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Full-Text Articles in Law
Search Method In E-Discovery: How Rule 26'S Silence Poses A Risk Of Sanctions To Attorneys And Increases The Cost Of Litigation, Khanh T. Huynh
Search Method In E-Discovery: How Rule 26'S Silence Poses A Risk Of Sanctions To Attorneys And Increases The Cost Of Litigation, Khanh T. Huynh
University of Massachusetts Law Review
The 2006 Amendments to the Federal Rules of Civil Procedure are the first codified references in the FRCP to electronic discovery. However, the lack of comprehensive rules in this area provides opportunities for attorneys to leverage search terms as a weapon, primarily to wear out opponents financially. Disagreement on search terms used to produce documents can prolong litigation. Complicated Boolearn search tems can be difficult to run. Other search methods, such as natural language search, cannot provide efficient and accurate results. The cost to run complicated searches is high, and the lack of rules addressing search terms in the FRCP …
The Discoverability Of E-Mails: The Smoking Gun Of The Modern Era, Michael J. Martin
The Discoverability Of E-Mails: The Smoking Gun Of The Modern Era, Michael J. Martin
University of Massachusetts Law Review
The discoverability of e-mails is an area of law that every modern day lawyer must be familiar with in order to avoid the risk of being sanctioned. Over the past years, courts have awarded sanctions to moving parties at a steadily increasing pace. These sanctions have included adverse jury instructions, default judgements, attorney's fees, large monetary fines, and in one instance, a jail sentence. Courts have sent the message that improper conduct will not be tolerated in this developing area of law by not hesitating to order sanctions. Thus, it is essential that modern day lawyers become acquainted with the …
How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter
How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter
Pepperdine Dispute Resolution Law Journal
This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a …
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
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
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.
Ghost In The Machine: Zubulake Revisited And Other Emerging E-Discovery Issues Under The Amended Federal Rules, William P. Barnette
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.”
Admissibility Of Non-U.S. Electronic Evidence, Kenneth N. Rashbaum, Matthew F. Knouff, Dominique Murray
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
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 …
Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen
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 Admissibility Of Electronic Evidence Under The Federal Rules Of Evidence, Jonathan D. Frieden, Leigh M. Murray
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
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 …
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
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 …
The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan
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 …
A Search For Balance In The Discovery Of Esi Since December 1, 2006, Douglas L. Roger
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.”
In Pursuit Of Frcp 1: Creative Approaches To Cutting And Shifting The Costs Of Discovery, Mia Mazza, Emmalena K. Quesada, Ashley L. Sternberg
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.