Electronic Evidence: Law and Practice / Edition 2

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Electronic Evidence: Law and Practice explores the range of problems encountered with electronic communications from discovery to trial, and offers practical solutions to both existing and potential problems. Particular emphasis is given to the unique problems evolving around the way in which parties are asserting the attorney-client privilege and judges are applying it to e-mail communications.

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Product Details

  • ISBN-13: 9781604420845
  • Publisher: American Bar Association
  • Publication date: 6/16/2009
  • Edition description: 2nd Edition
  • Edition number: 2
  • Pages: 510
  • Product dimensions: 6.20 (w) x 8.90 (h) x 1.10 (d)

Table of Contents

Foreword ix

Acknowledgments xiii

Dedication xv

Introduction xvii

Chapter 1 Discovery of Electronic Evidence 1

I The Evolution of E-discovery 3

II The Rules of E-discovery 11

A Electronically Stored Information Is Discoverable 12

B Parties Must Give Early Attention to E-discovery 16

1 Initial Disclosures 17

2 Conference of the Parties 21

3 Discovery Planning Conference 23

C Two Tiers of Discoverable Information-Data That Is Not Reasonably Accessible 28

1 Approaches to Cost Allocation 37

2 Another Approach to Cost Allocation 46

3 Sampling as a Factor in Cost Allocation 46

4 Cost Allocation in Practice 47

D Privilege and the Discovery of Electronically Stored Information 49

E Written Discovery 53

1 Testing and Sampling 53

2 Form of Production 53

3 Rule 33(d)-Interrogatories 56

4 Subpoenas 56

F Sanctions and the Spoliation "Safe Harbor" 57

III The Practical Side of E-discovery 59

A Counsel Must Acquire a Working Understanding of Potentially Relevant ESI 59

1 Build an E-discovery Team 61

2 Understand and Improve Information Technology Architecture 62

3 Develop a Preservation Process 63

4 Developing a Retention Plan 73

5 Issuing Instructions to Custodians to Preserve Potentially Relevant Records 75

6 Design and Implement E-discovery Guidelines 76

7 Identify a Preferred Vendor Network 76

8 Consider Acquiring or Licensing Appropriate Tools 77

Chapter 2 Spoliation 79

I Overview 80

II The Basics 86

A When Does the Duty to Preserve Arise? 89

B Does the Client's Obligation to Preserve Create Duties for Legal Counsel? 101

C What Must Be Retained and Preserved? 106

1 Privileged Materials 116

2 Duration of the Duty toPreserve 118

D Prejudice to Discovering Party 120

III Is Bad Faith Required? 133

IV Consequences of Spoliation 153

A Spoliation Is an Implied Admission by Conduct 168

B Logical Inference Instructions 172

C The Strange Spoliation Presumption 172

D Authority for Penalizing Destruction 176

V Burden of Persuasion 179

VI Choice of Law Question 180

VII Proving the Claim of Spoliation-You're Not Bound By the Rules of Evidence 180

VIII Evidence of Spoliation-Evidence of One's Conduct to Prove the Truth of Its Implied Message-Is It Hearsay? 181

IX Spoliation and the Attorney-Client Privilege 182

X Standard of Appellate Review 183

XI Computers and the Internet Expand Every Possibility 183

A Do Not Delete Records or Destroy Equipment 186

B Save the Hard Drives 188

C Don't Forget Personal Digital Assistants and Jump Drives 188

D Informal Encouragement to Others to Preserve Data 189

Chapter 3 Confidentiality and the Attorney-Client Privilege 191

I The Attorney-Client Privilege and Its Elements 193

A History of the Confidentiality Requirement 195

B Evolution of the Confidentiality Requirement 198

1 Ever-Expanding Circle 198

2 Ignoring Confidentiality 201

a Stolen documents 201

b Judicially compelled disclosures 203

c The unauthorized agent exception 206

d Inadvertent disclosures-the "oops" rule 207

e Disclosures under protective orders or with reservations 210

3 Confidentiality Must Be Maintained and Documented-The Increasing Problem of Outside Agents Functioning as Employees 215

C E-mail-An Extension of Existing Services and Technology 221

1 From Face-to-Face Communications to Letters 221

2 From Letters to Telephones 221

3 From Telephones to Computers 222

D Employees' Personal Expectation of Confidentiality in E-mail Communications 224

E Data Behind Electronic Evidence-Metadata 234

F Electronic Presentations 236

G Measures to Preserve Confidentiality? 239

H Asserting Attorney-Client Privilege for E-mails: The Practical Details, a Growing Concern 243

1 Expanding the Role of In-House Counsel-Jeopardizing the Applicability of the Privilege 244

2 Complicating the Distinction Between Communications and Information 248

3 How Is the Document Described in a Privilege Log? 252

4 Are Operating Assumptions About the Purpose of Communications Appropriate Based on the Individuals to Whom They Have Been Disseminated? 258

a When business and legal communications can be separated 261

b When business and legal advice are inextricably intertwined 264

I Spoliation and the Crime/Fraud Exception to the Attorney-Client Privilege 289

J Work Product Immunity Vis-à-Vis E-evidence 291

Chapter 4 Best Evidence/Original Writing Rule 297

I The Basics 298

II E-Evidence and the Original Writing Rule 303

III The Added Complexity of Summaries of Voluminous Materials 307

A The Hearsay Dimensions of Summaries 308

1 Non-hearsay Argument 309

2 Residual Exception Solution 310

B Insurmountable Hearsay Problems Created by Summaries of Voluminous Materials from the Internet 311

C The Evidentiary Status of Summaries under the Voluminous Writings Exception to the Original Writing Rule 312

Chapter 5 Presumptions 315

I The Basics 317

II Common Law Presumptions That Can Be Relevant to Authenticating E-commerce and E-mail 323

A Receipt of Mailed Letters 323

B Authority to Transact Business 325

C Authority to Use an Instrumentality 325

D Responsibility for Damage or Loss 326

III Authentication of E-commerce-Problems with Presumptions under the Federal Rules of Evidence 326

Chapter 6 Authentication 333

I The Basics 335

II Methods of Authentication 339

A Self-identification 348

1 Self-identification by the Sender: Establishing That a Letter Was Actually Written by the Person Named as Author 348

2 Self-identification by the Recipient: Establishing That a Message Was Received by the Fact That It Was Sent to That Individual's Address and He Responded to It 350

B Content 352

C Extrinsic Circumstances 354

III Authenticating Digital Photographs 357

A The Key Is the Chain of Custody 360

B Desirable Enhancement Versus Unacceptable Manipulation 362

C Authenticate the Computer Program Too 367

D The Internet Complication 367

E A Spoliation Problem 368

IV Authentication of Web Page Postings from the Internet 369

A Relaxation of Authentication Requirements 374

B Self-authentication and the Internet 376

1 Public Document Under Seal 381

2 Business Solicitations and Postings 382

3 Government Postings 384

4 Newspapers and Periodicals 385

5 Limits of Self-authentication 385

C Authenticating with Technology 386

1 Data Trails 386

2 Electronic Signatures 387

3 Public Key Infrastructure 390

4 Biometric Authentication 391

V Authentication of Computer Animations, Models, and Simulations 391

VI Authentication of Authenticating Technology 393

VII Other Issues Relating to Authentication of E-evidence 395

A Chain of Custody 395

B Expanded Pretrial Discovery May Justify a Lesser Foundation 399

C Admissibility and Weight: Two Bites at the Same Apple 400

D A Reality Check 400

Chapter 7 Hearsay 401

I The Basics 403

A Two Truths of Hearsay 404

II Hearsay Admissible Through Exceptions 409

A Multiple Levels of Hearsay 410

B Writings Are Like Another Person Speaking, Repeating the Out-of-Court Declarations of the Author 412

III Why Is It Relevant? 414

IV Mechanically Produced Statements Are Not Hearsay 415

V Evidence from the Internet 417

A Nonhearsay from the Internet 417

B Hearsay from the Internet 421

C Admissible Hearsay under Applicable Exceptions 422

VI A Reality Check on Hearsay 430

A The Internet as Part of Business or Government Records 430

B Web Pages Are Not Business Records of the Internet Service Provider (ISP) 433

C Government Records and Reports 433

VII Constitutional Dimensions of Hearsay 435

A The Accused's Right of Confrontation 436

1 Two-Prong Ohio v. Roberts Test 438

2 The "Testimonial" Standard of Crawford v. Washington 439

3 Why "Testimonial"? 441

4 Does the "Testimonial" Label Give an Absolute Right? 443

B Due Process 446

1 Due Process Before Crawford 446

a Excluding hearsay offered by an accused 446

b Excluding hearsay offered by the government 447

2 Due Process After Crawford 448

C Constitutional Wild Card 449

Chapter 8 Science and Technology 463

I Judicial Screening Under the Common Law 464

A The Advent of the Frye "General Acceptance" Test 465

B Expanding the Scope of Frye 466

II Judicial Screening Under the Federal Rules of Evidence 467

A Out of the Fryeing Pan, Into the Fire? 468

B The Logic of Daubert 468

III Consequences for E-science and E-technology 472

Chapter 9 Judicial Notice 477

I The Basics 478

II Judicial Notice Under the Federal Rules of Evidence 479

A Things Not Addressed in Rule 201 481

B Distinguishing Judicial Notice of Adjudicative Facts/Jury Notice of Facts/Judicial Notice of Legislative Facts 481

III Judicial Notice and E-commerce 483

IV Evidence from Web Pages: A Practical Assessment 484

Chapter 10 Future's Challenge 491

Index 495

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