Open Access. Powered by Scholars. Published by Universities.®

Evidence Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 26 of 26

Full-Text Articles in Evidence

Understanding And Contextualizing Precedents In E-Discovery: The Illusion Of Stare Decisis And Best Practices To Avoid Reliance On Outdated Guidance, Jonathan M. Redgrave, Keltie Hays Peay, Mathea K.E. Bulander Jan 2014

Understanding And Contextualizing Precedents In E-Discovery: The Illusion Of Stare Decisis And Best Practices To Avoid Reliance On Outdated Guidance, Jonathan M. Redgrave, Keltie Hays Peay, Mathea K.E. Bulander

Richmond Journal of Law & Technology

But as precedents survive like the clavicle in the cat, long after the use they once served is at an end, and the reason for them has been forgotten, the result of following them must often be failure and confusion from the merely logical point of view.


Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave Jan 2012

Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave

Richmond Journal of Law & Technology

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, …


Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen Jan 2012

Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen

Richmond Journal of Law & Technology

The Federal Rules of Civil Procedure were created to promote the “just, speedy, and inexpensive determination of every action and proceeding.” Unfortunately, in the world of e-discovery, case determinations are often anything but speedy and inexpensive. The manual review process is notoriously one of the most expensive parts of litigation. Beyond expense, the time and effort required to carry out large-scale manual review places an immense burden on parties, nearly destroying the possibility of assessing the merits of early settlement before expensive review has already been carried out.


Four Years Later: How The 2006 Amendments To The Federal Rules Have Reshaped The E-Discovery Landscape And Are Revitalizing The Civil Justice System, Bennett B. Borden, Monica Mccarroll, Brian C. Vick, Lauren M. Wheeling Jan 2011

Four Years Later: How The 2006 Amendments To The Federal Rules Have Reshaped The E-Discovery Landscape And Are Revitalizing The Civil Justice System, Bennett B. Borden, Monica Mccarroll, Brian C. Vick, Lauren M. Wheeling

Richmond Journal of Law & Technology

The 2006 amendments to the Federal Rules of Civil Procedure, which were enacted to address the potentially immense burden involved in the discovery of electronically-stored information (“ESI”), set in motion a process that is revitalizing the primary purpose of the Federal Rules of Civil Procedure adopted nearly seventy years earlier: “to secure the just, speedy, and inexpensive determination of every action and proceeding.” One of the principal means through which the Federal Rules of Civil Procedure achieve this purpose is by allowing for the discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” The reasoning …


Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron Jan 2011

Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron

Richmond Journal of Law & Technology

In 2007, in the pages of this Journal, George L. Paul and I posed a question to the legal profession at large, to wit: can the legal system adapt to the new reality of an era of rapid inflation in the amount of electronically stored information (ESI) at issue in civil litigation? After surveying the history of technological innovation that led to an explosion of new data, we proceeded to discuss various legal strategies for success in our current inflationary epoch. These strategies included: consideration of new and emerging ways in which to think about search and information retrieval in …


The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan Jan 2010

The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan

Richmond Journal of Law & Technology

As a general rule, companies and government agencies should plan for preservation and production before litigation is probable. This means having a document retention program. These programs ensure that documents are retained or deleted in an orderly fashion. If a company properly follows its policies and procedures, this retention program acts as a “shield” against the incomplete preservation of relevant (or “hot”) documents deleted before the proper initiation of a litigation hold. If parties do not follow, or inconsistently follow, such a program, they might have to explain what happened to a missing relevant document. Thus, a retention program might …


Electronic Discovery In Large Organizations, Jason Fliegel, Robert Entwisle Jan 2009

Electronic Discovery In Large Organizations, Jason Fliegel, Robert Entwisle

Richmond Journal of Law & Technology

The continuing expansion and virtually limitless array of technology and media available to store electronic information has had an immeasurable impact on the amount of information large organizations create and maintain. In many instances, this information continues to be available long after it has served the originator’s purposes. Yet, such information is not exempt from discovery in litigation, and attempting to identify, preserve, collect, review, and produce that information results in a significant burden on litigants, while the failure to do so can result in draconian sanctions or adverse publicity.


Asymmetrical Warfare: The Cost Of Electronic Discovery In Employment Litigation, Rodney A. Satterwhite, Matthew J. Quatrara Jan 2008

Asymmetrical Warfare: The Cost Of Electronic Discovery In Employment Litigation, Rodney A. Satterwhite, Matthew J. Quatrara

Richmond Journal of Law & Technology

A fundamental tenet of the 2006 Amendments to the Federal Rules of Civil Procedure (the “2006 Amendments”) is the notion that parties can agree and cooperate on issues relating to electronic discovery. Many of the rule changes now either require parties to meet and confer about electronic discovery or presuppose a certain level of dialogue between the parties regarding such issues.


A Search For Balance In The Discovery Of Esi Since December 1, 2006, Douglas L. Roger Jan 2008

A Search For Balance In The Discovery Of Esi Since December 1, 2006, Douglas L. Roger

Richmond Journal of Law & Technology

An explosion in the amount and discovery of electronically stored information (ESI) threatens to clog the federal court system and make judicial determination of the substantive merits of disputes an endangered species. It is interesting that this information discovery explosion has skipped over Rule 1 of the Federal Rules of Civil Procedure, which provides in part that the federal rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”


The “Two-Tiered” Approach To E-Discovery: Has Rule 26(B)(2)(B) Fulfilled Its Promise?, Thomas Y. Allman Jan 2008

The “Two-Tiered” Approach To E-Discovery: Has Rule 26(B)(2)(B) Fulfilled Its Promise?, Thomas Y. Allman

Richmond Journal of Law & Technology

We have now had more than a year to assess the impact of the 2006 Amendments of the Federal Rules of Civil Procedure (“the Amendments”) on discovery of electronically stored information. At the core of these provisions is the “two-tiered” discovery process. Under Rule 26(b)(2)(B), restyled as “Specific Limitations on Electronically Stored Information,” a party is permitted to utilize information from “reasonably accessible” sources of electronically stored information to respond to all forms of discovery without seeking information from inaccessible sources, provided that they are identified. Reasonably accessible sources are those which are available without “undue burden or cost.”


Information Inflation: Can The Legal System Adapt?, George L. Paul, Jason R. Baron Jan 2007

Information Inflation: Can The Legal System Adapt?, George L. Paul, Jason R. Baron

Richmond Journal of Law & Technology

Information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization- wide morph, or pulse, or one might say that information has evolved. This article discusses the new inflationary dynamic, which has caused written information to multiply by as much as ten thousand-fold recently. The resulting landscape has stressed the legal system and indeed, it is becoming prohibitively expensive for lawyers even to search through information. This is particularly true in litigation.


The Two-Tier Discovery Provision Of Rule 26(B)(2)(B) - A Reasonable Measure For Controlling Electronic Discovery?, Theodore C. Hirt Jan 2007

The Two-Tier Discovery Provision Of Rule 26(B)(2)(B) - A Reasonable Measure For Controlling Electronic Discovery?, Theodore C. Hirt

Richmond Journal of Law & Technology

One of the most innovative provisions in the newly-effective amendments to the Federal Rules of Civil Procedure addressing electronic discovery may be the creation of a two-tier system for the discovery of electronically stored information, under new Rule 26(b)(2)(B). This rule states that “[a] party need not provide discovery” of such information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.”


Managing Preservation Obligations After The 2006 Federal E-Discovery Amendments, Thomas Y. Allman Jan 2007

Managing Preservation Obligations After The 2006 Federal E-Discovery Amendments, Thomas Y. Allman

Richmond Journal of Law & Technology

The 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (2006 Amendments or the Amendments) do not directly address the onset or scope of preservation obligations. As noted in the September 2005 Report of the Standing Committee of the Judicial Conference recommending adoption of the 2006 Amendments, preservation obligations “arise from independent sources of law” and are dependent upon “the substantive law of each jurisdiction.” However, the Amendments have a major impact on how parties must analyze and execute preservation obligations involving electronically stored information (“ESI”).


In Pursuit Of Frcp 1: Creative Approaches To Cutting And Shifting The Costs Of Discovery, Mia Mazza, Emmalena K. Quesada, Ashley L. Sternberg Jan 2007

In Pursuit Of Frcp 1: Creative Approaches To Cutting And Shifting The Costs Of Discovery, Mia Mazza, Emmalena K. Quesada, Ashley L. Sternberg

Richmond Journal of Law & Technology

The most important rule of all is the last sentence of [FRCP] 1, which provides that the Federal Rules of Civil Procedure ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ It is this command that gives all the other rules life and meaning and timbre in the realist world of the trial court.


The 2006 Amendments To The Rules Of Civil Procedure: Accessible And Inaccessible Electronic Information Storage Devices, Why Parties Should Store Electronic Information In Accessible Formats, Benjamin D. Silbert Jan 2007

The 2006 Amendments To The Rules Of Civil Procedure: Accessible And Inaccessible Electronic Information Storage Devices, Why Parties Should Store Electronic Information In Accessible Formats, Benjamin D. Silbert

Richmond Journal of Law & Technology

Discovery jurisprudence is a cornerstone of civil litigation in the United States. The Federal Rules of Civil Procedure, as adopted in 1938, introduced a broad discovery process, which was not a previously accepted practice. The Federal Rules of Civil Procedure have been revised several times since 1938, reflecting the evolution of society. However, prior to 2006, 1970 was the last time the discovery rules were amended to take into account changes in information technology. In the last thirty-seven years, technological advances in electronic storage and communication have changed the way people live and how business is conducted, beyond what could …


A Duty Everlasting: The Perils Of Applying Traditional Doctrines Of Spoliation To Electronic Discovery, Michael R. Nelson, Mark H. Rosenberg Jan 2006

A Duty Everlasting: The Perils Of Applying Traditional Doctrines Of Spoliation To Electronic Discovery, Michael R. Nelson, Mark H. Rosenberg

Richmond Journal of Law & Technology

Amendments to the Federal Rules of Civil Procedure regarding electronic discovery are expected to take effect on December 1, 2006. These amendments are designed to alleviate the burden, expense and uncertainty that has resulted from the application of traditional discovery principles in the electronic age. These principles worked well in an era where discovery was primarily limited to the production of paper documentation, but have proved unworkable when applied to the discovery of electronic data, particularly in the “corporate world,” where even the most routine business discussions are captured in electronic format.5


The Impact Of The Proposed Federal E-Discovery Rules, Thomas Y. Allman Jan 2006

The Impact Of The Proposed Federal E-Discovery Rules, Thomas Y. Allman

Richmond Journal of Law & Technology

Because of a conviction that e-discovery presents unique issues requiring uniform national rules, the Judicial Conference of the United States (“Judicial Conference”) has recommended and the Supreme Court has approved a number of amendments to the Federal Rules of Civil Procedure (“Proposed Rules”), which are scheduled to go into effect at the end of 2006.


Shifting Burdens And Concealing Electronic Evidence: Discovery In The Digital Era, Rebecca Rockwood Jan 2006

Shifting Burdens And Concealing Electronic Evidence: Discovery In The Digital Era, Rebecca Rockwood

Richmond Journal of Law & Technology

In the twenty-first century, persons involved in the legal profession will be forced to confront technological issues. Computers and technology have pervaded every aspect of society, and the legal system is no exception. The discovery process is a dramatic example of how lawyers and courts strain to keep up with technological advances. Traditional discovery practices have been severely overhauled as electronic information becomes increasingly prevalent. What was once a simple discovery request can now become an overwhelming task, as defendants must wade through a plethora of electronic documents in an attempt to comply with the court’s discovery orders.


“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse Jan 2004

“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse

Richmond Journal of Law & Technology

When the Federal Rules of Civil Procedure (FRCP) were formally adopted by United States Supreme Court Order on December 20, 1937, the emergence of computers and electronic information and their widespreadusewerehardlycontemplated. AlthoughtheFederalRulesof Civil Procedure have been amended on occasion to accommodate changing technology, the advent of the computer age creates new challenges for litigants, their attorneys, and the courts as they strive to apply traditional rules in an innovative technological environment. This article discusses just one aspect of that challenge: the fact that the vast majority of information now exists in electronic format and the impact of this reality on …


Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson Jan 2004

Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson

Richmond Journal of Law & Technology

A company’s employee has sued for sexual harassment, age discrimination, or wrongful termination. Or, as another example, the company has been sued for infringement of intellectual property, breach of contract, fraud, or any number of other business reasons. During the course of discovery, the plaintiff serves discovery requests, including a request for data that has been deleted from the company’s electronic records but may still be contained within the company’s backup systems. The search for this data is time consuming and expensive. Discoverable materials may be found in the company’s backup system, but does that possibility justify the lost productivity …


"Yer Outa Here!" A Framework For Analyzing The Potential Exclusion Of Expert Testimony Under The Federal Rules Of Evidence, Stephen D. Easton Jan 1998

"Yer Outa Here!" A Framework For Analyzing The Potential Exclusion Of Expert Testimony Under The Federal Rules Of Evidence, Stephen D. Easton

University of Richmond Law Review

It does not take long for even a casual observer of criminal and civil trials to make two observations about expert witnesses. The first of these observations comes almost immediately: experts are vitally important to the judicial process. In many trials, the outcome largely depends upon which set of impressively credentialed experts the jurors (and the judge) believe. The second observation generally comes later than the first: a significant amount of shoddy "science," phony logic, faulty analysis, sleight of hand, and other assorted junk enters the courtroom dressed up in the emperor's clothes of expert testimony.


Expert Witness Testimony: Back To The Future, L. Timothy Perrin Jan 1995

Expert Witness Testimony: Back To The Future, L. Timothy Perrin

University of Richmond Law Review

Expert witnesses are at once detested and treasured. The scorn is significant because of the increasingly prominent role experts play in both civil and criminal litigation. Experts are seen as mercenaries, prostitutes or hired guns, witnesses devoid of principle who sell their opinions to the highest bidder. Experts are not impartial professionals who explain difficult concepts to the trier of fact. Rather, experts become advocates for the side who hired them. The consequences of this role change are not desirable: experts testify to matters beyond their expertise, render opinions that are unreliable, speculative or outside what the experts would be …


Corporate And Institutional Accident Investigations As Work Product Pursuant To The Rules Of The Supreme Court Of Virginia, William Todd Benson Jan 1983

Corporate And Institutional Accident Investigations As Work Product Pursuant To The Rules Of The Supreme Court Of Virginia, William Todd Benson

University of Richmond Law Review

If the magnitude of the mishap so warrants, many businesses immediately call their insurance adjuster or other accident investigator. In some of the larger businesses, accident investigation and insurance have become in-house operations. This quick reflex toward early fact investigation is prompted, in part, by a healthy respect for the potentiality of claims arising out of the day to day conduct of business affairs. When a suit against such company ultimately is ified and discovery sought, an issue often arises concerning whether early institutional investigations are "work product" for purposes of the federal or Virginia rules of civil procedure. This …


Discovery Of Expert Information Under The Federal Rules Jan 1976

Discovery Of Expert Information Under The Federal Rules

University of Richmond Law Review

With the adoption of extensive pretrial discovery mechanisms, preparation for trial in the federal system underwent a dramatic alteration. Instead of relying upon pleadings to perform the tasks of notice-giving, issue formulation, and fact-revelation, the various discovery devices available under the Federal Rules of Civil Procedure allow the parties "to obtain the fullest possible knowledge of the issues and facts before trial."' Discovery was created to promote the just, speedy, and inexpensive disposal of litigation. To this end, discovery serves to (1) facilitate the formulation and narrowing of issues; (2) protect against unfair surprise during trial; (3) detect any superflous …


Should Virginia Adopt The Federal Rules Of Discovery?, Emanuel Emroch Jan 1966

Should Virginia Adopt The Federal Rules Of Discovery?, Emanuel Emroch

University of Richmond Law Review

More than fifteen years -ago Virginia made a very important and progressive modification of the rules of practice and procedure in actions at law and suits in equity. The promulgation of the Rules of the Supreme Court of Appeals in 1950 substituted a modern system for an archaic, outmoded, and cumbersome one. Under the Rules litigants can state their case and plead in a brief and succinct manner, unhampered with unnecessary and ancient verbiage. There is less emphasis on form and more on substance, and this facilitates the better administration of justice. Generally, the Rules have unquestionably served the purposes …


Depositions For Discovery: The New Virginia Rule, J. Westwood Smithers Jan 1961

Depositions For Discovery: The New Virginia Rule, J. Westwood Smithers

University of Richmond Law Review

Important amendments to its Rules, effective April 1, 1961, were recently adopted by the Supreme Court of Appeals of Virginia. Perhaps the change of most interest to trial lawyers was the revision of Rule 3:23 relating to D'epositions and Discovery in Actions at Law.