E-Discovery and Spoliation on Appeal: The Convergence of Law

291 Pages·2007·19.67 MB·English

Third AnnuAl JudiciAl SympoSium
E-DiscovEry anD spoliation on appEal:
the convergence of law and technology

course Materials
June 2007
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Course Materials Table of Contents
Hypothetical Case ..............................................................................................................................1
Michael B. King and John Bredehoft
Appellant Brief .................................................................................................................................3
Appellee Brief................................................................................................................................34
Joint Appendix ..............................................................................................................................66
Emerging Issues in E-Discovery .................................................................................................127
A Primer
John Jessen
E-Discovery in State Courts from the Appellate Perspective ................................................151
Richard Marcus
Addressing E-Discovery Issues through Rule Changes ..........................................................175
Federal and State Approaches
Thomas Y. Allman
Spoliation ........................................................................................................................................187
Truth or Consequences
Gregory P. Joseph
DRI Supplemental Articles ..........................................................................................................207
To the Victor Go the Spoils: Be Wary of Independent Tort Claims for Spoliation .......207
Jeffrey L. O’Hara and Matthew I. Gennaro
The Newly Heightened Preservation Expectations of Courts How to Meet Them
in Light of Current Ethical Obligations ..............................................................................212
Martha J. Dawson
Pesky Federalism: Where State Court Electronic Discovery Practice and the New
Federal Rules Diverge Plus Defense Strategies for Multijurisdictional Litigation......230
James K. Lehman
Federal Rules of Civil Procedure: The Proposed E-Discovery Ammendments .............246
Ashish S. Prasad, Thomas Y. Allman, and Jason B. Fliegel
Resources from Other Organizations .......................................................................................251
Conference of Chief Justices: Guidelines for State Trial Courts Regarding
Discovery of Electronically Stored Information ...............................................................251
NCCUSL Draft Uniform Rules Relating to the Discovery of Electronically
Stored Information .................................................................................................................271

Hypothetical Case
Michael B. King
John Bredehoft
MICHAEL B. KING practices with the Talmadge Law Group in Seattle,
Washington. A full-time appellate litigator who has made over 85 argu-
ments to full merits panels, Michael has successfully represented clients
before the Alaska, California and Washington Supreme Courts, the Ninth
and Eleventh Circuit Courts of Appeals, and all divisions of the Wash-
ington State Court of Appeals. He has chaired DRI’s Appellate Advocacy
Committee, is the Program Chair for the ABA’s Council of Appellate Law-
yers, and has organized and spoken at appellate CLEs around the country.
He is a founding member and past President of the Washington Appellate
Lawyers Association, was named a “Best Lawyer in America” for appel-
late law in 2007, and has been named a “Super Lawyer” in appellate law by
Washington Law & Politics magazine for the last six years. Michael gradu-
ated magna cum laude from University of Washington School of Law in
1984, and received his A.B. in Government from Harvard College in 1979.
JOHN M. BREDEHOFT practices law in the Norfolk, Virginia office of
Kaufman & Canoles, P.C. He is a member of DRI’s Appellate Advocacy
Committee, a long-time instructor at the Virginia Supreme Court’s course
on Professionalism for Law Students, and currently serves as the Chair-
man of the Virginia Bar Association Section on Labor Relations and
Employment Law. A frequent speaker before Bar and other groups, his pre-
sentations have run the gamut from witness-coaching to whistle-blowing
and from supersedeas bonds to cyber-terrorism. A business counselor as
well as an experienced appellate advocate, he has even been known to try
cases when the occasion demands. He has been recognized by numerous
publications including Chambers USA and The Best Lawyers in America.
John is an honors graduate of Harvard Law School and received his A.B.,
magna cum laude, in history from Harvard College.