Discovery Resources

by Conrad J. Jacoby, Esq.

In July 2008, The Sedona Conference®, a non-profit legal think tank well-known for its Sedona Principles regarding preservation and production of electronically stored information in civil litigation, released The Sedona Conference® Cooperation Proclamation.  In it, the Conference suggests that overly aggressive (e.g., “scorched-earth”) discovery tactics reflect a misunderstanding of lawyers’ duty to provide effective advocacy for their clients. Instead, the Proclamation calls on lawyers to work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute. 

The Cooperation Proclamation challenges lawyers to rethink their litigation roles and strategies.  The Proclamation notes that continue…

by Conrad J. Jacoby, Esq.

Harvesting electronically stored information (“ESI”) using forensically sound collection techniques is a slow—sometimes painfully slow—process.  Clients and lawyers alike are strongly tempted to find alternate methods for collecting potentially relevant data, both to move discovery ahead more quickly and also to reduce the hourly charges incurred by collection teams.  After all, generally speaking, the vast majority of data collected in a forensic image isn’t relevant in any way to the underlying legal dispute and will be filtered out at the earliest stages of data analysis.  Why bother to collect all that information in the first place?

Critics of forensic collection have a point, of course, but their continue…

by Conrad Jacoby

As has been made explicitly clear in the Federal Rules of Civil Procedure, relevant information is potentially discoverable, regardless of where and how it has been stored.  As a consequence, traditional definitions of “document” no longer match real life, since relevant information may be as likely to be stored in a database entry or a chat log as in standalone word processing documents. 

This new awareness of information relevance is forcing legal teams and their clients to update their document preservation procedures, especially with respect to potentially relevant electronically stored information (“ESI”) that is stored on specialized computerized devices like mobile phones, PDAs, and Internet appliances.  These small devices continue…

by Conrad Jacoby, Esq.

The cost of reviewing discovery document collections for relevance and privilege dwarfs just about every other segment of the litigation fact discovery process.  Taking depositions?  They consume almost no time compared to the effort required to review the average document collection.  Expensive expert witnesses?  Except in highly specialized situations, expert work, too, amounts to only a fraction of the cost of having law firm associates and paralegals review 100,000 (or 200,000 or 2 million) e-mail messages and loose documents for content. 

Review costs are directly related to the number of documents that must be reviewed, so one of the most fundamental strategies for containing discovery costs is limiting continue…

by Conrad Jacoby

Preservation is the foundation for effective management of discovery materials—hardcopy and electronic alike.  After all, documents that are not preserved cannot be examined for potential relevance.  Courts routinely punish parties that have failed to preserve potentially relevant evidence—even though, as a statistical matter, it’s overwhelmingly likely that documents within an organization are supportive of the producing party’s position and not the “smoking guns” requesting counsel dreams of finding. 

Statistics, of course, only speak to trends across larger data populations.  Litigation is full of disputes in which a producing party was able to identify—and destroy—key documents while leaving other materials intact.  For example, the older case of Carlucci v. Piper continue…

by Dennis Kiker, Esq., Director, Fios Consulting, Fios, Inc.

On September 8, 2008, the U.S. House of Representatives passed Senate Bill 2450 without amendments, which adds Rule 502 to the Federal Rules of Evidence. The bill was approved by the Senate way back in February (who says Congress doesn’t act quickly?), and President Bush has officially signed Rule 502.

So what? Well, this is actually pretty good news for corporate litigants, assuming that they understand the rule and are properly prepared. Unlike the changes to Rule 26(b) implemented as part of the e-discovery amendments to the Federal Rules of Civil Procedure, the addition of Rule 502 is a change in substantive law continue…

by Dennis Kiker, Esq., Fios Consulting, Fios, Inc.

If you look around my office, you’d have to conclude that it is. Though most of my stuff is on the computer, I still seem to wind up with lots of paper on my desk – in part because some things are just easier to read or manage in paper. (Think about those 20 minutes between the time the cabin door closes and the plane reaches 10,000 feet. What would I do without paper?) So, for me, paper is often pretty useful.

In the litigation context, however, that might not be true. In one of his most recent decisions, Judge Waxse of the District continue…

By Prashant Dubey and Mary Mack, Esq.

In the United States home ownership is almost equivalent to freedom of speech, equality and the pursuit of happiness. The fact is that most people who “own” a home own only a small piece of it; the rest is financed through mortgages. And some of them have proven to be quite risky and costly for the economy.

Subprime loans and other adjustable-rate mortgages, which are made to higher-risk borrowers with lower income or shakier credit histories than prime borrowers (at higher interest rates to compensate for increased credit risks), came with hidden surprises and hidden costs. And as the housing bubble began to burst in continue…

By Conrad J. Jacoby, Esq

Preservation is the foundation for effective management of discovery materials—hardcopy and electronic alike.  After all, documents that are not preserved cannot be examined for potential relevance.  Courts routinely punish parties that have failed to preserve potentially relevant evidence—even though, as a statistical matter, it’s overwhelmingly likely that documents within an organization are supportive of the producing party’s position and not the “smoking guns” requesting counsel dreams of finding. 

Statistics, of course, only speak to trends across larger data populations.  Litigation is full of disputes in which a producing party was able to identify—and destroy—key documents while leaving other materials intact.  For example, the older case of Carlucci continue…

by Conrad J. Jacoby, Esq.

e-Discovery is not a natural disaster, but in some ways, it has more than a little bit in common with some of the flooding we recently experienced in the American Midwest. Floods are deceptive in appearance. From a distance, floodwaters’ calm surface looks uneventful and even serene. It’s only when you see treetops and house roofs peeking up that you are reminded of the underwater debris and destruction that resulted from the relentless push of water against everything standing in its path.

Electronic discovery, too, can look deceptively simple from a distance. In a courtroom, a judge’s order for a party to produce its relevant e-mail and continue…