Evidence Commons^™

Overhauling Rules Of Evidence In Pro Se Courts, Andrew C. Budzinski

University of Richmond Law Review

State civil courtrooms are packed to the brim with litigants, but not with lawyers. Since the early 1990s, more and more litigants in state courts have appeared without legal counsel. Pro se litigation has grown consistently and enormously over the past few decades. State court dockets are dominated by cases brought by unrepresented litigants, most often in domestic violence, family law, landlord-tenant, and small claims courts.

Yet, the American courtroom is not designed for use by those unrepresented litigants—it is designed for use by attorneys. The American civil court is built upon a foundation of dense procedural rules, thick tomes …

Empowering The Defense To Confront The Government's Powers: Virginia Criminal Justice Legal Reform, Bryan Kennedy, Catherine F. Zagurskie

Richmond Public Interest Law Review

During the 2021 Session and 2021 Special Session, Virginia took steps to

restore the balance between individuals ensnared in the criminal legal system

and the government. These new laws allow people who are involved in

the criminal legal system to emphasize their humanity and to hold the government

to its various burdens at all stages of the case, including pre-trial,

trials, sentencing, and appeal. This article discusses four of the most important

changes to Virginia law that ensure a more level playing field between

the government and the accused.

First, eliminating the presumption against bail challenges the government’s

power of …

A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial, Jennifer Horan

University of Richmond Law Review

No abstract provided.

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

University of Richmond Law Review

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia's justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

"Connected" Discovery: What The Ubiquity Of Digital Evidence Means For Lawyers And Litigation, Gail Gottehrer

Richmond Journal of Law & Technology

More than ten years ago, the Zubulake case raised awareness of the importance of digital evidence in litigation. At that time, for many lawyers, the discovery process consisted of collecting paper documents, manually reviewing those paper documents, and responding to document requests by producing paper documents. Digital evidence existed, but was more limited in scope and volume than it is today. Back then it was often overlooked or not recognized as a potential source of valuable evidence to be obtained in discovery.

Digital Direction For The Analog Attorney-Date Protection, E-Discovery, And The Ethics Of Technological Competence In Today's World Of Tomorrow, Stacey Blaustein, Melinda L. Mclellan, James A. Sherer

Richmond Journal of Law & Technology

Over the past twenty years, the near-constant use of sophisticated technological tools has become an essential and indispensable aspect of the practice of law. The time and cost efficiencies generated by these resources are obvious, and have been for years. And because clients expect their counsel to take full advantage, savvy attorneys understand that they must keep up with ever-evolving legal technologies to stay competitive in a crowded marketplace.

The New Esi Sanctions Framework Under The Proposed Rule 37(E) Amendments, Philip J. Favro

Richmond Journal of Law & Technology

The debate over the necessity, substance, and form of the proposed e-Discovery amendments to the Federal Rules of Civil Procedure (Rules) has been ongoing for over four years. Since the Duke Conference convened in May 2010, the Judicial Conference Advisory Committee on the Civil Rules (Committee) has been working to address many of the perceived shortcomings in the current Rules regime.

Conducting U.S. Discovery In Asia: An Overview Of E-Discovery And Asian Privacy Laws, Lynn M. Marvin, Yohance Bowden

Richmond Journal of Law & Technology

The rapid expansion over the last decade of Asian corporations doing business in the United States and U.S. corporations doing business in Asia, has led to a marked increase in U.S. litigation involving Asian corporations as parties, requiring discovery of information located in Asia. According to the Office of the United States Trade Representative, U.S. trade of goods and services with countries in the Asia-Pacific Economic Cooperation (“APEC”) totaled $2.9 trillion in 2013: exports totaled $1.2 trillion and imports totaled $1.6 trillion. It naturally follows that Asian corporations doing business in the United States are utilizing the American court system …

Wherever You Go, There You Are (With Your Mobile Device): Privacy Risks And Legal Complexities Associated With International ‘Bring Your Own Device’ Programs, Melinda L. Mclellan, James A. Sherer, Emily R. Fedeles

Richmond Journal of Law & Technology

The cross-use of mobile devices for personal and professional purposes—commonly referred to as “Bring Your Own Device” or “BYOD” for short—has created a new backdrop for doing business that was scarcely imaginable even ten years ago.

Merger And Acquisition Due Diligence: A Proposed Framework To Incorporate Data Privacy, Information Security, E-Discovery, And Information Governance Into Due Diligence Practices, James A. Sherer, Taylor M. Hoffman, Eugenio E. Ortiz

Richmond Journal of Law & Technology

Merger and Acquisition or “M&A” deals are both figuratively and literally big business, where the stakes for the organization are often the highest. While casual observers might expect that the importance attached to these deals makes each new deal the vanguard for incorporating metrics and practices regarding every efficiency and contingency, existing research demonstrates that this is decidedly not the case.

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.

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.

Defensible Data Deletion: A Practical Approach To Reducing Cost And Managing Risk Associated With Expanding Enterprise Data, Dennis R. Kiker

Richmond Journal of Law & Technology

Modern businesses are hosts to steadily increasing volumes of data, creating significant cost and risk while potentially compromising the current and future performance and stability of the information systems in which the data reside. To mitigate these costs and risks, many companies are considering initiatives to identify and eliminate information that is not needed for any business or legal purpose (a process referred to herein as “data remediation”). There are several challenges for any such initiative, the most significant of which may be the fear that information subject to a legal preservation obligation might be destroyed.

Why Federal Rule Of Evidence 403 Is Unconstitutional, And Why That Matters, Kenneth S. Klein

University of Richmond Law Review

No abstract provided.

E-Discovery As Quantum Law: Clash Of Cultures-What The Future Portends, Michael Yager

Richmond Journal of Law & Technology

Early in the twentieth century, the phenomenon that is the “quantum” stormed the fortress of classical physics, causing Albert Einstein, one of science's greatest thinkers, to opine, “[i]t was as if the ground had been pulled out from under one, with no firm foundation to be seen anywhere, upon which one could have built.” The theoretical laws associated with looking at reality on the quantum level violently collided with those related to looking at the same reality on the macro level. The application of quantum theory to the mathematically pure and proven classical laws of physics introduced a cultural clash …

Social Media Evidence In Government Investigations And Criminal Proceedings: A Frontier Of New Legal Issues, Justin P. Murphy, Adrian Fontecilla

Richmond Journal of Law & Technology

As the newest pillar of communication in today’s society, social media is revolutionizing how the world does business, discovers and shares news, and instantly engages with friends and family. Not surprisingly, because social media factors into the majority of cases in some respect, this exploding medium significantly affects government investigations and criminal litigation. Social media evidence includes, among other things, photographs, status updates, a person’s location at a certain time, and direct communications to or from a defendant’s social media account. This Article will examine the importance of social media in government investigations and criminal litigation, including access to and …

Local Rules, Standing Orders, And Model Protocols: Where The Rubber Meets The (E-Discovery) Road, Thomas Y. Allman

Richmond Journal of Law & Technology

[District Courts], impatient with the failure of the national system to solve pressing, indeed urgent, procedural problems, utilize local rules in an effort to shape pragmatic solutions . . . . [as] one route to procedural change.

Ghost In The Machine: Zubulake Revisited And Other Emerging E-Discovery Issues Under The Amended Federal Rules, William P. Barnette

Richmond Journal of Law & Technology

We live in a digital age. Electronically stored information (“ESI”) “is commonplace in our personal lives and in the operation of businesses, public entities, and private organizations.” By now the numbers no longer shock: “more than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year;5 today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million e-mails annually.”

The Virginia Rules Of Evidence, Ronald J. Bacigal

Richmond Public Interest Law Review

Despite the Supreme Court's rejection of the proposed Code of Evidence, the Boyd-Graves Conference continued its efforts to create such a code. In 1997, the Boyd-Graves Conference published "A Guide to Evidence in Virginia." Unlike the previously proposed rules of evidence, this guide merely stated the current Virginia law on evidence, and did not recommend adoption of any changes to existing law. The Guide's approach of disdaining any proposed changes,"while creating "a single, organized body of principles for the convenience of judges and practitioners alike," ultimately overcame objections from most of those who had opposed an evidence code. The Guide …

Admissibility Of Non-U.S. Electronic Evidence, Kenneth N. Rashbaum, Matthew F. Knouff, Dominique Murray

Richmond Journal of Law & Technology

After two long years collecting hundreds of gigabytes of e-mail, data base reports, and social media posts from countries in Europe, Asia, and South America, such as France, South Korea, Argentina, Canada, Australia, and El Salvador, the day of trial has arrived. The trial team has obtained the data at great cost, in dollars as well as person-hours, but is finally ready for trial. First-chair counsel, second-chair counsel, and four paralegals file into the courtroom, not with bankers boxes full of documents as in earlier times, but with laptops, tablet computers, and a data projector. Following opening statements, the first …

Forensic Collection Of Electronic Evidence From Infrastructure-As-A-Service Cloud Computing, Josiah Dykstra, Damien Riehl

Richmond Journal of Law & Technology

As cloud computing becomes ubiquitous, the criminal targeting and criminal use of cloud computing is inevitable and imminent. Similarly, the need for civil forensic analyses of cloud computing has become more prevalent. Forensic investigation of cloud computing matters first requires an understanding of the technology and issues associated with the collection of electronically stored information (“ESI”) in the cloud. The misuse of the broad term “cloud computing” has caused some confusion and misinformation among legal and technology scholars, leading to a muddied and incomplete analysis of cloud-based discovery issues. Cases and academic analyses have dealt primarily with popular online services …

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

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.

The Virginia Rules Of Evidence, Ronald J. Bacigal

Richmond Journal of Law and the Public Interest

Despite the Supreme Court's rejection of the proposed Code of Evidence, the Boyd-Graves Conference continued its efforts to create such a code. In 1997, the Boyd-Graves Conference published "A Guide to Evidence in Virginia." Unlike the previously proposed rules of evidence, this guide merely stated the current Virginia law on evidence, and did not recommend adoption of any changes to existing law. The Guide's approach of disdaining any proposed changes,"while creating "a single, organized body of principles for the convenience of judges and practitioners alike," ultimately overcame objections from most of those who had opposed an evidence code. The Guide …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the 2010–2011 academic year.

The Admissibility Of Electronic Evidence Under The Federal Rules Of Evidence, Jonathan D. Frieden, Leigh M. Murray

Richmond Journal of Law & Technology

Following the December 2006 amendments to the Federal Rules of Civil Procedure, much has been written about the discovery of electronically-stored information.

Technology-Assisted Review In E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, Maura R. Grossman, Gordon V. Cormack

Richmond Journal of Law & Technology

E-discovery processes that use automated tools to prioritize and select documents for review are typically regarded as potential cost-savers – but inferior alternatives – to exhaustive manual review, in which a cadre of reviewers assesses every document for responsiveness to a production request, and for privilege. This Article offers evidence that such technology-assisted processes, while indeed more efficient, can also yield results superior to those of exhaustive manual review, as measured by recall and precision, as well as F1, a summary measure combining both recall and precision. The evidence derives from an analysis of data collected from the TREC 2009 …

Federal Rule Of Evidence 502: Has It Lived Up To Its Potential?, Paul W. Grimm, Lisa Yurwit Bergstrom, Matthew P. Kraeuter

Richmond Journal of Law & Technology

Nothing causes litigators greater anxiety than the possibility of doing, or failing to do, something during a civil case that waives attorney– client privilege or work-product protection. Attend any seminar, webcast, podcast, or other continuing legal education course dealing with the discovery of electronically stored information (“ESI”) and you are sure to hear about this concern and how to mitigate it.

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 …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the fourth issue of the 2010–2011 academic year. In this issue, we explore privacy law in the context of online social networking, online advertising and tort reform. Additionally, this issue examines mandatory disclosure of trade secrets as a component of offshore oil drilling regulation and evaluates certain criticisms levied against the Anti-Counterfeiting Trade Agreement.