Edited by John M. Degnan & Mary T. Novacheck
The NEW Second Edition of 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 Second Edition 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; digital evidence in criminal cases, 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!
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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; Federal Rule of Civil Procedure 37 and Minnesota Rule of Civil Procedure 37.05 Sanctions; Additional Resources
– Keiko L. Sugisaka & John N. Sellner
Introduction; Applicable Rules; Collections Projects; Identifying Data for Collection; Data Fundamentals; Collection Methods and Technologies; Conclusion; Appendix A – Sample Evidence Chain of Custody Tracking Form; Appendix B – Sample Data Collection Matrix
– Christopher Iijima & Andre Champagne
Processing, Platforms, and Review: Maximizing the Tools for Efficiency
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; Artificial Intelligence – The Game Changer in the Practice of Law
– Andrew M. Hansell
Analytics and Technology Assisted Review
Introduction; Common Analytics Terms; Technology Assisted Review; Analytics and TAR Key Terminology; Choosing a TAR-Based Solution; Court Cases and the Future of Technology Assisted Review
– Anthony P. Barrows & Kelly Atherton
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 Privilege 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
– 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 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 (ret.) & Magistrate Judge Hildy Bowbeer (ret.)
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
– Brendan Kenny & 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
Digital Evidence and E-Discovery in Criminal Matters
Introduction; The Basics: Criminal E-Discovery; Third-Party Electronic Evidence in Criminal Cases; Mobile Phone Evidence in Criminal Cases; Social Media; Complex E-Discovery in Criminal Litigation; Ethical Requirements; Case Law Supplement; Geofence Warrants; Internet of Things
– Mark Lanterman; Case Law Supplement by Heidi J.K. Fessler
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