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Managing Discovery of ESI: A Pocket Guide for Judges

 

A recently released pocket guide designed to help federal judges manage the discovery of electronically stored information (ESI) is available to CyberControls clients and monthly newsletter recipients. The guide covers many of the issues unique to discovery of ESI including scope, allocation of costs, production issues, waivers of privilege, work product protection, data preservation, and spoliation. Throughout 2007 Cybercontrols tracked federal and state rulings on e-discovery issues: it should be no surprise to readers that state courts across the country are rapidly applying many of the e-discovery amendments incorporated into the Federal Rules of Civil Procedure. The pervasive use of digital technology means that commercial disputes will, more often than not, involve items that were created, stored, or accessed, electronically. What you choose to do about ESI in your commercial cases is of significant importance. All throughout 2006, the courts have demonstrated a heightened attention to the issues surrounding electronic discovery and this pocket guide for judges is now available to you. As you will see in the guide’s conclusion page, 20, the author strongly encourages its readers (presumably judges), judges must require attorneys to take seriously their obligation to meet and confer under Rule 26(f) and to submit a meaningful discovery plan that addresses ESI issues, and judges must ensure that adequate disclosures are made pursuant to Rule 26(a)(1). This means that lawyers need to come prepared to discuss ESI issues and plans at the pretrial stage of a case. To be prepared, lawyers must devote sufficient time and expertise to assess their own client’s information systems along with all applicable litigation-hold procedures necessary to preserve relevant ESI. Once that’s taken care of, lawyers also need to envision what specific types of ESI should be expected to be produced by the opposing side in order to ask the right questions at the Rule 26(f) meet and confer.

Conducting forensic computer examinations often requires an intensive collaboration between the expert and legal counsel. CyberControls’ expertise has proven to be an invaluable resource to hundreds of legal professionals across the country. Contact Cybercontrols at 847-756-4890 or visit them at www.cybercontrols.net.

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