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Electronic evidence

April 2007 | Volume 43, Issue 4

Judges, lawyers, and the new rules
Ken Withers, Ronald Hedges, John Carroll, and Steve Leben

Four months ago, amended rules governing discovery of electronically stored documents took effect. The changes have helped clarify some aspects of e-discovery and created new gray areas in others. They also require judges to take a more active, managerial approach to the discovery process. In this roundtable discussion, three judges and an e-discovery expert discuss this evolving role and how the rules affect lawyers, courtroom procedures, and the way judges work.

The perfect preservation letter
Craig Ball

When asking the defense to protect certain types of electronic evidence, a standard, catchall preservation letter won’t work. You need to be specific, and you need to use the right terminology. The perfect preservation letter is both compelling and reasonable. Prepare it thoughtfully, and you’ll create an opportunity to educate your opponent, head off spoliation, and set the groundwork for reasonable discussion as the case progresses.

Sharpen your discovery from nonparties
Alan Blakley

At times you may need to get evidence from people who are connected to a case but aren’t parties to it; for instance, the operators of a store’s security system may have the videotapes you want to use as evidence in a premises case. Many of the rule changes for electronic discovery are incorporated in the subpoena rules for nonparties, meaning nonparties can be held to the same standards of document preservation as defendants. Learn the best techniques for getting evidence from nonparties without imposing undue burdens on them.

Competence and credibility in e-discovery
Charles R. Ragan and Lori Ann Wagner

The new electronic-discovery rules are as tough on plaintiffs as they are on defendants. Judges have always expected both sides to hold to high standards of professionalism in conducting discovery, but the new rules encourage sanctions—including dismissal—when lawyers fall short of the mark. Don’t let hardball tactics or loss of credibility, by you or your client, end your case before it’s resolved.

Feature

Try opening with a videotaped deposition
Robert J. Mongeluzzi and David L. Kwass

Using parts of a taped deposition in your opening can make a strong impression on jurors, who have been conditioned by watching television to demand information delivery that is fast-paced and that incorporates many different images and sounds. It also meets their expectations that attorneys will use the latest technology to make dynamic courtroom presentations. Defense lawyers will object on several grounds, but most courts have allowed the use of video depositions in opening, so you should be able to counter those objections and give your case a powerful start.