Chapter 8 - Discovery Process

What are the contents of a discovery plan as required under Rule 26 of the Federal Rules?

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

What types of disclosures must be made by the parties under Rule 26 of the Federal Rules?

- The name and, if known, the address and telephone number of each individual likely to have discoverable information - a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses - a computation of each category of damages claimed by the disclosing party - any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment

What are the 5 major methods of discovery?

1. Deposition 2. interrogatories 3. Request for the production of documents, ESI and tangible things or entry upon land for inspection and other purposes 4. request for physical or mental examinations 5. Request for admission

What 5 unethical practices are involved in the discovery process?

1. For an attorney to prevent another party from obtaining evidence 2. To destroy evidence before the other party can see it 3. To falsify evidence 4. To help someone else falsify evidence 5. For an attorney to make a discovery request that is unwarranted or to request more info than is really necessary for the case

The results of an effectively conducted discovery process may ...

1. encourage your attorney to proceed with the case 2. indicate that a settlement is on order 3. indicate that a voluntary dismissal is in order

Pretrial conference

A conference that is designed to make the process of conducting a lawsuit as efficient, simple, economical, and fair as possible. May involve: a simplification of the pleadings a limitation on the witnesses to be called at trial a narrowing of the issues to be considered at trial a simplification of the discovery process and so on.

Litigation response team

A group of highly trained individuals who are charged with the job of learning all there is to know about the client's ESI system, including all backup retrieval, formatting, deletion procedures, and so on.

Spoliation letter

A letter sent to an attorney by all opposing parties in a lawsuit placing those parties on notice that they should make an affirmative effort to preserve all ESI related to the case.

Chain of custody

A precise record of who received, handled, evaluated, and safeguarded the evidence in a legal proceeding.

Attorney-client privilege

A privilege that belongs to the client that requires the attorney to treat al information revealed to him or her, or to anyone employed by the attorney, as confidential. Because the privilege belongs to the client, rather than the attorney, only the client can give permission for the revelation of such confidential matters.

Work product privilege

A privilege that protects any information prepared by an attorney in a lawsuit if that info is prepared by the attorney, or anyone employed by the attorney, in the anticipation of litigation or to present at trial. AKA litigation privilege.

Privilege

A protection afforded by the law to prevent or limit the discovery of evidence created within a setting such as that provided by the attorney- client or the physician-patient relationship.

Request for admission

A request made by one party to another party in that lawsuit to admit to the truthfulness of a fact or the genuineness of a piece of evidence.

Request for a physical or mental examination

A request made by one party to another party in that lawsuit to undergo a physical or mental exam provided that the exam involves a condition that is at issue in the pending action.

Request for the production of documents, electronically stored info (ESI), and tangible things, or entry upon land for inspection and other purposes.

A request that a party or other individual involved in a lawsuit provide specific documents or other physical evidence to the party making the request.

Electronic discovery

A series of techniques and tools that involve the use of a wide variety of electronic resources to conduct discovery of electronically stored information in an efficient and economical way.

Predictive coding

A strategy by which a computer program uses a digital cataloguing process to examine a sampling of documents in order to adjust its search algorithm so that the computer will know what to look for as it determines which documents are relevant and which are not.

ESI center

A third party in a cloud storage agreement that is paid to receive, organize, and store data and to make it available to the ESI or data owner.

Webcam

A video camera that is connected to a computer by a USB port or other cable connector that facilitates the transmission of real-time images to a personal computer.

Cloud storage

A way for an institution to preserve ESI by eliminating the need to store the ESI on hard drives and flash drives and passing that responsibility to a third party, the ESI or data center.

Confessor-penitent privilege

AKA clerical privilege. Designed to protect the confidentiality of any communication between an individual and his/her confessor when the relationship involves spiritual support. The privilege belongs to the penitent rather than the confessor. However, the law also protects the confessor who has taken a religious oath not to reveal the content of such counseling sessions.

e-forensics

AKA computer forensics, cyber-forensics ... A strategy that employs certain processes to retrieve, examine, analyze, and authenticate ESI.

Clawback agreement

AKA non-waiver agreement. Allows the parties to agree that privileges can be asserted after evidence has been sent to the other party if the data retriever discovers that it has accidentally included privileged info in the evidence sent to the data requester.

Quick peek agreement

An agreement that allows the data retriever toggle evidence to the

Confidentiality agreement

An agreement that is designed to protect confidential information, trade secrets, and other secret data from being revealed during the discovery process in a lawsuit.

Web conference

An electronic conference setup that permits individuals at separate locations to meet online via the internet.

Videoconference

An electronic conference setup that permits several individuals at separate locations to discuss the planning of the case.

Webchat

An online process that permits individuals at separate locations to meet via the internet using personal computers, smart phones, or tablets.

Litigation hold

An order issued by an attorney to a client telling that client's employees and associates to stop the routine handling of all ESI, especially as that routine involves the deletion of ESI.

Deposition

An out-of-court question and answer session under oath, conducted in advance of a lawsuit as a part of the discovery process.

What types of records are included in (ESI) Electronically stored information?

App records Back-up tapes Blogs "Cookies" Data bases data-processing cards Digital recorders Documented image technology Embedded chips E-mail messages Metdata Fax machines Financial data GPS tracking records Home computers Input data Internet use records Instant messages Music files PDAs Photos Scanners Smart phones Statistical data System and network data Tablets Text messages Web based bulletin board postings Web based discussions Widget records Wireless reading devices (WRDs) Word processed documents Videos Voice mail

metadata

Computer datât about data, including such things as a tracking record that shows how the data was compiled, who compiled it, what it was used for, where it is stored, and so on.

Extant data

Computer generated records within a computer system that are hidden in the system, generally because they have been deleted.

Active data

Computer generated records within a computer system that are in current use.

Inactive data

Computer generated records within a computer system that are relatively up-to-date but are not used on a routine basis.

Back-up data

Computer generated records within a computer system that are stored as a precautionary measure.

Ephemeral data

Data that was created to self-destruct after a short period of time.

Legacy data

Data that was initially recorded on what is now an outmoded media format, such as a floppy disc.

Reasonably accessible ESI

ESI that can be retrieved without unwarranted difficulty and without unfair cost.

Not reasonably accessible ESI

ESI that cannot be retrieved without unwarranted difficulty or without unfair cost.

Paper data

ESI that has been reduced to a hard copy for filing purposes as a safeguard against the loss of that data caused by the breakdown of the computer system.

(ESI) Electronically stored information

Encompasses all computer generated records.

Medical privilege

Exists between a patient and a medical practitioner - designed to protect the patient's confidential communication with the practitioner. The privilege covers communications made between the patient and physicians, psychiatrists, podiatrists, psychologists, and dentists.

Residual data

Fragment of data that may be left over on a computer's hard drive.

Privilege against self incrimination

Granted by the Fifth Amendment - prevents a criminal defendant from being forced to testify against himself, but which can be, under certain circumstances, be used in a civil case.

Protective order

Issued by the court in a lawsuit that protects a party in the suit from revealing info, docs, data, or other types of evidence to another party who has previously requested the production of that evidence.

FRCP 1.351(c)

Party requesting discovery must pay for it: - before it's produced - prevents winning by bankrupting opponent

Evidence in a legal proceeding

Relevant and admissible testimony, ESI docs, photos, records, reports, objects, and other tangible items used by a party in a legal procedure to demonstrate the veracity of the party's claims to the finder of fact in the case.

ESI depositor

Same as ESI owner.

Physician-patient privilege

Same as medical privilege.

Online chat

Same as web-chat.

Online workshop

Same as web-chat.

Webinar

Same as web-chat.

Litigation privilege

Same as work-product privilege.

Social media

Sites that include a wide variety of communication and networking spots, such as FB, LinkedIn, StumbleUpon, Twitter, YouTube, Pinterest, WordPress, SnapChat, and MySpace, on which individuals record their thoughts, beliefs, events, photos, videos, and texts with great regularity.

Scope of discovery

The amount and type of evidence that can be sought during the discovery process.

Digital discovery

The discovery of electronically stored info (ESI).

e-discovery

The discovery of electronically stored info (ESI).

Discovery

The legal process by which the parties to a lawsuit search for facts relevant to a particular case.

What is discovery?

The legal process by which the parties to a lawsuit search for facts relevant to a particular case.

ESI owner

The owner of ESI in a cloud storage agreement.

ESI requester

The party in a lawsuit who requests data, including ESI, from the other party.

ESI retriever

The party to a lawsuit from whom data, including ESI, is requested during the discovery stage.

Disclosure

The process of revealing some info that was previously unknown or difficult to comprehend.

Common interest privilege

The rule that protects any communication that takes place between attorneys for different clients when those clients share a common interest.

Clerical privilege

The same as confessor-penitent privilege.

Computer forensics

The same as e-forensics.

Cyber-forensics

The same as e-forensics.

What factors must be considered when choosing among discovery methods?

Time to respond Information in response Used with a party or nonparty

Interrogatories

Written questions requiring written answers under oath and directed to a party, in which another party seeks information related to the litigation.

In the discovery process, the system involves an exchange of information among the parties using certain established discovery techniques, including ...

deposition, interrogatories, requests for real evidence, requests for physical and mental exams, and requests for admissions.

The discovery stage is very important not only because it reveals the facts in a suit, but also because

it helps shape the direction of the case.