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e-Discovery
E-discovery for Everyone-The EDna Challenge, by
Craig Ball.
The vast majority of cases filed, developed and tried in the United States are not multimillion dollar dust ups between big companies. The evidence in modest cases is digital, too. Solo and small firm counsel like Edna need affordable, user-friendly tools designed for desktop ediscovery-- tools that preserve metadata, offer efficient workflow and ably handle the common file formats that account for nearly all of the ESI seen in day-to-day litigation.
Federal.
8 pages. Written:
2010. Added:
3-13-2010.
Firm Publication
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Civil Trial Practice
Anatomy of an "Award-Winning" Trial Exhibit , by
Ted Brooks .
The actual exhibits admitted into evidence should no tjust be the “pretty” demonstratives typically used for opening statements or closing arguments.
Non-Specific.
4 pages. Written:
2009. Added:
2-18-2010.
CAOC Forum Magazine
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Evidence
Top Ten Tips for Creating Professional Trial Presentations Using PowerPoint, by
Ted Brooks.
Delivering an opening statement or closing argument without any visual
accompaniment could certainly can confuse or at least fail to impress no
matter how eloquent or good looking you are. On the other hand, over-thetop
or excessively flashy presentations could have a negative effect as well.
A safe, but effective, approach is to use designs and colors proven over
time in the courtroom, bearing in mind that the media is not the message.
As long as it looks and feels like it belongs in court, the jury will accept and
appreciate it.
Non-Specific.
4 pages. Written:
2009. Added:
7-22-2009.
TechnoLawyer
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Evidence
Authenticating Digital Evidence, by
Stephen Mason.
Proving the authenticity of records initially concerned the integrity of paper-based records, but today it includes records in digital format used in e-discovery. Several factors must be taken into account when laying the evidential foundations for submitting evidence in digital format into U.S. courts.
Non-Specific.
1 pages. Written:
2008. Added:
6-22-2009.
iltanet.org
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Evidence
Custodian Self-Collection - The Challenges and Consequences, by
Jack Halprin.
While custodian self-collection seems logical, as custodians should know where their documents and electronically-stored information (ESI) are located, unfortunately it has not found much favor in the courts. To address the challenges and consequences associated with custodian self-collection, counsel should consider employing a systemized, repeatable and defensible enterprise-wide process to reduce the risk of spoliation during collections.
Non-Specific.
1 pages. Written:
2008. Added:
6-22-2009.
iltanet.org
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e-Discovery
e-Discovery & Preservation Obligations - Getting Ahead of the Game!, by
Mary Mack, Esq.
Legal holds and preservation are the hot topic at most of the electronic discovery conferences these days. When faced with anticipated or pending litigation or government investigations, corporations have an obligation to preserve potentially relevant evidence, specifically preventing spoliation or the willful or inadvertent destruction or alteration of relevant documents.
Non-Specific.
4 pages. Written:
2009. Added:
6-03-2009.
FindLaw.com
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e-Discovery
e-Discovery & Preservation Obligations - Getting Ahead of the Game!, by
Mary Mack, Esq.
Legal holds and preservation are the hot topic at most of the electronic discovery conferences these days. When faced with anticipated or pending litigation or government investigations, corporations have an obligation to preserve potentially relevant evidence, specifically preventing spoliation or the willful or inadvertent destruction or alteration of relevant documents.
Non-Specific.
4 pages. Written:
2009. Added:
5-31-2009.
FindLaw.com
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Criminal Procedure
Potential Post-Hudson Pitfalls, by
Richard L. Holcomb.
This article addresses whether suppression of evidence will continue to be required in order to deter illegal conduct of law enforcement officers during the execution of a search warrant, as opposed to the procurement or facial deficiency of the search warrant.
Non-Specific.
1 pages. Written:
2007. Added:
3-16-2009.
nacdl.org
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Criminal Procedure
How the Adam Walsh Act Restricts Access to Evidence, by
Ian N. Friedman; Kristina Walter.
The purpose of this article is to examine § 3509(m) of the Adam Walsh Act and how it impedes a defense attorney’s ability to prepare for a trial involving charges of possession of child pornography. The article will examine the rationale for the amendments to 18 U.S.C. § 3509 and will discuss the use of experts in the defense of computer-based child pornography cases. Finally, the article will highlight the legal problems posed by § 3509(m) and comment on current case law, including the pending case of United States v. Knellinger.
Non-Specific.
1 pages. Written:
2007. Added:
3-16-2009.
nacdl.org
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Criminal Procedure
Federal Law Issues in Obtaining Evidence Broad - Part One, by
Linda Friedman Ramirez.
Despite the growing importance of transnational issues in domestic prosecutions, defense counsel must overcome significant disadvantages when seeking to obtain evidence abroad or raising extraterritorial due process claims. This article seeks to introduce defense attorneys to some of the case law relevant to these issues. Attorneys are encouraged to refer to other resources to be most effective in securing foreign evidence.
Non-Specific.
1 pages. Written:
2007. Added:
3-15-2009.
nacdl.org
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Criminal Procedure
Federal Law Issues in Obtaining Evidence Abroad -- Part Two, by
Linda Friedman Ramirez.
It is important for counsel to begin the process as soon as possible so that he or she can seek judicial intervention in the event of any unreasonable delay or denial. Moreover, this allows counsel to make an appropriate record for purposes of appeal if the government has unreasonably refused to grant a visa. In addition, if there is any possibility that the witness does not, in fact, want to testify and fails to cooperate with the visa application process, the defendant will be in a better position to argue that the witness is “unavailable” for purposes of Rule 15(a) of the Federal Rules of Criminal Procedure.
Non-Specific.
1 pages. Written:
2007. Added:
3-09-2009.
nacdl.org
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e-Discovery
Default Judgment: The Ultimate Sanction For Spoliation, by
Kramer Levin.
Sanctions that courts may impose for spoliation of evidence
are well-documented, and range from costs and attorneys’
fees to adverse inference jury instructions. But the ultimate
spoliation sanction is the award of a default judgment against
the spoliating party.
Federal.
5 pages. Written:
2008. Added:
2-13-2009.
Kramer Levin
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e-Discovery
A Survey of Sanctions Awarded for E-Discovery Violations, by
David A. Kotler.
E-discovery is here to stay, and the e-discovery
sanctions opinions that continue to come out
sound a warning that litigators would do well to
heed: Become an expert on the technical aspects
of e-discovery, become an expert on your client’s
IT infrastructure and document retention practices,
and be careful not to make mistakes that
will prejudice the opposing party.
Federal.
3 pages. Written:
2008. Added:
2-11-2009.
Journal of the Trial Evidence Committee
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e-Discovery
The “Zubulake Duty” Challenge and the e-Discovery Team Solution, by
Ralph C. Losey.
United States District Court Judge Shira A. Scheindlin, one of the leading jurists
in the field of electronic discovery, contends that all attorneys who litigate have
an affirmative duty to understand their clients’ computer systems sufficiently to
know where potential electronic evidence is stored, or affiliate with an attorney
who does. Judge Scheindlin even specifies how she expects outside counsel to
fulfill that duty. She requires them to speak directly with the key players in a
lawsuit about their computer files and other electronic documents and to speak
directly with their clients’ IT personnel about their data retention architecture. This
duty presents a challenge of epic proportions to most attorneys litigating cases
today.
Non-Specific.
11 pages. Written:
2008. Added:
2-11-2009.
DiscovertheWave
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Evidence
Rock Stars, Lies, and Videotape: Using Videoed Deposition Testimony at Trial, by
Christina L. Dixon and Jennifer K. Hohnstein.
Using clips of video depositions can provide a powerful tool for highlighting crucial comments and captivating the jury’s attention, the tool should be used sparingly to maintain its value. In the authors’ experience, juries have seemed riveted by video clips that directly impeached an opposing party or that contained dramatic non-verbal communication.
Federal.
2 pages. Written:
2008. Added:
2-10-2009.
Proof, the journal of the Trial Evidence Committee
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Evidence
The Open Door to Admissible Evidence: Curative Admissibility, by
John McCahey .
Reviewing federal appellate decisions addressing
curative admissibility leads to three conclusions.
First, trial courts sometimes allow one party's
inadmissible evidence at trial. Second, curative
admissibility in some cases may provide a means
to address the adverse consequences of such evidence
upon an opposing party. Finally, the "soundness" of
using curative admissibility to address those consequences
turns on the particular circumstances
presented by each case.
Federal.
3 pages. Written:
2007. Added:
1-18-2009.
Proof, the Journal of the Trial Evidence Committee
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Alternative Dispute Resolution
Arbitration's E-Discovery Conundrum: Dealing with complex evidence problems in a streamlined process, by
Thomas L. Aldrich.
New arbitration protocols and guidelines seek to change the e-discovery landscape by narrowing the focus, providing a balancing test and shifting the burden to the requesting party to demonstrate that the need for disclosure outweighs the cost and burden of disclosure. Thus, the protocols seek to recapture the traditional benefits of arbitration -- speed, efficiency and cost saving -- while preserving fundamental fairness.
Non-Specific.
3 pages. Written:
2008. Added:
12-25-2008.
The National Law Journal
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Computer Forensics
Checklist for Selecting a Digital Forensics Expert , by
Larry R. Leibrock, Ph.D..
The selection and engagement of a qualified forensics examiner should help you accomplish your litigation plan and support your legal work. Conceptually, the professional forensics examiner should support these objectives:Offer your litigation team additional tools and insights about digital data in your litigation plan.
* Increase your capacity to effectively deal with digital data as a form of discovery and evidence.
* Help frame the potential efficacy of several advanced forensics procedures including statistical sampling, recovery of encrypted data, social networks, data hiding discovery, and analysis of graphics imagery.
* Establish a capacity for successfully interpreting both the users and uses of digital data related to your matter.
* Development of expert testimony, supporting facts and demonstrative exhibits necessary to support the theories in your case.
* Help defend or assert claims involving the potential of discovery abuse or spoliation involving computer data.
Non-Specific.
4 pages. Written:
2008. Added:
12-23-2008.
eLaw Exchange
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e-Discovery
New Rule 502: A Little Help Is Better Than None, by
Lawrence J. Fox.
Make no mistake about it. For every lawyer who ever feared sending privileged communications to a non-privileged person -- in particular the other side -- the president's recent signature on an amendment to Federal Rule of Evidence 502 is a godsend.
Non-Specific.
1 pages. Written:
2008. Added:
12-10-2008.
The Legal Intelligencer
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Litigation Support
Avoiding Common Collection Blunders: A Little Planning, and Foresight, Go a Long Way, by
Karl Flusche.
Eectronic discovery is filled with pitfalls and mistakes that can be avoided with proper planning and preparation. One area that can have the greatest impact on the defensibility and the cost of e-discovery is evidence collection. Following are some common mistakes often encountered in e-discovery — and some advice on how to avoid them.
Non-Specific.
1 pages. Written:
2007. Added:
11-29-2008.
e-Discovery Law & Strategy
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Criminal
"White Collar Crime: Bells Tolling for Selective Waiver", by
Kathryn Keneally.
The attorney-client privilege and work product immunity are vital to our criminal justice system. Those under investigation or facing criminal prosecution need to know that they can speak freely with counsel. Defense attorneys must be able to advise their clients with the most complete information possible, including those facts and concerns that their clients would not want to share publicly and have the right not to disclose to the government. Counsel also require the ability to investigate, research, and develop the evidence and strategy to defend a criminal matter free of intrusion by potentially adverse parties.
Non-Specific.
3 pages. Written:
2008. Added:
11-14-2008.
Nacdl.org
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e-Discovery
Authenticating Digital Evidence – Identify and Avoid the Weak Links in Your Chain of Custody, by
Michael R. Arkfeld.
Chain of custody is a familiar concept in criminal law, but until recent years it was foreign
to civil litigators. Historically, evidentiary chain of custody was rarely an issue in civil litigation. The purpose of testimony concerning chain of custody is to prove that evidence has not
been altered or changed from the time it was collected through production in court.
Non-Specific.
12 pages. Written:
2008. Added:
10-06-2008.
merrill-legal.com
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Litigation Support
Courtroom Technology, by
Fredric I. Lederer, Tom O'Connor, and Timothy A. Piganelli.
Technology-based evidence presentation is substantially faster than traditional methods, and many agree that it also does a better job of presenting information. So, is it time to introduce more technology into your next case presentation? Here are some points to consider.
Non-Specific.
1 pages. Written:
2008. Added:
10-04-2008.
abanet.org
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Criminal
Why Criminal Law Should Matter To Business, by
Stephanie Martz.
This speech is all about the importance and relevance of reforming our federal criminal laws, as they relate to the corporation. But, in fact, there’s much more evidence that criminal law is the new frontier in corporate overregulation:
Non-Specific.
1 pages. Written:
2006. Added:
9-12-2008.
nacdl.org
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Evidence
Evidence Authentication - Web Site Content, by
Mark Kerzner.
Electronic evidence presents unique authentication challenges. Article discusses specific issues for web site content, foundation for admission and challenges.
Non-Specific.
3 pages. Written:
2008. Added:
9-02-2008.
Web Site
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e-Discovery
Moving ESI as Real Evidence, by
Jason Krause.
The question of the foundation and authentication of digital records is a complicated problem. In an age where anyone with Adobe PhotoShop or other editing software can make clever fakes of just about any type of file, photo or record, courts are trying to sort out what's real. But the nature of electronic records is so different from that of paper that it is bound to trip up the system.
Federal.
3 pages. Written:
2008. Added:
8-26-2008.
Law.com
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Civil Trial Practice
The Texas Supreme Court Continues to Shape the Law of Voir Dire, by
Sean Reagan.
The Texas Supreme Court continues to shape the law of voir dire with regard to striking a veniremember for cause by holding that a veniremember’s statement that he would hold the plaintiff to a clear and convincing standard of proof in a health care liability case, rather the proper preponderance of the evidence standard, was not grounds for disqualifying the veniremember for cause.
Texas.
2 pages. Written:
2008. Added:
7-11-2008.
Litigation Section
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Criminal
White Collar Crime: Bells Tolling for Selective Waiver, by
Kathryn Keneally.
The attorney-client privilege and work product immunity are vital to our criminal justice system. Those under investigation or facing criminal prosecution need to know that they can speak freely with counsel. Defense attorneys must be able to advise their clients with the most complete information possible, including those facts and concerns that their clients would not want to share publicly and have the right not to disclose to the government. Counsel also require the ability to investigate, research, and develop the evidence and strategy to defend a criminal matter free of intrusion by potentially adverse parties.
Non-Specific.
3 pages. Written:
2008. Added:
7-04-2008.
www.fulbright.com
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Evidence
Minimize Legal Holds' Spoliation Risks, by
C.C. Holland.
Litigation and legal holds are an occasional event at medium-size
companies, but a fact of life for major corporations. While on the surface
the goal seems simple -- preserve, protect and collect relevant data and notify all stakeholders and custodians either during pending litigation or investigation -- in reality there are many opportunities for foul-ups.
Non-Specific.
1 pages. Written:
2008. Added:
6-25-2008.
Law.com
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Civil Trial Practice
Top Things to Do When Collecting Electronic Evidence , by
Joan E. Feldman.
Send a preservation-of-evidence letter; include definitions, instructions, and specific questions in your written discovery; collect backup tapes and removable media; make image copies; write-protect and virus check all media; preserve the chain of custody; and hire an expert.
Non-Specific.
1 pages. Written:
2008. Added:
6-25-2008.
www.abanet.org
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Evidence
Authenticating Evidence for e-Discovery, by
Dennis R. Kiker, Mary Mack.
Article discusses: Lorraine case, hearsay, authentication, original writing rule, technical issues and reducing risk through process.
Non-Specific.
34 pages. Written:
2008. Added:
6-25-2008.
Fios, Inc.
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e-Discovery
Authenticating Digital Evidence – Identify and Avoid the Weak Links in Your Chain of Custody, by
Merrill Legal.
Chain of custody is a familiar concept in criminal law, but until recent years it was foreign to civil litigators. The advent of the digital age has made it a major issue because the actual nature of evidence in civil litigation has undergone a radical transformation from tangible paper to electronic data. The purpose of testimony concerning chain of custody is to prove that evidence has not been altered or changed from the time it was collected through production in court. Chain of custody testimony would include documentation on how the data was gathered, transported, analyzed and preserved for production.
Non-Specific.
10 pages. Written:
2008. Added:
5-16-2008.
Website
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Evidence
Attorney-Client and Attorney Work Product Privileges: Their Application to Paralegals, by
National Federation of Paralegal Associations.
NFPA's research overwhelmingly supports its conclusion that the courts are extending attorney-client and work product doctrine privileges to paralegals. While there may be no statute or court rule that declares a paralegal-client privilege or paralegal work product doctrine is yet in existence courts look at the situation to determine if the lawyer is covered by the privilege and then apply that privilege to all nonlawyers employed by the attorney, including paralegals.
Non-Specific.
1 pages. Written:
2005. Added:
5-12-2008.
National Federation of Paralegal Associations
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Evidence
Expert Witnesses and Reports, by
Hon. Rose Guerra Reyna, David A. Chaumette.
This paper will first review these three issues mentioned above: (1) the Robinson test for the admissibility of expert testimony; (2) preservation of error under Robinson; and (3) preservation of error under the alternative methods that have developed following Havner. Finally, this paper will also discuss (4) Texas statutory requirements for expert reports and (5) unique expert issues that arise in specific areas of the law.
Non-Specific.
99 pages. Written:
2008. Added:
5-10-2008.
State Bar of Texas
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e-Discovery
E-discovery and Electronic Evidence Update, by
Matthew Cohen, Claire Elizabeth Hand, Xavier Rodriguez.
The scope of what is included in the phrase
“electronic records” can be enormous, encompassing
voice mail, e-mail, deleted e-mail, data files, program
files, back-up files, archival tapes, temporary files,
system history files, web site information in textual,
graphical or audio format, web site history files, cache
files, “cookies” and other electronically stored
information.
Non-Specific.
99 pages. Written:
2008. Added:
5-10-2008.
State Bar of Texas
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Evidence
Bates Stamps' Days May Be Numbered, by
Tom O'Connor.
One of the most challenging problems facing litigation attorneys is how to work with the massive volume of digital documents produced during the discovery phase of a case. Attorneys and clients who focus on a document-based systems will save time and money and can conduct native file review. In today's world of vast quantities of electronic documents, the days of the Bates stamp are numbered.
Non-Specific.
3 pages. Written:
2008. Added:
5-06-2008.
Law Technology News
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Evidence
Five Common Evidentiary Issues in Securities Fraud Actions Against Auditors and Accounting Firms, by
Scott B. Schreiber and Robert Alexander Schwartz.
Cases of securities fraud presenting
complex questions of fact involving the application
of GAAP and GAAS to unique modern
business operations are inherently challenging for
a jury of laymen. Counsel for the plaintiff has a
duty to use that practical reality to his or her client’s
advantage, within the confines of ethics.
Counsel for the auditor defendant should focus on ways to simplify the trial by eliminating confusing or prejudicial evidence from the jury’s consideration.
Non-Specific.
10 pages. Written:
2007. Added:
4-27-2008.
ALI-ABA
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Evidence
Recent Developments Affecting the Recovery of Attorneys Fees, by
Jane Bland, Ronald Lewis, Diana Marshall, Cory Galik.
Chapa clarifies that attorneys must segregate fees
based on the percentage of time spent on claims for
which fees are recoverable relative to non-recoverable
claims. This narrows the exception to the rule that
attorney’s fees are recoverable for work done on
claims that do not allow for fees if the claims involve
facts that are inextricably intertwined with facts that give rise to claims that allow fees.
Texas.
10 pages. Written:
2008. Added:
4-19-2008.
State Bar of Texas
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e-Discovery
Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, by
Sharon Nelson and John Simek.
The digital age has provided criminals with countless ways to manipulate others using computers. In this article originally presented at the ABA Techshow, Sharon Nelson and John Simek explain some of these types of crimes. The good news is that we have gotten better and better at detecting the alteration of electronic evidence.
Federal.
1 pages. Written:
2008. Added:
4-02-2008.
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e-Discovery
Lorraine v. Markel: Electronic Evidence 101, by
LexisNexis.
How does one properly introduce email, electronic files, native files, web site pages, digital photographs and other electronically stored information (ESI) at trial? These issues are discussed at length in Lorraine v. Markel (Judge Paul Grimm) and summarized in this white paper.
Federal.
7 pages. Written:
2007. Added:
3-20-2008.
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Evidence
Helping the Jury Get It Right on Punitive Damages: Philip Morris USA v. Williams, by
Murray R. Garnick and Robert A. McCarter.
This article explains recent Williams decision & provides some practical suggestions for its application. We present below first an overview of Court’s decision and then suggestions regarding (1) model jury instructions & (2) how trial courts should protect against the risk of punishment for nonparty harm.
Non-Specific.
6 pages. Written:
2007. Added:
3-13-2008.
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Civil Pre-Trial
Considerations Surrounding Motions in Limine, by
Stewart D. Aaron and Susan L. Shin.
This article discusses tactical considerations that are involved in deciding to make, and making, such motions, and in addressing issues that arise after the decisions on such motions. The Federal Rules of Civil Procedure
and the Federal Rules of Evidence also do not address motions in limine.
Non-Specific.
3 pages. Written:
2007. Added:
3-13-2008.
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Evidence
Five Common Evidentiary Issues in Securities Fraud Actions Against Auditors and Accounting Firms, by
Scott B. Schreiber and Robert Alexander Schwartz.
Auditors and accounting firms have long been a favorite target of the plaintiffs’ bar. In preparing for trial, counsel representing auditors in civil securities fraud actions face certain recurrent evidentiary issues, the resolution of which can be outcome determinative.
Non-Specific.
10 pages. Written:
2007. Added:
3-13-2008.
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Computer Forensics
Taxonomy of Anti-Computer Forensics Threats, by
Joseph C. Sremack & Alexandre V. Antonov.
Anti-forensics is a growing issue with potentially catastrophic consequences for investigators. If anti-forensics succeeds, evidence is subject to a Daubert challenge. Exploiting case law itself can be an anti-forensics technique.
Non-Specific.
17 pages. Written:
2007. Added:
3-08-2008.
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Information Law and Privacy
Get It On Tape - After Considering Legalities of Recording Phone Calls, by
Edward B.Williamson, Charles Kulkarni.
The outcome of a lawsuit often boils down to a credibility match as to the evidence of what was said in a meeting or phone conversation. Nothing speaks louder and clearer than a person's own voice and words on a recording. Getting the consent of all parties to a conversation in advance might stifle otherwise unguarded comments.
Non-Specific.
1 pages. Written:
2007. Added:
3-08-2008.
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Alternative Dispute Resolution
E-Discovery For Arbitrators Under the IBA Rules For Taking Evidence, by
John M. Barkett.
Article describes the IBA Rules and describes the difference between the paper world and the electronic world and how the federal courts in the United States responded to those differences with the e-discovery
rules.
International.
37 pages. Written:
2007. Added:
12-21-2007.
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e-Discovery
Keep 'Smoking Gun' E-Mails From Backfiring, by
H. Christopher Boehning and Daniel J. Toal.
Articles discusses various objections to introducing electronic stored information (ESI) into evidence in civil trial practice, and ways to overcome objections, including admissibility, hearsay and original writings rule.
Federal.
3 pages. Written:
2007. Added:
11-13-2007.
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e-Discovery
E-Discovery Requests: Know Your Limits, by
Mark A. Berman.
Courts in New York state are analyzing and refining the appropriate scope of ESI discovery in each case, so that only "material and necessary" evidence is ordered produced, in order not to unfairly burden parties and nonparties with excessive costs and overbroad requests.
Federal.
4 pages. Written:
2007. Added:
11-07-2007.
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Evidence
No Hearsay in Electronically Generated Information, by
Bradford E. Biegon.
Are you facing a mountain of e-discovery and wondering if you can get it into evidence? A recent 101-page opinion written by U.S. Magistrate Judge Paul Grimm, is a road map to how to use the fruits of electronic discovery as evidence at trial.
Non-Specific.
3 pages. Written:
2007. Added:
10-23-2007.
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Expert Witnesses
The Expert Extrapolation Mirage, by
Ronald E. Hood and John E. Cuttino.
This article
discusses the use of statistics to separate valid opinions based upon scientifically proven methods
from those based upon assumptions and unfounded beliefs. The discipline of “statistics” is an underappreciated tool that can be used to analyze the validity of expert opinions and evidence.
Non-Specific.
7 pages. Written:
2006. Added:
10-22-2007.
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