영문목차

PREFACE=iii

TABLE OF CASES=xvii

TABLE OF STATUTES=xxv

Introduction The 2006 Amendments to the Federal Rules of Civil Procedure Governing Discovery of Electronically Stored Information : Fitting Electronic Discovery Into the Overall Discovery Mix=1

FEDERAL DISCOVERY RULES=18

I. The Effect of Electronic Information on Discovery Practice=40

A. Explosion of Information and Increased Sources of Information=40

1. How Much New Information Is Created Each Year?=44

2. What Makes "E-Discovery" Different From Traditional Discovery?=46

3. How Electronic Information Is Stored and Retrieved=47

4. Has the Increasingly Computer-Based World of Discovery Increased or Decreased the Cost of Litigation?=55

5. Records Management as a Solution=57

6. Recommendations for Changes in Legal Culture and Practice=57

7. How Well Do Lawyers Understand the Technical Aspects of ESI?=61

B. Retrieving Backup Information=64

1. Backups=64

2. Typical Categories of Backups=64

3. Backup Locations=65

4. Types of Backup Schemas=67

5. Backup Rotation=69

6. How ESI Is Stored From a Custodian/Records Management Point of View=69

7. Fundamental Computer Forensic Issues=72

II. Preservation of Electronic Information=75

A. Records Retention Policies=75

Arthur Andersen LLP v. United States=75

Micron Technology, Inc. v. Rambus Inc. "Micron II"=80

Hynix Semiconductor Inc. v. Rambus Inc.=86

B. Implementing the Duty to Preserve=90

Zubulake v. UBS Warburg LLC "Zubulake V"=90

Pension Committee of the University of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al.=104

1. Do Non-Parties Have an Obligation to Preserve?=108

2. Preservation Obligations and Third-Party Subpoenas=109

3. Privacy and Preservation=110

4. Preservation Obligations Under Federal Law=111

C. Trigger Date=112

Zubulake v. UBS Warburg LLC "Zubulake IV"=112

Siani v. State University of New York at Farmingdale=120

1. When Does the Duty to Preserve Arise?=125

2. How Should Parties Identify When the Duty to Preserve Has Been Triggered?=125

3. Application to a Hypothetical Scenario=130

D. What Records Must Be Preserved? Accessible and Not Reasonably Accessible ESI=132

Zubulake v. UBS Warburg LLC "Zubulake IV"=132

Major Tours, Inc. v. Colorel=133

1. What ESI Must Be Preserved?=137

2. Is Mere Relevance Enough to Trigger the Duty to Preserve Not Reasonably Accessible ESI?=141

3. Should the Costs of Preserving Not Reasonably Accessible ESI Bear on the Duty to Preserve It?=142

4. What Impact, If Any, Should the Size of the Claim Have on the Scope of the Preservation Duty for Not Reasonably Accessible ESI?=143

5. Does Downgrading ESI From an Accessible to an Inaccessible Format Violate the Preservation Duty?=144

6. Does the Duty to Preserve Include Metadata Embedded in ESI?=145

E. Does ESI Include Ephemeral Data?=147

Columbia Pictures Industries v. Bunnell=147

Arista Records LLC v. Usenet.com, Inc.=156

1. Does the Scope of the Duty to Preserve Include Relevant But Ephemeral Data?=167

2. How Ephemeral Can ESI Be?=168

3. What Unique Issues Are Raised by Various Types of ESI?=174

F. Litigation Holds/Monitoring=176

Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al.=176

Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc.=178

1. What Should an Organization Do After the Duty to Preserve Arises?=188

2. How to Preserve Relevant Data?=189

3. Lifting Litigation Holds=194

G. Preservation Orders=194

Haraburda v. Arcelor Mittal USA, Inc.=194

Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp.=197

1. Seeking a Preservation Order=205

2. Issuing a Preservation Order=206

3. Implementing the Terms of=208

4. Content and Scope of Preservation Orders=209

H. Possession, Custody, or Control=210

In re NTL, Inc. Securities Litigation=210

Hatfill v. The New York Times Company=219

1. What Is Control?=221

2. Third-Party Data Stores("Cloud Computing")=227

3. What Is Possession?=232

Phillips v. Netblue, Inc.=232

I. Discovery of Social Media=237

Crispin v. Christian Audigier, Inc.=237

III. Cooperation and the Discovery Plan=253

A. Meet and Confer(Rule 26(f)) and Initial Scheduling Conference(Rule 16)=253

In re Seroquel Products Liability Litigation=253

1. Purposes of the Rule 26(f) Meet and Confer and its Relationship to Rule 16=264

2. The Role of the Judge in Discovery Planning=266

B. Local Rules and "Pilot Projects"=268

C. Cooperation in Practice=274

The Sedona Conference® Cooperation Proclamation=274

1. Is Cooperation Capitulation?=277

2. Cooperation in Search and Review Methodology=279

In re National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation=279

3. Dealing With the Uncooperative Client or Opposing Counsel=282

4. Preparing for the Rule 26(f) Conference : The "Jumpstart Outline"=284

The Sedona Conference® Jumpstart Outline(March 2010 Version)=284

IV. Data Collection=291

A. Searching All Appropriate Sources=291

Peskoffv. Faber=291

B. Collecting Data From Social Networking Sites=294

C. The Role of Outside Counsel=296

Qualcomm Inc. v. Broadcom Corp.=296

V. Production Issues=309

A. Rule 34 : Form of Production(Paper, Electronic, Native, or Other Forms)=309

D'Onofrio v. SFX Sports Group, Inc.=309

B. Search Methods=321

Victor Stanley, Inc. v. Creative Pipe, Inc.=321

William A. Gross Construction Associates, Inc. v. American Man-ufacturers Mutual Insurance Co.=324

1. Strengths and Weaknesses of Keyword Searching=326

2. Party Agreement on Search Terms=330

3. Should Expert Testimony Be Required to Explain to the Trier of Fact How Search Protocols Were Constructed?=332

United States v. O'Keefe=332

4. Should Search Protocols Be Negotiated?=335

C. Use of Technology for Search and Review=338

1. The Use of Selection Criteria and Filtering to Manage ESI=338

Clearone Communications, Inc. v. Chiang=338

2. The Use of Technology for Review=348

Treppel v. Biovail Corp.=348

D. Metadata=356

Williams v. Sprint/United Management Co.=356

Wyeth v. Impax Laboratories, Inc.=366

Lake v. City of Phoenix=367

Aguilar v. Immigration and Customs Enforcement=371

1. The Sedona Principles and Metadata=382

E. On-Site Inspections―Neutral Experts, Confidentiality Protection, Inspection Protocols=386

Ferron v. Search Cactus, L.L.C.=386

John B. v. Goetz=391

1. Denying Requests for On-Site Inspections=396

2. Granting Requests for On-Site Inspections=398

3. Is a "Neutral" Computer Forensics Expert Required?=399

4. A Protocol for the Examination of a Computer Hard Drive=400

F. Discovery From Rule 30(b)(6) Witness With Knowledge of Document Retention and Production=401

Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc.=401

G. Production From Non-Parties Pursuant to Rule 45=408

In re Subpoena Duces Tecum to AOL, LLC=408

1. How Can ESI Be Obtained From Nonparties?=412

2. Is the "Undue Burden or Cost" Test in Rule 45(c)(2)(B)(ii) the Same as the Test in Rule 45(d)(1)(D)?=413

3. Does a Third Party Have an Obligation to Preserve Evidence Relevant to Other Litigation?=414

4. Is Some Information Protected From Disclosure by Federal Law?=414

H. Cross-Border Production Issues=417

Strauss v. Credit Lyonnais, S.A.=419

In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation=429

Heraeus Kulzer, GmbH v. Biomet, Inc.=440

1. Columbia Pictures, Inc. v. Bunnell=446

2. Lyondell-Citgo Refining, LP v. Petroleos De Venezuela, S.A.=446

3. United States v. Vetco, Inc.=447

VI. Costs, Cost Sharing, and Cost Shifting=453

A. The Costs of E-Discovery=453

B. Cost Sharing and Cost Shifting Factors=458

1. Accessible Data―Rule 26(b)(2)(B)=458

Zubulake v. UBS Warburg LLC "Zubulake I"=458

2. Not Reasonably Accessible Data―Rule 26(b)(2)(B)=472

Zubulake v. UBS Warburg LLC "Zubulake III"=472

3. Additional Factors=482

Wiginton v. CB Richard Ellis, Inc.=482

C. When Must Not Reasonably Accessible Data Be Produced?=494

In re Weekley Homes, L.P., Relator=494

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC=502

1. Using Sampling to Determine Accessibility=508

2. When Should a Court Permit Discovery of ESI From a Not Reasonably Accessible Source?=514

3. Is ESI From a Not Reasonably Accessible Source Presumptively Not Discoverable?=515

4. How Should Counsel Address Rule 26(b)(2)(B) "Good Cause" Issues?=516

5. Is the Rule 26(b)(2)(B) Good Cause Standard Different From the Other Good Cause Standards in Rule 26?=517

6. Should Courts Weigh the "Marginal Utility" of Allowing Discovery of Information That Is Not Reasonably Accessible?=517

7. When Are Objections Waived Under the Two-Tier System?=518

8. Is a Requesting Party Entitled to Take Discovery to Test the Assertion That the Information It Seeks Is Not Reasonably Accessible?=519

9. Intentionally Impeding Accessibility=519

D. Shifting the Costs of Non-Parties Responding to Rule 45 Subpoenas=520

Tessera, Inc. v. Micron Technology, Inc.=520

1. Shifting Attorneys' Fees=524

2. Cooperation Between Parties and Non-Parties=525

DeGeer v. Gillis=525

E. Recovering E-Discovery Costs as a Prevailing Party=531

Race Tires America, Inc. v. Hoosier Racing Tire Corp.=531

1. Text of 28 U.S.C. §1920=542

2. What Is "Exemplification" in the Context of Electronic Discovery?=543

CBT Flint Partners, LLC v. Return Path, Inc.=543

3. E-Discovery Costs Not Allowed Under 28 U.S.C. §1920=544

VII. Spoliation and Sanctions=546

A. What Constitutes Spoliation?=546

1. Definition and Standard=546

Connor v. Sun Trust Bank=546

2. Culpability―Intentional, Bad Faith, Grossly Negligent, or Negligent Conduct=552

Residential Funding Corp. v. DeGeorge Financial Corp.=552

Stevenson v. Union Pacific Rr Co.=564

3. Prejudice=575

Greyhound Lines, Inc. v. Wade=575

Zubulake v. UBS Warburg LLC "Zubulake V"=576

B. Rule 37(e)―Good Faith Operation of an Electronic Information System=580

Doe v. Norwalk Community College=580

1. What Constitutes Bad Faith?=587

2. Other Decisions Citing Rule 37(e)=588

3. Interpreting Terms Used in Rule 37(e)=589

C. Default Judgments, Dismissal, and Adverse Inferences=590

Southern New England Telephone Company v. Global Naps, Inc.=590

Pension Committee of the University of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al.=602

Rimkus Consulting Group, Inc. v. Cammarata=607

1. Cases citing Pension Committee, 685 F. Supp. 2d 456(S.D.N.Y. 2010)=614

2. When Is a Default Judgment or Dismissal Sanction Appropriate for Spoliation?=615

3. When Is an Adverse Inference Jury Instruction Appropriate?=615

4. What Burden of Proof Must the Party Seeking Sanctions Meet?=616

5. What Sanctions, if any, Should Be Awarded for the Following :=617

D. Monetary Sanctions=617

Doctor John's, Inc. v. City of Sioux City, Iowa=617

E. Sanctioning a Party/Sanctioning Counsel=620

Qualcomm Inc. v. Broadcom Corp.=620

1. Should a Party Be Sanctioned Where the Fault Lies With the Party's Counsel?=636

2. Can Sanctions Be Imposed on a Party and Its Counsel Jointly and Severally?=636

VIII. Ethical Issues in E-Discovery=639

A. Duties of Candor, Competence, and Fairness=639

Wachtel v. Health Net, Inc.=639

1. Introduction=649

2. Rules of Professional Responsibility=650

B. Transparency in Electronic Discovery Promotes "Just, Speedy, and Inexpensive" Litigation=654

C. Metadata=660

1. Introduction=660

2. Ethical Concerns for the Producing Attorney=660

3. Ethics of Reviewing or "Mining" Metadata in Documents Received From Opposing Party=665

4. Summary=670

D. Supervision, Outsourcing, Litigation Support, and Lawyer Adjuncts=670

Qualcomm Inc. v. Broadcom Corp.=671

1. Obligations of Counsel=676

2. Responsibility of Company Management=678

3. Managing the Client-Lawyer Relationship=679

4. Supervising Lawyers and Subordinates=681

E. Ethical Issues in Discovery From Social Media Sources=685

The Philadelphia Bar Association, Professional Guidance Committee=685

New York State Bar Association, Committee on Professional Ethics=688

IX. Privilege Issues Arising During Electronic Discovery=692

A. The Risks of Waiver and the Costs of Pre-Production Privilege Review of Electronic Data=692

Hopson v. The Mayor and City Council of Baltimore=692

B. Agreements Between the Parties to Control the Cost of Pre-Production Privilege Review of Electronic Data=697

C. What Precautions Should Be Employed?=699

Victor Stanley, Inc. v. Creative Pipe, Inc.=699

D. Legislative Solution to Limit the Costs of Review of Electronic Data for Privilege: Federal Rule of Evidence 502=704

1. Introduction=704

2. Problems Addressed by Rule 502=705

3. The Text of Rule 502 of the Federal Rules of Evidence=705

4. Explanatory Note on Rule 502 Prepared by the Judicial Conference Advisory Committee on Evidence Rules(Part of the Legislative History of Rule 502)=707

5. Rule 502 and State Courts=712

6. Emerging Developments Under Rule 502=712

7. Application of Rule 502(b)―Inadvertence and Reasonable Efforts=719

Coburn Group v. Whitecap Advisors LLC=719

8. Application of Rule 502(d)―Court-Enforced Clawback Proce-dure=727

Rajala v. McGuire Woods, LLP=727

E. Ethical Questions Involved in Receiving Mistakenly Disclosed Privileged Information=733

In re Nitla S.A. De C.V.=733

X. Admissibility of Digital Evidence=739

A. Introduction=739

1. How Is Digital Evidence Used in Court?=739

2. Which Evidentiary Rules Are Most Often Invoked When Digital Evidence Is Proffered?=740

B. General Approach=749

U-Haul Int'l, Inc. v. Lumbermens Mutual Cas. Co.=749

C. Application of Authenticity Rules to Digital Evidence=754

United States v. Safavian=754

United States v. Tank=759

Authentication of Social Media Evidence=763

D. Applications of the Best Evidence Rule to Digital Evidence=767

United States v. Bennett=767

Vagenos v. LDG Financial Services, LLC.=771

E. Application of the Hearsay Rule(and Business Records Exception) to Digital Evidence=773

United States v. Salgado=773

F. Application of Federal Rule 403 to Digital Evidence=777

Bowoto v. Chevron Corp.=777

G. Application of Rules on Expert Testimony to Digital Evidence=782

In re Three Mile Island Litigation=782

United States v. Quinn=787

H. Expert Testimony on Electronic Discovery Issues=789

Nucor Corp. v. Bell and SeverCorr, LLC=790

I. Summary on Admissibility of Digital Evidence=802

Appendix

I. 2006 Advisory Committee Notes to Electronic Discovery Amendments=818

II. Uniform Rules Relating to the Discovery of Electronically Stored Information=833

III. Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information=839

IV. The Sedona Principles=860

V. Federal Rules of Evidence as Restyled, Effective December 1, 2011=863

VI. The Sedona Conference® Glossary : Commonly Used Terms for E-Discovery and Digital Information Management(Third Edition)=893