The revolution in discovery The rise and consequent miniaturization of the computer The connectivity revolution The new digital realm of information The new information complex The impact on the practice of law The response of the rule makers Meet the new rules The new concept of electronically stored information and recognition that information exists within enveloping systems The form of information is dynamic Conforming amendment to rule 33(d) Early attention to e-discovery matters, disclosures The new concept of accessibility The new retrieval procedure The safe harbor Changes to rule 45 Brief background on the rule amendment process The process for amending the rules The standing committee and the judicial conference The Supreme Court and congressional review Where we are now in the process Preservation of evidence and sanctions for spoliation Public commentary on publication draft Legal background on the duty to preserve evidence The reasonableness standard Tailoring by means of rule 26 E-mail Backup tapes Metadata Parties must take affirmative steps to preserve electronic evidence Stipulated agreements and preservation letters Preservation orders Litigation holds Technical issues concerning preservation Sanctions for spoliation The Coleman-Morgan Stanley saga Caution to practitioners : the moral of Morgan Stanley The new meaning of the rule 26(f) conference Public comments about early discussion of issues Suggestion of technical experts presence New rule 26(f) and note after public comment Changes made after publication and comment Advocates must explore the relevant information systems The wisdom of prompt action How to cure nervousness about preservation orders Practical obstacles to gathering systems information The possibility of proprietary IT architecture Beware, lack of information will foster motion practice The desirability of an early privilege waiver agreement What to ask for : the network architecture and the people running IT The IT people Network diagram Server/router list Workstation and laptop list ASPs Other relevant information to ask for Anticipating a not reasonably accessible response Why ask for network diagram, server list, workstation and laptop list, and ASPs? The difficulty of gathering evidence in a distributed system Issues regarding form of production Public commentary applauding discussion of form of production Negative comments about native format New rule 34(b) and advisory committee note The concept of direct access or entering a computer system Case study about form of production Native files and the existence of metadata The concept of differing views of file information Authenticity issues and the importance of metadata Considerations on choice of forms of production and processing native files to achieve different forms Collection and forensics The world of processing Choices about form of production Native file linking in electronic discovery databases Image linking in electronic discovery databases How to produce the information The thorny issue of accessibility Support for the two-tier system in commentary Opposition to the two-tier system in commentary New discovery rubric deemed unnecessary and redundant Objections to lack of particularity requirement Predictions of an explosion in motion practice General confusion about meaning of the term reasonably accessible Comments on the identification requirement Cost shifting and sharing Proposed rule 26(b)(2) after revisions The committee's revisions in light of the substantial public comment Balancing test for cost shifting for discovery of inaccessible information The notion of sampling to test the assertion of inaccessibility More detail and particularity on the identification requirement Evaluating claims of not reasonably accessible Factors for consideration in the accessibility analysis Evolving case law on cost shifting and regulations regarding accessibility The danger of generalizing determining reasonably accessible vs. not reasonably accessible based on media Regulatory requirements/industry standards Auditors mandated retention of records Have the rules changed on forensic examination of hard drives? The new retrieval procedure Public commentary The support and opposition of a certification requirement The reasonable time issue for notice New rule 26(b)(5)(b) after public comment Changes to the rule after public comment Ability to custom tailor agreements under rules 26(f)(4) and 16(b)(6) Expansion to trial-preparation materials Reasonable steps to retrieve disseminated information Reasonable time requirement disappears The difficulty of sequestration and retrieval in the new information paradigm The new safe harbor provision Public commentary about the proposed safe harbor Absence of evidence of a sanctions problem Onslaught of preservation orders? The state of mind issue Changes to the rule after public comment.
Bibliography, etc. Note
Includes bibliographical references and index.
Table of contents available online.