Electronic Discovery

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1 NEW BOOK! Electronic Discovery by Brent E. Kidwell, Matthew M. Neumeier and Brian D. Hansen Featuring comprehensive guidance on: both offensive and defensive strategies special evidentiary issues reasonableness in the context of electronic discovery , messaging and other danger zones document retention policies that can withstand scrutiny forms and examples SAVE 10 % Use promo code when ordering to receive your discount. 105 Madison Avenue New York, NY Law Journal Press

2 Electronic Discovery by Brent E. Kidwell, Matthew M. Neumeier and Brian D. Hansen For trial lawyers, battles over electronic discovery are an aspect of litigation that cannot be ignored. The widespread use of and of electronically stored data have fundamentally altered the scope of discovery requests and the judicial standards for what is reasonable. They have also led to new strategies and tactics that can mean the difference between winning a case and losing it. A ROADMAP FOR PLANNING AND ENGAGING IN E-DISCOVERY Electronic Discovery by Brent E. Kidwell, Matthew M. Neumeier and Brian D. Hansen is a comprehensive and much needed treatment of this vital and evolving area. Beginning with the basic rules governing discovery, it discusses the legal and practical challenges involved in e-discovery, evidentiary concerns, the issuance of protective orders to limit electronic discovery, and strategic considerations in short, everything the practitioner needs to master e-discovery and use it to his or her advantage. The authors provide in-depth analysis of questions such as these: What is reasonable in the context of electronic discovery? How broad a search for relevant electronic records is necessary? To what extent is a party required to attempt to retrieve deleted documents? Can the requesting party be permitted to undertake its own independent search of the opponent's electronic record systems? Who bears the cost of searching and retrieving electronic records? What formats are required or permitted for the production of electronic records? What is the scope of the duty to supplement electronic records searches when the issues in dispute in the litigation remain ongoing? E-DISCOVERY STRATEGIES FROM BOTH OFFENSIVE AND DEFENSIVE PERSPECTIVES Electronic Discovery devotes considerable attention to how to deal with electronic discovery in an ongoing case. Topics covered include: steps that must be taken to preserve electronic records when litigation is threatened or initiated document retention policies that will withstand judicial scrutiny should an electronic discovery battle ensue sanctions in civil litigation when the failure to produce is challenged authentication of electronic evidence and other evidentiary issues the use of experts in the retention, identification or production of evidence Sample forms and documents include the following: a document retention policy and preservation order an use and retention policy a request for production of electronic documents interrogatories an outline for deposing an electronic records custodian or information technology staff The authors provide a must-read discussion of electronic mail and messaging, often the most potentially dangerous target of e-discovery. They discuss the legal issues including applicable federal statutes and privacy standards as well as technical aspects. They also address other potentially hazardous areas of electronic recordkeeping, such as the existence of often invisible metadata ; the difficulty of deleting data completely; and common bad habits in electronic communications. A TRULY MODERN DISCOVERY REFERENCE Much of the law of discovery is still based on dated statutes that have forced lawyers and the courts to improvise. Electronic Discovery, while covering older statutes in detail, is rooted squarely in the 21st Century. For the lawyer already experienced in e-discovery, it will serve as a helpful resource in solving new problems as they arise. Offering scholarly yet practical treatment of e-discovery techniques and legal issues, from the most basic to the most advanced, this is a reference book that will prove its worth to practicing trial lawyers for years to come. SAVE 10%! ELECTRONIC DISCOVERY, regularly $189, is now $ when you enclose payment with your order or use your credit card you save 10%! Use promo code when ordering to receive your discount. We will add shipping and handling to all credit card orders. For orders paid by check, add 10% to the pre-tax discounted price for shipping and handling. Phone, fax, visit us online at or mail in your order today! #00679; looseleaf, one volume, approximately 500 pages; published in 2005, updated as needed. Your purchase price includes the cost of any updates that may be issued within three months of your order. ISBN:

3 SUMMARY OF CONTENTS CHAPTER 1 Introduction Background Electronic Discovery Issues CHAPTER 2 The Federal Discovery Rules and Electronic Evidence Application of the Federal Rules of Civil Procedure to Electronic Evidence Requiring Production of Electronic Instead of Paper Documents Rule 26 Initial Disclosures and Electronic Evidence The Cost of Searching for and Retrieving Electronic Evidence CHAPTER 3 Planning and Executing Electronic Discovery Offensive Discovery Defending Against and Responding to Electronic Discovery Requests CHAPTER 4 Preserving Electronic Documents Before and After Litigation Ensues Retention Policies Document Preservation and Demand Letters Document Preservation Orders Sanctions for Failing to Produce or Preserve Electronic Evidence Form: Sample Electronic Document Retention Policy Form: Sample Use and Retention Policy Form: Sample Preservation of Evidence Letter Form: Sample Document Preservation Order CHAPTER 5 Drafting Discovery Requests for Electronic Information Preparing Electronic Discovery Requests Types of Electronic Records Typically Sought in Discovery Sample Document Request Interrogatories CHAPTER 6 Deposing the Records Custodian or Information Technology Manager Purpose of Deposing the Electronic Records Custodian or Technology Staff Strategy in Deposing or Defending the Deposition of the Custodian/IT Person The Nuts and Bolts of the Deposition Form: A Sample Outline for Taking the Deposition CHAPTER 7 Special Issues Regarding the Discovery of Electronic Mail and Messaging Why Deserves Special Attention in Electronic Discovery Legal Issues Regarding Discovery of Expectation of Privacy in Communications Inside the Black Box: How Electronic Mail Works The Components of an Electronic Mail Message Finding and Collecting Electronic Mail Messages Other Types of Messaging Proactive Planning for Discovery CHAPTER 8 The Federal Rules of Evidence and Electronic Documents Rule 401: Definition of Relevant Evidence Rules 901 and 902: Authentication and Self- Authentication Rule 801: the Problem of Hearsay Rule 1002: Requirement of Original Rule 1006: Summaries CHAPTER 9 The Use of Experts for Electronic Discovery When to Use an Expert Independent and Court Appointed Experts (the Special Master) Guiding the Expert s Work Table of Cases Index FOR A DETAILED TABLE OF CONTENTS, GO TO THE MOST UP-TO-DATE SOURCE FOR PUBLICATIONS FROM ALM.

4 About the Authors MATTHEW M. NEUMEIER is a partner in Jenner & Block s Chicago office, where he is Co-Chair of the Class Action Litigation Practice Group and the Products Liability and Mass Tort Defense Practice Group. He lectures and publishes frequently on topics such as electronic discovery and class action defense. Mr. Neumeier is co-author of Directors and Officers Liability: Prevention, Insurance & Indemnification from Law Journal Press. BRENT E. KIDWELL is a partner in Jenner & Block's Chicago office and serves as the Firm's Chief Knowledge Counsel. He is a member of the firm s Litigation & Dispute Resolution, Intellectual Property, and Products Liability and Mass Tort Defense Practices. In addition to his knowledge management activities, Mr. Kidwell manages the firm's Applied Technology Group, overseeing the delivery of advanced technology-based litigation support services to the firm and its clients as well as leading the aggressive use of state-ofthe-art technology in complex litigation matters, particularly those involving electronic discovery issues and other complex discovery or data mining challenges. BRIAN D. HANSEN is an associate in Jenner & Block's Chicago office. He is a member of the Firm's Litigation & Dispute Resolution, Class Action Litigation, and Insurance Litigation and Counseling Practices. In addition to the class action and insurance areas, Mr. Hansen has been involved in other types of commercial litigation, including TROs and other actions involving restrictive covenants, trade secrets, and fiduciary duty claims against officers and directors. Mr. Hansen has written several articles on electronic discovery. NEWLY UPDATED BOOK! Save 10% on this related book from Law Journal Press Hospital Liability by James Walker Smith A thorough and up-to-date working tool for the litigator/practitioner. Fred Queller of Queller & Fisher, New York; former president of the New York State Trial Lawyers Association I highly recommend the book to all those interested in effectively reducing their hospital s exposure to litigation and liability. George A. Sarkar, Ph.D., J.D., former Executive Director of Manhattan Eye, Ear & Throat Hospital This acclaimed treatise analyzes the impact of the latest statutes, regulations, cases and trends on your practice. You ll find comprehensive, helpful coverage of the newest theories of liability. Topics include: Standard of Care Refusal of Treatment Hospital Liability explores issues raised by high technology in the hospital, the AIDS epidemic, the duty of the medical provider to disclose an economic or personal interest in following a recommended procedure, and many other timely and relevant developments. Mr. Smith is a partner in the New York firm of Smith Abbot, LLP. HMO Liability for Medical Malpractice Nonmedical Liability Hospital Liability, regularly $219, is now $ when you enclose payment with your order or use your credit card you save 10%! Use promo code when ordering to receive your discount. We will add shipping and handling to all credit card orders. For orders paid by check, add 10% to the pre-tax discounted price for shipping and handling. Phone, fax, visit us online at or mail in your order today! #00596; looseleaf, one volume, approximately 700 pages; published in 1985, updated as needed. Your purchase price includes the cost of all previous updates and any updates that may be issued within three months of your order. ISBN:

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Checklist for Rule 16(c) Pretrial Conference for Computer-Based Discovery

Checklist for Rule 16(c) Pretrial Conference for Computer-Based Discovery To aid and advance the ability for a litigation to successfully employ computer-based discovery, Rule 16(c) of the Federal Rules