- 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 Note:
- Includes bibliographical references and index.
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