [...]

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Cell Phones And Handheld Devices Provide Discovery Opportunities

July 2008 The cost and complexity of forensics on handheld devices has caused this field to lag behind computer forensics. However, the valuable information contained on these mobile devices deserves increased attention by skilled civil lawyers and criminal investigators. Why Care about Mobile Devices? Generally, mobile computing devices provide all the discovery opportunities of a [...]

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Special Masters And Court-Appointed Experts Save Electronic Discovery Costs

May 2008 In litigation between competitors, protective orders alone are an insufficient means of solving confidentiality issues. This is particularly true when large databases and other collections of electronic information are at issue. For example, theft of trade secret lawsuits between employers and their former employees continue to increase. The proliferation of electronic data, and [...]

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Substantially Reduce Electronic Discovery Costs

April 2008  Why Electronic Discovery is Expensive Actually, discovery using electronic tools is not expensive at all. The high cost of electronic discovery is instead caused by having to review a large volume of electronic records (largely email) that businesses are creating and keeping. The ever-declining cost of electronic storage is the culprit. Currently, a [...]

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Using Computer Hash Totals In Electronic Discovery

October 2007  The hash value is a "digital fingerprint" of a larger document from which it was produced. A hash function takes a long variable-length data set or “string” as input, and produces a fixed length string as output. This is accomplished by running an algorithm against the data, and reducing the result to a [...]

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How To Get The Discovery You Need From Your Opponent

October 2007 An extraordinary amount of time is incurred in discovery asking for records that may not even exist, or asking for records that do exist, but the other side declines to produce records that were not requested using just the right terms. Once the records are identified, wasteful paper-based productions occur because the requesting [...]

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Electronic Storage Best Practices

October 2007  The majority of commentators regarding electronic discovery bemoan the high cost of dealing with all the electronic records. This usually misses the point. On a page-for-page basis, electronic records management and related electronic discovery costs a small fraction of what the same effort would be in paper. Why is this such a problem? [...]

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Lawyers In Hot Water For Not Monitoring Electronic Discovery

October 2007  Qualcomm, Inc. v. Broadcom Corporation, No. 05-CV-1958-B(BLM), 2007 WL 2296441 (S.D. Cal. August 6, 2007) is likely to have long-lasting impact on the standards affecting legal counsel and electronic discovery. The underlying case’s central issue is whether Qualcomm participated in development of an industry standard for which Qualcomm had patent coverage. The Court [...]

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Controversial Case Sets New Limits For Electronic Discovery

July 2007 Specifically, the Court ordered that the contents of random access memory (RAM) be permanently recorded, preserved, and produced. The case is Columbia Pictures vs. Burnell, Case No. CV 06-1093 in the Central District of California. In a detailed 35-page ruling, the United States District Court established new grounds for the scope of electronic [...]

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Unified Message Systems Will Expand Voice Recording Discovery

May 2007 Previously, voice mail has rarely been of interest because litigants concluded that the likelihood of getting useful information was not worth the discovery cost. This has occurred because of widespread system limitations that have made audio discovery less fruitful than other electronic discovery. These limitations include: 1. Older voice mail systems are outfitted [...]

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Assertion That Electronic Data Is “Not Reasonably Accessible” Must Be Supported

May 2007  Under Federal Rules of Civil Procedure (FRCP) 26(b) (2) (B), a party need not produce electronically stored data (ESI) that is not reasonably accessible, but the rules do not define what this means.  Specifically, "A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible. On [...]

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How To Select The Right Form Of Electronic Discovery

February 2007  The form in which you receive electronically stored information can make or break a case. The new FRCP rules provide for document production in various forms. Selecting the proper form in your situation can save costs, and/or provide additional information. There are four primary forms of production: Native Semi-native Paper Semi-paper As described [...]

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Metadata Primer For Lawyers

November 2005 Increasingly, lawyers are asked to review and produce metadata (also known as "embedded data") in response to legal discovery requests.  Courts throughout the U.S. have recognized the additional information that metadata provides, and have fairly consistently ordered parties to produce metadata when the issue has been raised. Metadata is a component of files [...]

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Best Practices In Electronic Discovery

October 2005   Fulbright & Jaworski's recent annual study of in-house trends named electronic discovery as the number 1 litigation-related burden for companies with revenues greater than $100 million.  With email and other electronic evidence becoming more prevalent, along with the war stories of electronic records production gone astray, it is understandable that effective record [...]

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Opportunities To Challenge Computerized Evidence

February 2007 Increased use of computerized data in disputes also increases the number of times that incorrect conclusions are reached because the data has not been properly obtained, handled and interpreted.  Whether presented by you or your opponent, attorneys should understand what could go wrong.  If the computer evidence has not been properly obtained, consider [...]

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