Edited by John M. Degnan & Heidi J.K. Fessler
The E-Discovery Deskbook covers all aspects of e-discovery and is a must-own resource for all practitioners! Whether you are working solo, in a firm small or large, or in-house, every attorney will need to know how to conduct effective and efficient e-discovery. The Deskbook is written to provide new practitioners or those unfamiliar with e-discovery a comprehensive overview of the process, issues to be aware of, and helpful practice tips to guide them through the process. The Deskbook also gives experienced practitioners an in-depth, thorough resource to consult when dealing with complex legal issues related to e-discovery, and assist practitioners of all skill levels in conducting better, more cost-effective discovery.
Some topics covered in the E-Discovery Deskbook include preservation obligations and legal holds; proper collection process; processing, platforms, and review; maximizing tools for efficiency; review acceleration; production; privilege and clawbacks; in-house perspectives; insights from the bench; authentication and admissibility; data security; and using forensic experts. The E-Discovery Deskbook covers all these aspects of e-discovery and will walk attorneys through the e-discovery process for any case, large or small!
The 2020 Update to the E-Discovery Deskbook includes updates to 10 chapters, including Ch. 2, Preservation Obligations and Legal Holds; Ch. 4, Processing Platforms and Review: Maximizing the Tools for Efficiency; Ch. 5, Review Acceleration, Predictive Coding, and the Evolving Technology of Search; Ch. 6, Privilege and Clawbacks; Ch. 10, New Rules and Evolving Standards; Ch. 12, Authentication and Admissibility of Electronic Evidence; and many others! The 2020 Update also includes extensive discussion of the COVID-19 pandemic and its impact on practice, including a NEW section on Remote Review – Special Considerations (Ch. 4), examining the impact of the COVID-19 pandemic on document review teams, and outlines best practices for leading a review team that is working remotely, including issues of data security, productivity, and team communication, examination of how attorneys can uphold their professional and ethical obligations in light of the COVID-19 pandemic, and corresponding rise in remote work and Zoom meetings, with references to the Minnesota Rules of Professional Conduct (Ch. 7), as well as NEW sections on authentication and admissibility of recorded videoconference meetings and calls like Zoom meetings, and the information gathered by wearable technology like smart watches, fitness trackers, and smart glasses (Ch. 12). The Deskbook was also updated to include new case law from state and federal jurisdictions, as well as updates and changes to statutes and court rules. The E-Discovery Deskbook keeps practitioners on the cutting edge of e-discovery in all areas of practice, and in any size dispute.
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An Electronic Discovery Primer
Introduction; Measures of Electronic Data; Types of Electronic Data; Understanding the Challenges of Working with Electronically Stored Information; Ethical Rules and E-Discovery; Electronic Discovery Reference Model; Discovery Counsel, E-Neutrals, and Special Masters; Sanctions and Malpractice; Cross-Border and GDPR Discovery Implications; Conclusion
– John M. Degnan & Heidi J.K. Fessler
Preservation Obligations and Legal Holds
Introduction: What is a Litigation Hold and Why Have One?; Recognizing the Litigation Hold Trigger; Creating the Litigation Hold; Who Should Receive the Hold; Proportionality Informs the Duty to Preserve; Technical Aspects of the Preservation of ESI; Unique Preservation Issues; Renewal of the Litigation Hold; Release of the Litigation Hold; Consequences for Failing to Issue or Comply with a Litigation Hold; Amendments to Federal Rule of Civil Procedure 37(e) and Minnesota Rule of Civil Procedure 37.5 Sanctions; Additional Resources
– Keiko L. Sugisaka & John N. Sellner
Introduction; Understanding Data Types and Collection Points; Developing a Collection Plan; Determining a Collection Methodology; Implementing the Plan; Appendix A – Sample Evidence Chain of Custody Tracking Form; Appendix B – Sample Data Collection Matrix
– Judith K. Branham & Stacey E. Randolph
Processing, Platforms, and Review: Maximizing the Tools for Efficiency
An Overview – Trends in Technology to Support Defensible Document Hosting and Review: Data Security and Industry Certifications, Cloud Data Collections, and E-Discovery Platforms; Data Assessment; Data Selection and Output; Recovery of E-Discovery Costs; Decommissioning Databases; Managed Document Review Process; Cloud-Based Hosting of Databases; Artificial Intelligence – The Game Changer in the Practice of Law
– Andrew M. Hansell & Barbara J. Klas
Review Acceleration, Predictive Coding, and the Evolving Technology of Search
Introduction; Artificial Intelligence in E-Discovery; Distinguishing Technology-Assisted Review Tools; Auto Redaction Tools; The Predictive Coding Process; Predictive Coding Key Terminology; Predictive Coding Cutoffs; Choosing an E-Discovery Solution; Court Cases and the Future of Technology-Assisted Review and Predictive Coding
– Danielle M. Doocy & Rafe Stanley
Privilege and Clawbacks: Considerations Regarding the Protection of Privileged and Protected ESI
Introduction and Overview; Protections Afforded Under the Federal Rules; Privilege Log Issues – Fed. R. Civ. P. 26(b)(5)(A) & Minn. R. Civ. P. 26.02(f)(1); Other Issues – Redaction and In Camera Review; Managing Document Gathering, Review, and Production with an Eye Toward the Attorney-Client Privilege and Word Product Doctrine; Data Privacy Concerns When Conducting E-Discovery; Appendix A: Checklist for Handling E-Discovery Issues for Privileges and Clawbacks
– Timothy M. O’Shea & Lousene M. Hoppe
Professionalism and Ethics in E-Discovery
Introduction; Minnesota Rules Covering E-Discovery; Proportionality and Cooperation; Working with Vendors; Unique Challenges with E-Discovery; The Minnesota Supreme Court and “Professionalism Aspirations”; Conclusion
– John M. Degnan & Mary T. Novacheck
E-Discovery From an In-House Perspective
The Evolution of In-House Law Departments; The Importance of Information Governance; In-House Counsel Should Actively Participate in Document Preservation Process; Vendor Selection; Creating a Defensible E-Discovery Program; Appendix A: Attorney/Client Privileged Legal Hold Interview Questions; Appendix B: In-House Counsel “Wish List” For Supplemental Tools
– May Lee & Joshua Strom
A View From the Bench
Part One: The Role of Proportionality in Reducing the Cost of Civil Litigation; The Cornerstone of “Right Sizing” Efforts in Civil Cases; Proportionality is to be Fairly Applied: It Favors Neither Plaintiffs nor Defendants; Proportionality is a Shared Obligation; Right Sizing Litigation: Proportionality in Action; Proportionality Requires Continual Assessment; Part Two: E-Discovery From the Other Side of the Bench: What the Court Expects of the Parties; Introduction; Rule 26(f) Conferences; Resolving Disputes About E-Discovery; Conclusion; Appendix A – Discussion of Electronic Discovery at Rule 26(f) Conferences: A Guide for Practitioners; Appendix B – Rules of the Road for Engaging Effectively with the Court on E-Discovery
– Honorable Jerome Abrams & Magistrate Judge Hildy Bowbeer
New Rules and Evolving Standards
Introduction; Scope and Purpose: FED. R. CIV. P. 1 & MINN. R. CIV. P. 1; Pretrial Conferences, Scheduling, Management: FED. R. CIV. P. 16 & MINN. R. CIV. P. 16; Duty to Disclose; General Provisions Governing Discovery: FED. R. CIV. P. 26 & MINN. R. CIV. P. 26; Depositions by Oral Examination; Depositions by Written Questions; Interrogatories to Parties: FED. R. CIV. P. 30, 31, 33; Requests for Production of Documents: FED. R. CIV. P. 34 & MINN. R. CIV. P. 34; Failure to Make Disclosures or to Cooperate in Discovery; Sanctions: FED. R. CIV. P. 37 & MINN. R. CIV. P. 37; Evolving Standards of Defensibility and Documenting Decisions During Discovery; Conclusion; Appendix A – Mandel Rule 37(e) Flow Chart; Appendix B – Meet & Confer Instructional Outline
– Brenden M. Kenney & Eric P. Mandel
Handling E-Discovery in All Cases – Big and Small
Introduction; Case Evaluation; Educating Clients; Budgeting; Developing an ESI Strategy with the Client; After-the-Fact Post Mortem; Appendix A – Rule of Thumb Point System for an ESI Plan
– Seth Leventhal & Christine Chalstrom
Authentication and Admissibility of ESI
Introduction: Authentication and Admissibility of ESI: The Current Seminal Case – Lorraine v. Markel American Insurance Co. – and the Five Evidentiary Issues Regarding the Admissibility of ESI; Analyzing the Lorraine Issues Under Minnesota Law; Practical Considerations for Minnesota Practitioners: Employing Minnesota’s Rules of Civil Procedure During Discovery to Assist with the Admissibility of ESI at Trial; Conclusion
– Mary T. Novacheck & Skip Durocher
Forensic Experts – When and How to Leverage the Talent
Introduction; The Case for Forensic Preservation; Recognizing When to Hire a Computer Forensic Expert; Communication is Key to a Successful Expert Engagement; Listen to the Expert; Costs; Conclusion
– Mark Lanterman & John M. Degnan
Data Security, Information Governance, and Understanding Data From the Inside Out
Understanding Data From the Inside Out; Essential Forensic Documentation; Forensic Collection for Criminal Matters; Forensic Process; Data Volume; User-Created Files; Metadata; File System Metadata; Document or Embedded Metadata; Data Breach Data Elements; Specific Cyber Threats; Network Security Monitoring Data; Login (Network and Host); Remote Login; File Transfers and File Transfer Details as Evidence; Exfiltration of Data; Indicators of Compromise; Forensic Issues; Data Integrity; The Impact of Privacy Regulation; Conclusion; Appendix A – Incident Response Plan Requirements
– Heidi J.K. Fessler & Scott Larson
E-Discovery in Criminal Matters
Introduction; Criminal Versus Civil E-Discovery; Counsel Competency; Restrictions on Criminal Discovery; Cell Phone Data in Criminal Matters; Social Media Data in Criminal Matters; Conclusion
– Heidi J.K. Fessler
Table of Authorities
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