Dave Donna asks: "Can anyone else out there point to some good sources of information about discovery and online material--even, specifically, weblogs?"
One thing worth mentioning up front is that public weblog posts would not necessarily need to be obtained through the formal discovery process in litigation, which involves serving requests, and receiving back responses and often materials (and perhaps more often a pile of objections...). If it's on the Web a party can simply track it down, without waiting for the other side to provide it. In order for a party to use such informally located material to help present its case, the material probably would have to be disclosed in advance to the other side -- but maybe not, as can be true of material used in arbitration or for impeachment -- and authenticated as evidence. Given the appellate direction my practice has taken in recent years I've never had to lay a foundation for Web material in court, but it seems like it would not be difficult.
That said, there's a wealth of material online about discovery of digital records. I quickly rounded up the following by using the site search functions at Law.com and FindLaw, and by running this (incidentally quite Dave-friendly) Google search. LazyBlawgers, please chime in too.
Sarbanes-Oxley Has Major Impact on Electronic Evidence, by Michele C.S. Lange: "No longer can e-mail and computer files be blindly destroyed. Instead, balance must be found between appropriate destruction of stale and nonregulated documents and adequate preservation of potentially significant documents."
The New New Evidence, by Paul Neal: "In fact, electronic audit trails can reveal much more than their paper counterparts. An electronic file leaves its own chronology of creation, modification and transmission. It may contain a history of drafts, rewrites, edits and comments between collaborators."
The Homesteader and the Gunslinger, by Robert Alan Eisenberg: "The existence of contemporaneous and spontaneous electronic communications and digital 'smoking guns' can be used as enormous leverage for the aggressive and savvy practitioner."
Discovery's Future Is Electronic, by Jason Hoppin: "Studies vary, but it's safe to say that more than 90 percent of all information generated in the business world is electronic and a comfortable majority of that information is never translated into paper form."
Discovering Electronic Evidence, by Ernie Svenson: "[E]lectronic evidence is veritable treasure trove of potential information. And it may even include information that has been presumably destroyed under a document non-retention policy."
E-Mail Mining: The Wages of Scandal, by Rafe Needleman: "Google does clustered searching on an even grander scale than Discovery Mining, although it doesn't (yet) offer a complete solution for the legal profession like Discovery does."
Beware the Digital Dos and Don'ts, by Blaine Kimrey: "Plaintiff's attorneys are becoming increasingly savvy about digital data, and unless your company has a policy for retention of digital data, you could find yourself in a discovery predicament regardless of how good your defense might be. In a case where your defense is rock solid, the last thing you want to do is pay a settlement simply because you inadvertently failed to retain relevant digital data and thus are facing possible sanctions."
An Electronic Voyage of Discovery, by Natalie Hanlon-Leh: "[R]emember that technology research is only part of the challenge: it’s just as important to understand the people with access to relevant information and how they work and process data."
Law.com's E-Discovery portal: "...Law.com looks at the emergence of e-discovery as a mainstream litigation tool and examines the unique issues that arise when gathering electronic evidence."
[Update] Also check out Kroll Ontrack's Law Library of resources on electronic discovery and computer forensics, including articles, case summaries, rules and statutes by location, and a glossary.
Sunday, February 16, 2003 at 8:48AM