Evidence Code Revisions and the Grimm/Brady Evidence Admissibility Chart

April 22, 2018

Great fanfare was provided for  the changes to the Federal Rules of Civil Procedure in December 2015. But not much attention has been given to the December 2017 changes to the Federal Rules of Evidence. Maybe that has to do with the disappearing trial, the fact that less than one percent of federal cases actually go to trial. Still, you need to know the rules of evidence admissibility, even if you are preparing for a trial that will never come. You need to collect and discover evidence in a way that it can be used, even if it is just in a motion for summary judgment.

Two New Subsections to Rule 902 on Self-Authenticating Evidence

In December 2017 two new subsections were added to Evidence Rule 902, subsections (13) and (14). They are designed to streamline authentication of electronically stored information (ESI). The goal is to eliminate the need to call a witness at trial to authenticate evidence, at least in most instances. Here are the two new provisions:

Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: . . .

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).

The Evidence Rules Committee Notes explain the background of these two new subsections.

Committee Notes on Rules—2017 Amendment

Paragraph (14). The amendment sets forth a procedure by which parties can authenticate data copied from an electronic device, storage medium, or an electronic file, other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing an authenticating witness for this evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure in which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.

Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by “hash value”. A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.

Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record of the certifying person testified, then authenticity is not established under this Rule.

The reference to the “certification requirements of Rule 902(11) or (12)” is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(14) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.

A certification under this Rule can only establish that the proffered item is authentic. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant.

A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.

The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country.

Also see: Paul Grimm, Gregory Joseph, Daniel Capra, Manual on Best Practices for Authenticating Digital Evidence; Authenticating Digital Evidence, 69 BAYLOR L. REV. 1 (2017).

Grimm/Brady Evidence Admissibility Chart

The rule change is a helpful addition to the litigator’s toolkit, but many challenges remain for attorneys handling electronic evidence. I agree with Kevin Brady, who is a top expert in the field of ESI evidence, who says that “the challenge for lawyers trying to authenticate digital evidence using the traditional rules of evidence can be confusing.” This may be an understatement! Kevin thinks that part of the challenge for attorneys arises from the rapidly-evolving landscape of data sources. He gives examples such as bitcoin, blockchain, smart contracts, social media, IoT, mobile devices, and cloud computing services. Moreover, the use of social media like Facebook, LinkedIn, Instagram and others continues to increase at an unbelievable rate and adds to the problem. Moreover, according to Business Insider, there are more people using the top four social messaging apps (WhatsApp, Messenger, WeChat, and Viber) than the top four social media apps (Facebook, Instagram, Twitter, and LinkedIn). According to Tech Crunch, Facebook’s Messenger alone has more than 1.3 billion monthly active users, and Instagram is officially testing a standalone messaging app, Direct.

Recognizing the problem Kevin Brady teamed up with U.S. District Court Judge Paul Grimm, the leading judicial expert in the field, to create the Grimm/Brady Evidence Admissibility Chart shown below.

The detailed reference chart provides discovery lawyers and trial attorneys with a quick reference guide for handling many different sources of ESI evidence. It covers Rule 104 to Rule 803(6) to Rule 901 and 902. The chart provides a step by step approach for authenticating digital information and successfully getting that information admitted into evidence.

The e-Discovery Team highly recommends that you carefully study this chart. Click on the photos and they will open in a larger size. Also suggest you download your own copy here: Grimm Brady Evidence Admission Chart 2018. Many thanks to Kevin Brady for helping me with this blog.



 


Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use

June 24, 2018

John Facciola was one of the first e-discovery expert judges to consider the adequacy of a producing parties keyword search efforts in United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). He first observed that keyword search and other computer assisted legal search techniques required special expertise to do properly. Everyone agrees with that. He then reached an interesting, but still somewhat controversial conclusion: because he lacked such special legal search expertise, and knew full well that most of the lawyers appearing before him did too, that he could not properly analyze and compel the use of specific keywords without the help of expert testimony. To help make his point he paraphrased Alexander Pope‘s famous line from An Essay on Criticism: “For fools rush in where angels fear to tread.

Here are the well-known words of Judge Facciola in O’Keffe (emphasis added):

As noted above, defendants protest the search terms the government used.[6]  Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?; 13 Ricn. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008).

Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.

Many courts have followed O’Keffe, even though it is a criminal case, and declined to step in and order specific searches without expert input. See eg. the well-known patent case, Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2012 US Dist LEXIS 163654 (ND Cal Nov 15, 2012). The opinion was by U.S. Magistrate Judge Paul S. Grewal, who later became the V.P. and Deputy General Counsel of Facebook. Judge Grewal wrote:

But as this case makes clear, making those determinations often is no easy task. “There is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work.”[9]

Unfortunately, despite being a topic fraught with traps for the unwary, the parties invite the court to enter this morass of search terms and discovery requests with little more than their arguments.

More recently, e-discovery expert Judge James Francis addressed this issue in Greater New York Taxi Association v. City of New York, No. 13 Civ. 3089 (VSB) (JCF) (S.D.N.Y. Sept. 11, 2017) and held:

The defendants have not provided the necessary expert opinions for me to assess their motion to compel search terms. The application is therefore denied. This leaves the defendants with three options: “They can cooperate [with the plaintiffs] (along with their technical consultants) and attempt to agree on an appropriate set of search criteria. They can refile a motion to compel, supported by expert testimony. Or, they can request the appointment of a neutral consultant who will design a search strategy.”[10] Assured Guaranty Municipal Corp. v. UBS Real Estate Securities Inc., No. 12 Civ. 1579, 2012 WL 5927379, at *4 (S.D.N.Y. Nov. 21, 2012).

I am inclined to agree with Judge Francis. I know from daily experience that legal search, even keyword search, can be very tricky, depends on many factors, including the documents searched. I have spent over a decade working hard to develop expertise in this area. I know that the appropriate searches to be run depends on experience and scientific, technical knowledge on information retrieval and statistics. It also depends on tests of proposed keywords; it depends on sampling and document reviews; it depends on getting your hands dirty in the digital mud of the actual ESI. It cannot be done effectively in the blind, no matter what your level of expertise. It is an iterative process of trial and errors, false positives and negatives alike.

Enter a Judge Braver Than Angels

Recently appointed U.S. Magistrate Judge Laura Fashing in Albuquerque, New Mexico, heard a case involving a dispute over keywords. United States v. New Mexico State University, No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017). It looks like the attorneys in the case neglected to inform Judge Fashing of United States v. O’Keefe. It is a landmark case in this field, yet was not cited in Judge Fashing’s order. More importantly, Judge Fashing did not take the advice of O’Keefe, nor the many cases that follow it. Unlike Judge Facciola and his angels, she told the parties what keywords to use, even without input from experts.

The New Mexico State University opinion did, however, cite to two other landmark cases in legal search, William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) by Judge Andrew Peck and Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) by Judge Paul Grimm. Judge Fashing held in New Mexico State University:

This case presents the question of how parties should search and produce electronically stored information (“ESI”) in response to discovery requests. “[T]he best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009). Cooperation prevents lawyers designing keyword searches “in the dark, by the seat of the pants,” without adequate discussion with each other to determine which words would yield the most responsive results. Id.

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.

Id. (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008)).

Although NMSU has performed several searches and produced thousands of documents, counsel for NMSU did not adequately confer with the United States before performing the searches, which resulted in searches that were inadequate to reveal all responsive documents. As the government points out, “NMSU alone is responsible for its illogical choices in constructing searches.” Doc. 117-1 at 8. Consequently, which searches will be conducted is left to the Court.

Judges Francis, Peck and Facciola

Judge Laura Fashing had me in the quote above until the final sentence. Up till then she had been wisely following the four great judges in this area, Facciola, Peck, Francis and Grimm. Then in the next several paragraphs she rushes in to specify what search terms should be used for what categories of ESI requested. Why should the Court go ahead and do that without expert advice? Why not wait? Especially since Judge Fashing starts her opinion by recognizing the difficulty of the task, that “there are well-known limitations and risks associated with them [keyword searches], and proper selection and implementation obviously involves technical, if not scientific knowledge.” Knowing that, why was she fearless? Why did she ignore Judge Facciola’s advice? Why did she make multiple detailed, technical decisions on legal search, including specific keywords to be used, without the benefit of expert testimony? Was that foolish as several judges have suggested, or was she just doing her job by making the decisions that the parties asked her to make?

Judge Fashing recognized that she did have enough facts to make a decision, much less expert opinions based on technical, scientific knowledge, but she went ahead and ruled anyway.

Although NMSU argues that the search terms proposed by the government will return a greater number of non-responsive documents than responsive documents, this is not a particular and specific demonstration of fact, but is, instead, a conclusory argument by counsel. See Velasquez, 229 F.R.D. at 200. NMSU’s motion for a protective order with regard to RFP No. 8 is DENIED.

NMSU will perform a search of the email addresses of all individuals involved in salary-setting for Ms. Harkins and her comparators, including Kathy Agnew and Dorothy Anderson, to include the search terms “Meaghan,” “Harkins,” “Gregory,” or “Fister” for the time period of 2007-2012. If this search results in voluminous documents that are non-responsive, NMSU may further search the results by including terms such as “cross-country,” “track,” “coach,” “salary,” “pay,” “contract,” or “applicants,” or other appropriate terms such as “compensation,” which may reduce the results to those communications most likely relevant to this case, and which would not encompass every “Meaghan” or “Gregory” in the system. However, the Court will require NMSU to work with the USA to design an appropriate search if it seeks to narrow the search beyond the four search terms requested by the United States.

Judge Fashing goes on to make several specific orders on what to do to make a reasonable effort to find relevant evidence:

NMSU will conduct searches of the OIE databases, OIE employee’s email accounts, and the email accounts of all head coaches, sport administrators, HR liaisons working within the Athletics Department, assistant or associate Athletic Directors, and/or Athletic Directors employed by NMSU between 2007 and the present. The USA suggests that NMSU conduct a search for terms that are functionally equivalent to a search for (pay or compensate! or salary) and (discriminat! or fair! or unfair!). Doc. 117-1 at 13. If NMSU cannot search with “Boolean” connectors as suggested, it must search for the terms “pay” or “compensate” or “salary” and “discriminate” or “fair” or “unfair” and the various derivatives of these terms (for example the search would include “compensate” and “compensation”). The parties are to work together to determine what terms will be used to search these databases and email accounts.

Judge Laura Fashing hangs her hat on cooperation, but not on experts. She concludes her order with the following admonishment:

The parties are reminded that:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

William A. Gross Const. Assocs., Inc., 256 F.R.D. at 136.

Conclusion

Of course I agree with Judge Fashing’s concluding reminder to the parties. Cooperation is key, but so is expertise. There is a good reason for the fear felt by Facciola’s angels. They wisely  knew that they lacked the necessary technical, scientific knowledge for the proper selection and implementation of keyword searches. I only wish that Judge Fashing’s order had reminded the parties of this need for experts too. It would have made her job much easier and also helped the parties. Sometimes the wisest thing to do is nothing, at least not until you have more information.

There is widespread agreement among legal search experts on such simplistic methods as keyword search. They would have helped. The same holds true on advanced search methods, such as active machine learning (predictive coding), at least among the elite. See TARcourse.com. There is still some disagreement on TAR methods, especially when you include the many pseudo experts out there. But even they can usually agree on keyword search methods.

I urge the judges and litigants faced with a situation like Judge Fashing had to deal with in New Mexico State University, to consider the three choices set out by Judge Francis in Greater New York Taxi Association:

  1. Cooperation with the other side and their technical consultants to attempt to agree on an appropriate set of search criteria.
  2. Motions supported by expert testimony and facts regarding the search.
  3. Appointment of a neutral consultant who will design a search strategy.

Going it alone with legal search in a complex case is a fool’s errand. Bring in an expert. Spend a little to save a lot. It is not only the smart thing to do, it is also required by ethics. Rule 1.1: Competence, Model Rules of Professional Conduct. The ABA Comment two to Rule 1.1 states that “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” Yet, in my experience, this is seldom done and is not something that clients are clamoring for. That should change, and quickly, if we are ever to stop wasting so much time and money on simplistic e-discovery arguments. I am again reminded of the great Alexander Pope (1688–1744) and another of his famous lines from An Essay on Criticism.

_______________

 

After I wrote this blog I did a webinar for ACEDS about this topic. Here is a one-hour talk to add to your personal Pierian spring.

 

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E-DISCOVERY FOR EVERYONE

January 7, 2017

edisc4everyone_front-cover-bigMy new book, released in late November 2016, is called e-Discovery for Everyone. The Foreword is by Judge Paul Grimm. This book is just as the title would suggest, an entry level, informal book on e-discovery, but one that includes some deep comments for experts too. e-Discovery for Everyone can be purchased online directly from the publisher, the ABA. You can also call ABA Customer Service at 800-285-2221 Monday-Friday between 9:00 AM and 6:00 PM ET. ABA members get a big discount. It should be available on Amazon in May 2017, but in the meantime, the ABA has the exclusive.

This book is written for everyone with an interest in e-discovery. It is an introductory to intermediate level book. I tried to make it a fun-read that will hold your interest and still have meat on the bones. My regular blog readers, who are nearly all advanced practitioners and experts, will already know the content and recognize many of the stories from the blog. Still, even you, the elite, might want to have a copy in your collection to cite from time to time (please!). Chapter Six on the 2015 Rule Amendments especially lends itself to that. I also have some good ethics chapters to cite to in references to the conduct of opposing counsel.

You might also want to buy several copies of e-Discovery for Everyone to give to your clients, customers, employees, associates, clerks, paralegals, students, colleagues and yes, even some of your friends (well, maybe not your good friends, more like your Facebook only type friends). It is a good way to explain to those outside of the bubble what it is you actually do for a living. It might even motivate newcomers into our fast-growing field. I hope so. I tried to make this an introductory book, but, at the same time, maintain the integrity and inherent complexity of the subject. My typical feeble efforts of humor and idealism are also included.

Foreword by Judge Paul Grimm

Judge_Paul_GrimmI was honored to have Judge Paul Grimm write the Foreword. I hope you will read his Foreword in full (hint – you will have to buy the book for that). He talks about the whole subject of e-discovery, new rules, digital explosion, the Bar, TAR, et al. The first half of Judge Grimm’s Foreword literally sets the stage for his two closing paragraphs about the book itself:

Enter Ralph Losey and the ABA with e-Discovery for Everyone, an introduction to e-Discovery that avoids over-technicality, without being substantively superficial, and manages to be interesting and at times even amusing. Ralph has been writing his e-Discovery Team blog since 2006, and e-Discovery for Everyone assembles many of his most helpful and recent blog posts in a collection that will be of value to newcomers to e-Discovery as well as seasoned practitioners. The book is written in a conversational style, and is divided into short chapters easily read in a relatively short sitting. Sprinkled throughout are very helpful references to cases, secondary sources and other materials that give the book depth beyond its relative brevity. A quick look at the table of contents shows an impressive inventory of the most important e-Discovery topics of the day: new methods of search and review, a discussion of the 2015 amendments to the Federal Rules of Civil Procedure, practical advice on litigation holds, how to evaluate the reasonableness of e-Discovery vendor bills, the advantages of transparency in selecting how to design a search for digital information, why cooperation during the e-Discovery process is essential to success, ethical issues associated with e-Discovery, and how to confront and control e-Discovery abuses.

e-Discovery for Everyone provides a welcome addition to the literature on e-discovery. Like a well-designed website, it is easy to navigate, informative, interesting, comprehensive without being overwhelming, and enjoyable.

Ralph_mosiac_7-16I blush just reading it. Hopefully those comments alone persuade you to go ahead and click now to order a copy of e-Discovery for Everyone. (By the way, in case you wonder about my motives, and these days, you should wonder about everyone’s, my total royalties for this book, if it becomes a best seller, would just about pay for a nice steak dinner. These books are labors of love my friends, not profit, and I have no say in setting the price.)

What Other Experts Say

I am happy with how the book turned out. The ABA has some great editors that cleaned up my usual errors. But who cares about my narcissistic thoughts? What do the real leaders in the field think? Here is my short, totally unbiased sample of reviews by a few people whom I admire greatly.

Facciola_shrugJohn M. Facciola, Chief Magistrate Judge for the United States District Court for the District of Columbia (retired); Adjunct Professor of Law, Georgetown Law School, shrugged his shoulders after I begged him for a review and had this to say:

Litigating lawyers must envy estate lawyers. When was the last time the rule against perpetuities changed? Since, these days, all discovery and litigation is electronic discovery and litigation, the poor litigator has to absorb technological and rules changes, new cases, and the very definition of their competence and ethical obligations. It is a good thing they have Ralph Losey and this collection of his blog posts. Ralph is utterly fearless and, unlike too many of his colleagues, welcomes technological changes and insists that their often drastic implications for the courts, the lawyers, and their society be considered soberly and realistically. He is as comfortable with the insights of social psychology, philosophy and mathematical reasoning as he is with metadata. And, the man refuses to be dull. His posts are full of song lyrics, truly corny jokes, and clever drawings; the man insists that we enjoy his work and our own and that we not be intimidated by our own future. Over the years he has forced us to look beyond our narrow concerns and try to see where all this change is taking us. He is a welcome man and this is a most welcome book.

That is my best review of all time. Thanks John.

ronald-hedgesJudge Ronald J. Hedges, Senior Counsel for Dentons (retired U.S. Magistrate Judge) was also persuaded to add a nice zinger:

Ralph Losey is an acknowledged “early starter” yet continuing thought leader in EDiscovery and all the complexities that go into that phrase. Anything he does is well worth the read!

ken_withersKenneth J. Withers, Deputy Executive Director, The Sedona Conference® has this typical erudite and highly original review. (If you figure out what it means, please write and tell me, but it does seem pretty good, aside from the whole itchy and scratchy whole cloth thing.)

I read the whole book yesterday afternoon and I think it’s a great anthology. I’d recommend it to anyone designing a training program for lawyers (and non-lawyers) or any individual who wants a solid introduction to the field.

If there were an award in the legal profession for ‘most creative iconoclast,’ I’d be honored to present it to Ralph Losey for his short, entertaining, and provocative lessons in e-discovery. In 19 easy-to-read essays, Ralph adroitly weaves pop culture, science, technology, and astute case law analysis into the warp and weft of ethical responsibility and justice. All of us should wear the resulting cloth every day in our practice, if for no other reason than it itches, which is a good thing.

Jason R. BaronJason R. Baron, Drinker Biddle & Reath LLP, Information Governance and eDiscovery Group, who was previously the Director of Litigation at the U.S. National Archives and Records Administration, is never at a loss for words. He had this to say, which includes his usual quasi-arcane literary references that keep Google so busy.

Ralph Losey has done it again: he is the Thomas Paine of e-discovery, with another excellent set of essays making the case that lawyers should follow “common sense” principles when dealing with the brave new world of electronically stored information.   These principles include, first and foremost, litigators working as a team with e-discovery lawyers and outside specialists to ensure that discovery obligations are met.  Second, they include lawyers recognizing that the newly amended Federal Rules of Civil Procedure emphasize that opposing counsel are expected to work cooperatively together to narrow areas of disagreement, and that lawyers should keep in mind that discovery should be proportional to the matters at stake in litigation. And third, lawyers should maintain competence on technical subjects such as how to search through large volumes of digital data.   This book is an easy (and fun to read) introduction to some of the most important topics in e-discovery.  There is no better “explainer-in-chief” of e-discovery writing today!

mark_williamsMark R. Williams, CEO & President of Kroll Ontrack, Inc., had this to say about e-Discovery for Everyone . The fact that my firm is a customer of Kroll Ontrack is, I am quite sure, completely irrelevant to his comments, at least under revised Rule 26(b)(1).

Attorneys can no longer claim to be confused by e-discovery! This book is a tremendous resource that makes e-discovery accessible for any legal professional, no matter past experiences with technology and the law – this is a “must-have” for any professional in the e-discovery industry, or trying to learn the industry.

John Tredennick

John Tredennick, Founder, CEO of Cayalyst Repository Systems, and past Chair of an ABA Law Practice Management Section, also handed me a good one-liner, for which all I can say is, well, at least I try.

Losey is a master at making e-discovery accessible and even fun. 

Thank you one and all for the kind remarks. The usual sized checks are in the mail.

Conclusion

ralph_smilingPlease give my latest book a try, e-Discovery for Everyone. I hope you will like it, and, if not, well …. you can always give it to opposing counsel. Suggest you tell them that the master plan for the case is in there, somewhere. Although the book is too lightweight for a doorstop, it is excellent to carry on a flight. Just pull it out and pretend to read it and the guy next to you will shut up instantly.

This is my fifth book on e-discovery, by the way. My first four books were:

As you can see, the ABA won the bidding war for my book this time (I had to pay them less). Believe it or not, I think all of these prior books are still in print and can be ordered too. The last ones in 2010 and 2011 are thick enough for paper weight status.

Want more information on e-Discovery For Everyone? Here is the Table of Contents:

About the Author

Foreword by United States District Court Judge Paul Grimm

Introduction

Chapter 1 We are at the Dawn of a Golden Age of Justice

Chapter 2 e-Discovery Team Commandos: the e-discovery side of the story of the Bin Laden raid

Chapter 3 Perspective on Legal Search and Document Review

Chapter 4 There Can Be No Justice Without Truth, and No Truth Without Search

Chapter 5 New Methods for Legal Search and Review

Chapter 6 The 2015 e-Discovery FRCP Rule Amendments and a Goldilocks Era of Proportional Discovery

Chapter 7 Spilling the Beans on a “Secret” of Many Trial Lawyers

Chapter 8 Four Secrets of Legal Search

Chapter 9 On Common Sense and Litigation Holds

Chapter 10 WRECK-IT RALPH: Things in e-discovery that I want to destroy!

Chapter 11 Confessions of a Trekkie

Chapter 12 Courts Struggle With Determining Reasonability of e-Discovery Vendor Bills

Chapter 13 $3.1 Million e-Discovery Vendor Fee Was Reasonable in a $30 Million Case

Chapter 14 Party Ordered to Disclose Where and How It Searched for ESI: You Can Expect This Kind of Order to Become Commonplace

Chapter 15 The Ethics of e-Discovery: An Overview of the Problem

Chapter 16 Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children

Chapter 17 E-Discovery Gamers: Join Me In Stopping Them

Chapter 18 Attorneys Admonished by Judge Nolan Not to “Confuse Advocacy with Adversarial Conduct” and Instructed on the Proportionality Doctrine

Chapter 19 The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses

Index

 


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