NITA Publications

Written and Electronic Discovery: Theory and Practice

A comprehensive and practical guide, Written and Electronic Discovery: Theory and Practice leads the reader through the entire discovery process - from the crucial planning stages through the initial 26(f) planning conferences, mandatory disclosures (including experts), interrogatories, production, depositions, admissions, subpoenas, and the ultimate use of the fruits of discovery at trial.

Authors Alan Blakley, John Young, and Terri Zall give special attention to the area of electronically stored information - including issues of retaining and accessing electronic information, expense of discovery versus value in litigation, cost-shifting, metadata, working with IT departments and other computer experts, and automated litigation support.

With its unique blend of theory and practical advice, this book is a must for any litigation professional.

• >> TABLE OF CONTENTS
  CONTENTS
  
  CHAPTER ONE: PREPARING FOR WRITTEN DISCOVERY
  1.01 Introduction and Scope of Chapter
  1.02 Planning Discovery
  1.03 Advantages and Disadvantages of Types of Written Discovery
  1.04 Duty to Preserve Evidence
  1.05 Mandatory Disclosures
  1.06 Scope of Written Discovery
  1.07 Answers and Objections to Written Discovery
  1.08 Protective Orders
  1.09 Certifying and Signing
  1.10 Supplementation
  1.11 Importance of Local Rules
  1.12 Important Points
  
  CHAPTER TWO: INTERROGATORIES
  2.01 Rules Governing Interrogatories
  2.02 Use of Rule 33
  2.03 General Interrogatories
  2.04 Special Subject Matter Interrogatories
  2.05 Privileges
  2.06 Answers and Objections to Interrogatories
  2.07 Important Points
  
  CHAPTER THREE: DOCUMENTS
  3.01 Rules Governing Production of Documents: Introduction
  3.02 Use of Rule 34
  3.03 Production of Documents
  3.04 Requests to Parties
  3.05 Requesting Documents Outside Court's Jurisdiction
  3.06 Responses
  3.07 Privileges
  3.08 Important Points
  
  CHAPTER FOUR: ELECTRONIC INFORMATION
  4.01 Introduction
  4.02 Anticipation of Litigation
  4.03 Mandatory Disclosures
  4.04 Preparing for Discovery
  4.05 Responding to Discovery
  4.06 Proliferation of Electronic Information
  4.07 Important Points
  
  CHAPTER FIVE: USING WRITTEN DISCOVERY IN DEPOSITIONS
  5.01 Use of Written Discovery
  5.02 Use of Interrogatories to Streamline Depositions
  5.03 Requests for Admission
  5.04 Using Documents at Deposition
  5.05 Depositions to Acquire Documents
  5.06 Electronic Information
  5.07 Other Documents at Depositions
  5.08 Deposition of Experts
  5.09 Written Discovery Following Depositions
  5.10 Important Points
  
  CHAPTER SIX: ADMISSIONS
  6.01 Rules Governing Admissions
  6.02 Use of Rule 36
  6.03 Requests for Admission
  6.04 Requests for Admission of Genuineness of Documents
  6.05 Requests for Admission of Facts
  6.06 Responses to Requests for Admissions
  6.07 Important Points
  
  CHAPTER SEVEN: SUBPOENAS TO PERSONS NOT PARTIES
  7.01 Rules Governing Subpoenas
  7.02 Use of Rule 45
  7.03 Response to Subpoenas
  7.04 Important Points
  
  CHAPTER EIGHT: MANAGING DISCOVERY WITH AUTOMATED LITIGATION SUPPORT
  8.01 Introduction: Automated Litigation Support
  8.02 The Paper-Based Litigation Support Process
  8.03 Collection of Documents
  8.04 Logging Documents
  8.05 Document Imaging and OCR Conversion
  8.06 Document Coding
  8.07 Electronic Litigation Support Processing
  8.08 Production Formats
  8.09 Litigation Support Software Applications
  8.10 Automated Litigation Support Survey
  
  CHAPTER NINE: DISCOVERY SANCTIONS
  9.01 Rules Governing Discovery Sanctions
  9.02 Court's Inherent Authority
  9.03 Use of Rule 37
  9.04 Failure to Comply with Orders
  9.05 Expense of Failure to Admit
  9.06 Initial Disclosures and Responses to Written Discovery
  9.07 Appeal from Orders
  9.08 Important Points
  
  CHAPTER TEN: USING WRITTEN DISCOVERY AT TRIAL
  10.01 Using Rules of Evidence to Admit Written Discovery at Trial
  10.02 Objections During Discovery
  10.03 Making Record of Objections at Trial
  10.04 Categories of Error
  10.05 Exception to General Rules on Objections
  10.06 Relationship Between Federal Rules of Civil Procedure and Federal Rules of Evidence
  10.07 Motions in Limine
  10.08 Interrogatories to Parties
  10.09 Admissions
  10.10 Computer-Generated Documents
  10.11 Business Records
  10.12 Introducing Public Records into Evidence
  10.13 Important Points
  
  CHAPTER 11: SAMPLE REQUESTS FOR DISCOVERY AND OTHER FORMS
  11.01 Tactics for Written Discovery
  11.02 Checklist: Admissibility of Evidence
  11.03 Required Disclosures
  11.04 Drafting Pointers for Initial Disclosures
  11.05 Initial Disclosures Under Rule 26(a)(1)
  11.06 Expert Disclosures Under Rule 26(a)(2)(B)
  11.07 Discovery Planning Meeting Under Rule 26(f)
  11.08 Sample Stipulations on Electronic Discovery
  11.09 Sample Stipulation on Authentication and Foundation
  11.10 Sample Report of Rule 26(f) Conference (Fed. R. Civ. P., Form 52)
  11.11 Preliminary Pretrial Conference Under Rule 16
  11.12 Drafting Interrogatories and Responses
  11.13 Drafting Document Requests and Responses
  11.15 Drafting Pointers for Admission Requests
  11.16 Motions to Compel
  11.17 Electronic Discovery: Defense of the Discovery Process
  11.18 Sample: Rule 26(a)(1) Initial Disclosure of Relevant and Discoverable Computer Data
  11.19 Sample: Rule 26(b)(5) Privilege Log
  11.20 Sample: Report of Rule 26(f) Conference of Counsel
  11.21 Sample: Rule 30(b)(6) "Records Keeper" Deposition Notice
  11.22 Sample: Federal Subpoena
  
  Appendix A
  SELECTED FEDERAL RULES OF CIVIL PROCEDURE
  I. DEPOSITIONS AND DISCOVERY
  II. TRIALS
  
  Appendix B
  Ethics and Professionalism in E-Discovery
  I. Introduction
  II. Obligations to Learn About Electronic Information
  III. Relationships with Clients through Electronic Information
  IV. Relationship with Other Counsel
  V. Conclusion
  
  INDEX
  
  CD CONTENTS
  
  Appendix C
  Federal Rules of Evidence
  
  Appendix D
  Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention)
  
  Appendix E
  Extraterritorial Discovery
  
  Sample Forms from Chapter 11

• >> AUTHORS
  
  
  • Alan F. Blakley
    
    
    • Alan Blakley is a senior consultant at 3rd Coast Consultants, a Houston, Texas, based legal consulting company that helps companies determine solutions to their data and litigation needs. Mr. Blakley works with lawyers to help them determine the best ways to present electronic discovery in litigation, and with corporations and IT professionals to manage information, limit risks, increase security and save money. He works with all three to improve their communication and unify their approach to data as it applies to the law. Mr. Blakley has authored and co-authored a number of books, articles and continuing legal education programs on electronic information and other litigation topics. Prior to joining 3rd Coast Consultants, Mr. Blakley was a professor at Thomas M. Cooley Law School in Grand Rapids, Michigan, and at the University of Montana School of Law. He has also had his own successful law practice.

  
  

  • John H. Young
    
    
    • John H. Young practices law in the areas of administrative law, regulatory policy litigation and corporate litigation. He is also recognized as one of the nation's top electoral recount and dispute resolution lawyers. He is counsel to Sander, Reiff and Young, P.C. Formerly, Mr. Young was a partner at Porter, Wright, Morris and Arthur, Washington, D.C., where he was responsible for commercial litigation and technology practice groups. He also has worked as counsel to several political committees and commercial and minority businesses. Mr. Young has spent time working with government, including as general counsel to the Office of Administration, Executive Office of the President; on the U.S. Secretary of State's Advisory Committee on Private International Law; as trial counsel at the U.S. Department of Labor; as assistant attorney general of Virginia; and Counsel to the Virginia State Board of Elections. He has served on the boards of many professional law organizations and is an adjunct professor at William and Mary College School of Law. He has held the same position at the George Mason School of Law.

  
  

  • Terri A. Zall
    
    
    • Terri Zall is an Associate General Counsel at the Department of Justice in Washington, D.C. Practicing federal sector employment law, Ms. Zall supervises a staff of attorneys who defend the agency before the Equal Employment Opportunity Commission, Merit Systems Protection Board, and in district court.