Written and Electronic Discovery: Theory and Practice

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A comprehensive and practical guide, Written and Electronic Discovery: Theory and Practice leads the reader through the entire discovery process - from the crucial planning stages through the initial 26(f) planning conferences, mandatory disclosures (including experts), interrogatories, production, depositions, admissions, subpoenas, and the ultimate use of the fruits of discovery at trial.

Authors Alan Blakley, John Young, and Terri Zall give special attention to the area of electronically stored information - including issues of retaining and accessing electronic information, expense of discovery versus value in litigation, cost-shifting, metadata, working with IT departments and other computer experts, and automated litigation support.

With its unique blend of theory and practical advice, this book is a must for any litigation professional.

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Table of Contents

CONTENTS


CHAPTER ONE: PREPARING FOR WRITTEN DISCOVERY


1.01 Introduction and Scope of Chapter

1.02 Planning Discovery

1.03 Advantages and Disadvantages of Types of Written Discovery

1.04 Duty to Preserve Evidence

1.05 Mandatory Disclosures

1.06 Scope of Written Discovery

1.07 Answers and Objections to Written Discovery

1.08 Protective Orders

1.09 Certifying and Signing

1.10 Supplementation

1.11 Importance of Local Rules

1.12 Important Points


CHAPTER TWO: INTERROGATORIES

2.01 Rules Governing Interrogatories

2.02 Use of Rule 33

2.03 General Interrogatories

2.04 Special Subject Matter Interrogatories

2.05 Privileges

2.06 Answers and Objections to Interrogatories

2.07 Important Points


CHAPTER THREE: DOCUMENTS

3.01 Rules Governing Production of Documents: Introduction

3.02 Use of Rule 34

3.03 Production of Documents

3.04 Requests to Parties

3.05 Requesting Documents Outside Court's Jurisdiction

3.06 Responses

3.07 Privileges

3.08 Important Points


CHAPTER FOUR: ELECTRONIC INFORMATION

4.01 Introduction

4.02 Anticipation of Litigation

4.03 Mandatory Disclosures

4.04 Preparing for Discovery

4.05 Responding to Discovery

4.06 Proliferation of Electronic Information

4.07 Important Points


CHAPTER FIVE: USING WRITTEN DISCOVERY IN DEPOSITIONS

5.01 Use of Written Discovery

5.02 Use of Interrogatories to Streamline Depositions

5.03 Requests for Admission

5.04 Using Documents at Deposition

5.05 Depositions to Acquire Documents

5.06 Electronic Information

5.07 Other Documents at Depositions

5.08 Deposition of Experts

5.09 Written Discovery Following Depositions

5.10 Important Points


CHAPTER SIX: ADMISSIONS

6.01 Rules Governing Admissions

6.02 Use of Rule 36

6.03 Requests for Admission

6.04 Requests for Admission of Genuineness of Documents

6.05 Requests for Admission of Facts

6.06 Responses to Requests for Admissions

6.07 Important Points


CHAPTER SEVEN: SUBPOENAS TO PERSONS NOT PARTIES

7.01 Rules Governing Subpoenas

7.02 Use of Rule 45

7.03 Response to Subpoenas

7.04 Important Points


CHAPTER EIGHT: MANAGING DISCOVERY WITH AUTOMATED LITIGATION SUPPORT

8.01 Introduction: Automated Litigation Support

8.02 The Paper-Based Litigation Support Process

8.03 Collection of Documents

8.04 Logging Documents

8.05 Document Imaging and OCR Conversion

8.06 Document Coding

8.07 Electronic Litigation Support Processing

8.08 Production Formats

8.09 Litigation Support Software Applications

8.10 Automated Litigation Support Survey


CHAPTER NINE: DISCOVERY SANCTIONS

9.01 Rules Governing Discovery Sanctions

9.02 Court's Inherent Authority

9.03 Use of Rule 37

9.04 Failure to Comply with Orders

9.05 Expense of Failure to Admit

9.06 Initial Disclosures and Responses to Written Discovery

9.07 Appeal from Orders

9.08 Important Points


CHAPTER TEN: USING WRITTEN DISCOVERY AT TRIAL

10.01 Using Rules of Evidence to Admit Written Discovery at Trial

10.02 Objections During Discovery

10.03 Making Record of Objections at Trial

10.04 Categories of Error

10.05 Exception to General Rules on Objections

10.06 Relationship Between Federal Rules of Civil Procedure and Federal Rules of Evidence

10.07 Motions in Limine

10.08 Interrogatories to Parties

10.09 Admissions

10.10 Computer-Generated Documents

10.11 Business Records

10.12 Introducing Public Records into Evidence

10.13 Important Points


CHAPTER 11: SAMPLE REQUESTS FOR DISCOVERY AND OTHER FORMS

11.01 Tactics for Written Discovery

11.02 Checklist: Admissibility of Evidence

11.03 Required Disclosures

11.04 Drafting Pointers for Initial Disclosures

11.05 Initial Disclosures Under Rule 26(a)(1)

11.06 Expert Disclosures Under Rule 26(a)(2)(B)

11.07 Discovery Planning Meeting Under Rule 26(f)

11.08 Sample Stipulations on Electronic Discovery

11.09 Sample Stipulation on Authentication and Foundation

11.10 Sample Report of Rule 26(f) Conference (Fed. R. Civ. P., Form 52)

11.11 Preliminary Pretrial Conference Under Rule 16

11.12 Drafting Interrogatories and Responses

11.13 Drafting Document Requests and Responses

11.15 Drafting Pointers for Admission Requests

11.16 Motions to Compel

11.17 Electronic Discovery: Defense of the Discovery Process

11.18 Sample: Rule 26(a)(1) Initial Disclosure of Relevant and Discoverable Computer Data

11.19 Sample: Rule 26(b)(5) Privilege Log

11.20 Sample: Report of Rule 26(f) Conference of Counsel

11.21 Sample: Rule 30(b)(6) "Records Keeper" Deposition Notice

11.22 Sample: Federal Subpoena


Appendix A

SELECTED FEDERAL RULES OF CIVIL PROCEDURE

I. DEPOSITIONS AND DISCOVERY

II. TRIALS


Appendix B

Ethics and Professionalism in E-Discovery

I. Introduction

II. Obligations to Learn About Electronic Information

III. Relationships with Clients through Electronic Information

IV. Relationship with Other Counsel

V. Conclusion


INDEX


CD CONTENTS


Appendix C


Federal Rules of Evidence


Appendix D

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention)


Appendix E

Extraterritorial Discovery


Sample Forms from Chapter 11