E-Discovery Emergence In Civil Litigation
The law, as a means of administering dispute resolution and criminal accountability, must be able to adapt to revolutions of industry or technology. We are currently in the beginning years of a technological revolution that will only grow and continue to change the way humans live their lives. Computer and internet use have changed the way that people and business think and act. In todays judicial system, a case (either civil or criminal) is often decided by the evidence produced and discovered prior to trial. As computers have become the integral components of any successful business operation, the records on those computers have become more difficult to discover. Not only because of the difficulty of gaining access to an adversarys computer records, but also because many seasoned attorneys do not even know what to look for when they do gain access. Adding to the confusion is a lack of guiding procedural and case law. New methods of discovery have hampered older, traditional attorneys who carry with them the knowledge and experience from the days of paper and pen. The old rules are obsolete, and in todays world if you can not keep up with the technology and developments in the law then you will be left as ineffectual as the paper and pen you hold in your hand.
In response to the increased demands for structure in E-discovery, the ABA has proposed new Amendments to Civil Discovery Standards relating to the use of E-discovery. In part, these proposed amendments are aimed at providing guidance for evidence retention, destruction and production.
Electronic evidence presents many issues not previously experienced with more traditional forms of evidence. Certain forms of electronic evidence may be misleading and prejudicial to one party or the other, because one piece of evidence may only represent an initial draft of a document, containing information leading to the inference of liability. From a simple printout of electronic evidence, it can be extremely difficult to ascertain whether that evidence is the first or final draft, and whether that evidence has any impact on the dispute. In many ways electronic evidence provides for easier access because there is no need to search through cumbersome boxes of paper, but conducting the actual discovery process may exponentially increase the costs to both the producing and discovering parties. It takes substantial time to track down trails of information throughout a companys network. From a plaintiffs point of view, electronic evidence is difficult to destroy, as it takes an extremely complicated and sophisticated process to completely erase an electronic signature and metadata associated with the files. As demonstrated, electronic evidence may at times be more difficult to find, but conversely, it is also harder to destroy. This juxtaposition of qualities can make a process that appears more concise in theory, to actually become more cumbersome and costly when actually put into practice.
In response to these growing concerns, as part of its proposed amendments, the ABA has focused on E-discovery issues ranging from pre-trial conferences and electronically stored information to a partys failure to comply with discovery or to cooperate. Unnerving to many plaintiffs attorneys is proposed Amendment 37(f), which provides that:
"Unless a court order requiring preservation of electronically stored information is violated, the court may not impose sanctions under these rules on a party when such information is lost because of the routine operations of its electronic information system if the party took reasonable steps to preserve discoverable information."
This is perhaps the most troublesome (at least for plaintiffs attorneys), because it effectively creates a safe-harbor for the destruction of electronic evidence. Sanctions would be barred when information is destroyed as a result of routine destruction practices. The rule mentions nothing about what a reasonable destruction practice is or whether a party must freeze those practices once it learns that there is a potential for litigation. Other important proposed amendments include:
Rule 33(d). Under the traditional Rule 33, a party responding to an interrogatory could produce business records as a substitute for explicitly responding to the interrogatory. Under Amended Rule 33(d), the responding party will be permitted to produce electronic dates and records when responding to interrogatories provided that the requesting party can easily identify and locate the sought after information.
Rule 34(b). The new proposed amendments do not require an attorney to choose a particular evidentiary format when responding to discovery requests, but its mere mention suggests a policy toward favoring electronic evidence. When a requested production format is not specified, the responding party should produce evidence in the manner in which that information is ordinarily maintained or, alternatively, in a form that is reasonably easy to access and use.
Rule 26(b)(5)(B). This amendment addresses the inadvertent production of privileged or protected information. This rule will allow a party who unintentionally discloses the privileged information to retrieve it from the accidental receiving party unless that party can prove that they have a right to that information.
Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena electronically stored information pursuant to any of the other adopted amendments contained in the Rules.
These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the increasing preference for electronic discovery. The legal world is changing and those attorneys who are unable to keep up with the changes will be left in the dust. This move by the ABA should serve as a sign to those attorneys frightened by technology and advancements in the law. Electronic discovery is here to stay, unlike those who refuse to welcome the changes to the judicial discovery process.
This article was written by Nicholas Deleault, a Franklin Pierce Law Student. Nicholas writes select legal articles for the Law Firm of http://www.goldsteinandclegglaw.com/blog, a http://www.goldsteinandclegglaw.com.Sensitivity To Light
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In response to the increased demands for structure in E-discovery, the ABA has proposed new Amendments to Civil Discovery Standards relating to the use of E-discovery. In part, these proposed amendments are aimed at providing guidance for evidence retention, destruction and production.
Electronic evidence presents many issues not previously experienced with more traditional forms of evidence. Certain forms of electronic evidence may be misleading and prejudicial to one party or the other, because one piece of evidence may only represent an initial draft of a document, containing information leading to the inference of liability. From a simple printout of electronic evidence, it can be extremely difficult to ascertain whether that evidence is the first or final draft, and whether that evidence has any impact on the dispute. In many ways electronic evidence provides for easier access because there is no need to search through cumbersome boxes of paper, but conducting the actual discovery process may exponentially increase the costs to both the producing and discovering parties. It takes substantial time to track down trails of information throughout a companys network. From a plaintiffs point of view, electronic evidence is difficult to destroy, as it takes an extremely complicated and sophisticated process to completely erase an electronic signature and metadata associated with the files. As demonstrated, electronic evidence may at times be more difficult to find, but conversely, it is also harder to destroy. This juxtaposition of qualities can make a process that appears more concise in theory, to actually become more cumbersome and costly when actually put into practice.
In response to these growing concerns, as part of its proposed amendments, the ABA has focused on E-discovery issues ranging from pre-trial conferences and electronically stored information to a partys failure to comply with discovery or to cooperate. Unnerving to many plaintiffs attorneys is proposed Amendment 37(f), which provides that:
"Unless a court order requiring preservation of electronically stored information is violated, the court may not impose sanctions under these rules on a party when such information is lost because of the routine operations of its electronic information system if the party took reasonable steps to preserve discoverable information."
This is perhaps the most troublesome (at least for plaintiffs attorneys), because it effectively creates a safe-harbor for the destruction of electronic evidence. Sanctions would be barred when information is destroyed as a result of routine destruction practices. The rule mentions nothing about what a reasonable destruction practice is or whether a party must freeze those practices once it learns that there is a potential for litigation. Other important proposed amendments include:
Rule 33(d). Under the traditional Rule 33, a party responding to an interrogatory could produce business records as a substitute for explicitly responding to the interrogatory. Under Amended Rule 33(d), the responding party will be permitted to produce electronic dates and records when responding to interrogatories provided that the requesting party can easily identify and locate the sought after information.
Rule 34(b). The new proposed amendments do not require an attorney to choose a particular evidentiary format when responding to discovery requests, but its mere mention suggests a policy toward favoring electronic evidence. When a requested production format is not specified, the responding party should produce evidence in the manner in which that information is ordinarily maintained or, alternatively, in a form that is reasonably easy to access and use.
Rule 26(b)(5)(B). This amendment addresses the inadvertent production of privileged or protected information. This rule will allow a party who unintentionally discloses the privileged information to retrieve it from the accidental receiving party unless that party can prove that they have a right to that information.
Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena electronically stored information pursuant to any of the other adopted amendments contained in the Rules.
These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the increasing preference for electronic discovery. The legal world is changing and those attorneys who are unable to keep up with the changes will be left in the dust. This move by the ABA should serve as a sign to those attorneys frightened by technology and advancements in the law. Electronic discovery is here to stay, unlike those who refuse to welcome the changes to the judicial discovery process.
This article was written by Nicholas Deleault, a Franklin Pierce Law Student. Nicholas writes select legal articles for the Law Firm of http://www.goldsteinandclegglaw.com/blog, a http://www.goldsteinandclegglaw.com.Sensitivity To Light
1929 Crash Effects Market Stock
Mall Shopping Toronto
100 Tea Tree Oil
Memorial Medical Center Springfield Illinois
Hotel
Environmental Quality
12 B Food In Vitamin
06 Ea Rugby Sports
Fat French Chef Decor
Perfume
1 518
Hobby Toys
Dog Toy Box
Michigan Michigan State Football
Home Gift Party
1 Golf Volkswagen
Free Sample Business Thank You Letter
Lingerie Online Shopping Store
2nd Home Loan Mortgage Rate Refinance Refinance
Radio Show
Distrito Metropolitano De Quito
011 Boot Plaid Skirt
Mideval Costumes
Cafe Cool Irving River
Florida Hilton Hotel Orlando
New Balance 490 Walking Shoes
Nike Football Training Camp
Exercise Picture Pilates
Vegetarian Sports Nutrition
New Testament Paul
Major Depression With Psychotic Feature
Carolina Lawyer Mesothelioma South
Tea
Modern Wood Furniture
Liverpool Street Station London
Free E Gift Card
1 Code Friend Myspace Top
Richard Knoll
Low Rent Apartment
1 Day Design Spa
Bus In New Party York
1 5 Adjustable Mortgage Rate
Atkins Diet And Exercise
Cafe
0 Fitness Life T3
Direct Response Television Advertising
Catalonia House
100 America Best Place Retire
03 Sea Doo Sport Boats
Blank White T Shirt
Business Nc Phone System Wilmington
Northern Virginia Sedation Dentistry
Information Ireland Official Travel
Siam City Hotel Bangkok
1 5 Adjustable Gym In Little Tikes
Windows Controls
Building Crucible Fired Furnace Gas
Cafe Europa New York
Sing For Joy Lyric
Dallas Furniture Store
Black Tab
Life7
Safety Topic
Deere John New Toy
Fenway Mattress Posturepedic Sealy
Spider Man Ready Bed
Anniversary Baby Basket Basket Basket Christmas Gift Usa
Male Erection Pictures
Atlanta Pilates Studio
Cotton Shirt White
2008 Allen President Vice
Spain Golf Villas
Surface Finishing
Shirt
Red Scarf Girl
Psychic Fair Maine
Business For Sale In Houston Texas
Ipod Car Charger Fm Transmitter
Benign Mesathelioma Attorney Boston
Airline Flight To Honolulu
Chevy Chase Bank Headquarters
Hair Transplant Before After
Piano Dance Mat
Hair Nut Oil Palm
Mesothelioma
1864 1893 Fur Letter Trade Traill Willie
Pool
104 Fuel Oil Wholesale
Pa State Gun Law
50 Ohm Bnc
Crystal Report A Beginner Guide
Colorado Springs Hiking
Anaheim Course Driving
Vegetarian Butternut Squash Soup Recipe
Care Chicago Health In Job
007 Watch
City Of Montgomery Alabama
Middle Ages Farming
Alliance Resale Share Time
Travel Map Europe
Cadence Software
Exponential Marketing Mouth Mouth Runaway Sales Secret Through Trigger Word Word
00 221 Lund Se Sweden
Digital Erotik Iv Iv Satellite Tv
Western Kentucky Man Basketball
Atlas Kid World
Sprint Store In Chicago
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Life34
10 2006 Box Movie Office Top
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