Personal Injury Litigation
Jan 17, 2019
Personal Injury Mediation Approaches
Most legal practitioners know that mediation is an excellent chance to settle a case. It allows parties to display their client's case in its best light, before a trial. So even before opposition to a Motion for Summary Judgment, they can show off the full case's value. Typically, a paying insurance adjuster, defense attorney, or paying your client must attend. But significant personal injury cases were not handled in this same manner in the past. And it seems to be going backward. But this is good news for hourly billing defense attorneys who enjoy billing. Where is the Decision Maker? More often today, the plaintiff’s attorney is finding the decision-maker absent during mediation. And this remains especially true with many insurance companies. Sadly, the settlement discussion can be delayed without an attending responsible party. And it seems like, in multi-party cases, each defendant points at the other one. Things like this complicate issues and operate as delay tactics. After all, no one is there who can pay. So it needs to go through channels to be approved. And now it's harder to settle the case at an amount fair to the client. There are ways that the plaintiff’s lawyer can stop this. For example: The mediator can find out who will be attending the mediation session. Once who will be attending the meeting is known, determining who makes decisions for each level of coverage is simplified. If the critical decision-makers are not present at the mediation, it can be made clear to the defense; the injured plaintiff and attorney will also not attend. Consulting the qualified mediator is usually possible before mediating. So hopefully, he or she will discuss issues regarding decision-makers. So don't be a slacker. Pin these people down. Even ask the judge to require the attendance of a decision-maker with authority. Otherwise, shut it down. What About Mediators and Creative Settlements? Settlements in personal injury cases have changed in the way the mediator assists in reaching solutions. They have become more creative. So now, they use techniques to help in settling personal injury cases. One of these is joint mediation sessions. Here, the mediator can use to influence the insurer's viewpoint about the claim. In a joint session, the plaintiff’s lawyer can present the liability facts. That way, the mediator can brief people and include a PowerPoint presentation. So they can show the impact this has had on the lives of the parties. After all, it has been hard for the claimant and their family. These presentations can be a deciding factor, while the mediator talks in private with the insurer’s representative after the mediation session has concluded. One of the other advantages of the joint meeting is that it allows the plaintiff or the family to be seen and heard by the adjuster. The Payor Must Attend? The payor is the money person and can make a big difference in the case. But preparation is vital for the personal injury plaintiffs because the plaintiff must present a persuasive argument. Mediators use private sessions during the first visit with parties separately. So this is where they can listen to the plaintiff’s case where there is no one around to hear the more confidential aspects of the case. And this can help in negotiating the claim for its real value. In the past, they were using private sessions with the victim to try and run numbers. But this session is not useful when the plaintiff had sustained significant emotional injuries. For example, imagine a family has suffered the loss of a loved one. They require time for the emotional impact statements, etc. Also, overly emotional people are unable to reason during the negotiations process. So the mediator must now negotiate through the plaintiff’s lawyer. Mediators must have excellent listening skills, empathy, and patience. They must realize how difficult this situation is for the applicant. In private sessions with the plaintiff and the defense, both will permit the mediator to examine improbable assumptions about the claim. This is why the old way of mediating claims no longer works: Premeditation Preparation: Premeditation preparation takes a lot of time. Reviewing briefs and discussing the facts with the attorneys before the mediation helps the mediator. But the mediator needs to know the salient points. Otherwise, reconciliation won't work. During these discussions, the mediator may determine joint or private mediation sessions are better. This meeting can also help in determining material issues. That way, the plaintiff and defense can agree on issues that are hard to pin down. This face to face can also show the personalities. Plus, it identifies who the decision-makers are. The mediator can research discovery issues, jury verdicts, and coverage issues. So they will be alert to signals when a settlement agreement is near. Follow-up: When a claim is at a stalemate in a complaint with a severe injury, it is not uncommon for it to end this way. Mediators have the experience to know this happens. And in some cases, they find a way to move past this point. Other channels may include depositions, medical examinations, expert consultations. And there may even be insurance management reviews. Then the mediator will follow-up with the lawyers. They do this to find out if parties remain open for further negotiations. Maybe these will lead to an eventual settlement. Mediators often do this at no extra charge. Successful personal injury cases require preparation and strategy on the part of the broker. But if the mediation ends in a stalemate, it could still result in a later "mediator's proposal." And you could yet settle via fax machine. In our future discussions, we will go over some of these other issues. We hope you enjoyed this article on tactics and strategies for successful mediation in injury claims. And we invite you to read more of our articles.
Jan 17, 2019
Interrogatories - The Request for Further information in Personal Injury Cases
icon of microchip discover Usually, people go about their daily lives without thinking about law work. But injury victims will need to learn about this process. After all, the process of filing an injury case and the unique elements of the case are information intensive. The information provided here will help to educate the person interested in knowing more. Now this person will know about the process of collecting data and preparing a case. Gathering the right information from the start can help in preparing. Knowing what to expect with the legal process is vital. And choosing the right injury lawyer, in particular, is also paramount. Specific discovery rules govern lawsuits. These rules intend to give the plaintiff and defendant the capability to assemble valuable information. After the filing of a lawsuit, attorneys use specific methods to obtain relevant information during court cases. This information can include personal injury case law, etc. One of these tools of discovery is the use of interrogatories. Plaintiff and the defense use these questions. The information provided can help streamline the process in a personal injury case. Because of these answers, parties can better understand the specific terms and timelines. Interrogatories In California personal injury cases, both the plaintiff and defense make a list of questions. First, they send these interrogatories to the other side. Next, the other side provides answers. At least, that is the idea. This article covers Special Interrogatories, and Judicial Council approved Form Interrogatories. Covered elsewhere, will be our discussion on Requests for Production of Documents and Things. So this is a simple process. First, you must mail "Form" and “Special Interrogatories” to the other side. These special questions seek to identify something. For example, they will ask for names, addresses, phone numbers, birth dates, employment, etc. Request For Admissions Other types of informal discovery include handcrafted “Requests for Admissions,” asking the other party to admit or deny something like “ADMIT the medical bills are reasonable,” etc. And of course, there are also “Requests for Production of Documents and Things,” that can force a party to turn over real documents and things like DVD’s, for inspection and examination. These are all known as informal discovery. Form Interrogatories Judicial Council approved Form Interrogatories have boxes a party can check with specific questions. So the Court will typically want to know the answers too. Most of all, these are an excellent method to use to obtain basic info like birth dates, whether or not the other party has a liability insurance policy. That way, we know if some kinds of coverage for the accident or mishap, etc. are available. Sometimes Responses are "No Response At All"? Of course, the party that receives the interrogatories must provide proper answers to the questions they received. Along with these guidelines, there is a time frame. Thirty days from receipt, plus time for mailing, is the common rule. But the responses must also be verified, or they constitute “no response at all.” (See Appleton v. Superior Court.) The written answers must be accurate to the best of the individual’s knowledge. And the responses must have a written verification to this fact. As discussed, the questions in the interrogatories will usually be about the background. So these will seek info about past injury claims, past medical histories, etc. Employment history will be sought. Focusing on specific types of questions helps discover evidence. Fishing expeditions are proper during initial discovery. But if objected to, this evidence may not come in at trial. But since it could lead to other admissible evidence, courts allow liberal discovery. What Else? The questions might involve how specific injuries occurred from the incident and potential witnesses. Each state has its own rules and guidelines. In all events, in California, it remains essential to retain a trained personal injury lawyer. Most of all, knowledgeable lawyers in the state where your incident occurred. That way, they know how the state deals with the questions and answers for discovery. When court approved interrogatories are used, the other party must respond to the questions. After all, it is considered by many judges to be mandatory to comply with the approved interrogatories. However, they are objectionable. But not every question may be valid in your case. So don't just check every box. After all, you could be sanctioned for abusing the discovery process. What Effect Interrogatories Do Answers Have in a Personal Injury Lawsuit? The answers to the questions included in the interrogatories are crucial for each side. After all, it will determine the direction the lawyers will take on behalf of the plaintiff and in the name of the defendant. Courts call these answers "admissions." So these give the lawyer the capacity to read the responses in court out loud. Experienced know there is power in using the admissions from the interrogatories in court. And these answers can be later used to impeach or contradict the deponent. Untimely interrogatories can be compelled, a motion for “sanctions” can accompany this motion. Some courts treat bogus responses or nonresponses as contempt of court. What discovery can do, is to make the person educated in what to expect. Discovery helps the client work with their lawyer. Above we saw that interrogatories are helpful tools. Conducting discovery builds a solid case. Look at our blog to learn more.
Jan 9, 2019
Personal Injury and Civil Court Standard of Proof
Scales of Justice in a Civil Case There is a burden of proof criminal or civil court required to obtain a conviction, judgment, or jury award. This burden is the relevant “standard of proof.” And it will be a different and lessened burden in civil court. So there is a more stringent standard in a criminal case. Thus, the level of proof in criminal cases is always greater. There is a higher standard. After all, a guilty verdict can result in severe penalties. Penalties would include loss of life, liberty, and the pursuit of happiness for an upheld conviction. This criminal standard requires proof of guilt beyond a reasonable doubt. That means it must convince a judge or jury of the defendant’s guilt. Only then can they determine the sentence and penalty. But the standard of proof in a civil case is usually the “preponderance of the evidence,” standard. But cases involving fraud or intent may require a clear and convincing evidence standard. Often, the original or amended complaint alleges fraud. So those causes of action would require a higher standard of proof for you to win. What are the Wrongful Acts? Wrongful acts or certain types of negligence can be the basis for criminal actions that result in financial punishment. Beyond fines and penalties, this same behavior can also result in imprisonment when the state or federal prosecutor initiates the criminal prosecution, and a jury ultimately decides upon conviction, or the defendant facing incarceration enters into a plea arrangement. So although there may be criminal charges against a tortfeasor, the wrongful actions in a civil case that fall under civil tort law, even though they can also involve a private attorney general statute. This law means that an individual harmed through negligence, such as a fender-bender traffic accident can sue. The same goes for intentional acts, such as when someone punches you in the face without a license. Or it could have been on purpose. And if so, you (as a tort victim) have the legal right to file a civil lawsuit. You would do so to recover damages. "Civil liability" under tort law defines these cases. Criminal Case Compared to a Civil Case - Burdens of Proof? Evidence in all criminal cases should be clear and concise to be convincing in court cases, though with civil cases, the evidence often falls between this and “more likely than not.” This standard exists because the civil court relies on a lower burden of the evidence. But to convict criminally, the evidence must be much greater and not just tip the scales. In these types of jurisdictions, the plaintiff, the People of the State of California, must prove crimes took place. This rule exists because, in most criminal cases, jail time and even the death penalty can be a punishment if convicted. In any event, the U.S. Supreme Court says a lessened burden of evidence is required in most civil lawsuits. And this is called the "preponderance of the evidence" standard of proof. This lowered evidentiary threshold exists mostly because the only punishment will be money damages. The one time that more is required is when “particularly important individual interests are at stake.” This standard is known as the "clear and convincing" burden of evidence. Recent Court Example of Clear and Convincing Evidence Standard Issues? This higher civil standard has been mostly in cases that involve punitive damages, insurance, bad faith, or fraud. But with every rule, there is always an exception. One example was in 2003. That was when the Arizona Court of Appeals upheld a lower standard of proof. And that was because an insurance company claiming fraud by an insured party had sufficient cause to void the policy of the policyholder. So that relieved the insurance company from being obligated to pay without the need for clear and convincing evidence to prove the case by the carrier. More recently, in the state of California, an appeal case ruling involved a physician being sued by an insurance company under the statute for fraud due to over-billing. That Court ruled that the plaintiff could use a lower standard of the evidence to prove their case. The physician's counsel had argued the case should be prosecuted using the clear and convincing evidence (discussed below). But the doctor's counsel also argued that the court could apply the more significant criminal burden since the stakes remained so high. Other Issue - What if a Matter is Potentially a Crime And a Civil Case? When a wrongful action takes place in which criminal charges can be brought against the one who caused harm to another person, tort law can also be used to sue. In such a case, you can bring a civil claim against the wrongdoer in civil court, irrespective of double jeopardy laws. This rule exists, because one example is a civil case, and the other is potentially a chargeable offense in criminal court. So, in that case, there is no double criminal punishment for the same crime. "I'll Take the 5th?" - Pending Criminal Case? The Fifth Amendment restates the ancient Common Law right that: “No person. . . shall be compelled in any criminal case to be a witness against himself.” Our one Supreme Court has long upheld this natural right stating: “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” (Hoffman v. the United States, (1951) 341 U.S. 479, 486-487.) With few exceptions, this rule is sacrosanct in a criminal case. Once relied upon, the defendant's refusal to testify cannot be used against him or her to create an inference of guilt or innocence. Pleading the 5th in a Civil Case Distinguished - Inference of Liability Potentially Inferred. Often when criminal charges are pending, or potentially chargeable, defendants in civil cases will use the 5th Amendment as a basis for refusing to answer questions in the pending civil lawsuit. In this case, a seasoned plaintiff's lawyer will argue Evidence Code Section 412. This argument is made to attempt to have the other evidence that is produced by the defendant in mitigation viewed with distrust. It is also potentially a sanction-able act in a civil case to take the 5th for purposes of refusing to answer questions while under oath in that civil case. Even fishing expeditions are allowed. Facts discovered now could lead to other new witnesses and facts. And that new info is potentially admissible in a civil action. Often that would typically become disallowed in a criminal case for various reasons. Potential "Doomsday Sanctions" for Taking the 5th in a Civil Case? - YES! There are vast arrays of sanctions in a civil case available to a plaintiff to force the compulsion of responses. The penalties can include the striking of the defendant's answer and entry of judgment in favor of the plaintiff without even going to trial. The potential sanctions for refusing to answer questions in civil discovery, based upon "absolute privilege" like this are many. These penalties include monetary sanctions and even more extreme "doomsday sanctions" like "issue sanctions," "evidence sanctions," "terminating sanctions." (See also generally CCP §2023.030.) The wrongful action case by the victim in the civil court will be to recover financial damages. But the local DA or City Attorney handles criminal charges filed against the wrongdoer. The criminal court hears the charges. Criminal charges do not relieve you of civil liability. Also, both cases can use the same facts to garner evidence in the wrongful action. Both courts using that same evidence can have different results. For example, an acquittal in the criminal court and a finding of liability in a civil court could have differing outcomes. Such was the case in the O.J. Simpson matter. He killed his wife and Ron Goldman. But O.J. played the race card and got out of jail-time. In any event, he still was held liable for money damages in the wrongful death lawsuit. So, in that case, the surviving family members of decedent Goldman got a money judgment. Differing Burdens of Proof? This seemingly strange result is due to the difference in the burden of proof. This burden is less in civil litigation than in criminal prosecution. The civil court found the sports figure liable in money for damages the deaths. So this shows the difference in proving a case in civil court compared to a criminal trial setting. In that case, Judge Ito excluded evidence of guilt and allowed other evidence in. But many legal scholars said Ito violated the law. But this occurred when Ito allowed in some hypothetical evidence of innocence and excluded valuable evidence as to guilt. (such as the shrunken leather glove atop a rubber surgical glove). Conflicts are more likely to occur in criminal court settings, rather than civil actions with the same events. This disparity is why some cases that result in an acquittal are still thriving in civil court. Ad this is all due to the difference in the standard of proof. Many variables remain involved here. The Unintended Consequences of Jurors Weighing the Evidence. Many political scientists believe the O.J. case became a racial trial of whites versus blacks. There was an almost all-black jury panel. Most agree that the OJ criminal trial set back race relations in this country. In the end, evidentiary burdens, political and other factors can play a significant role in the way a jury rules on the standards of evidence.
Jan 8, 2019
Understanding Mediation for Personal Injury Victims
Word Cloud with Negotiation related tags Mediation and Cases At the CMC, the court will set up a mediation or arbitration date. These are meetings between both sides, where a judge or professional mediator helps both sides try and settle. So the idea is to come up with a dollar amount and avoid a trial and more expenses associated with litigation. Mediation involves negotiations conducted by impartial parties. The idea is to resolve issues. There is a more particular meaning of mediation when you are referring to a personal injury case. It involves specific procedures, expectations, and actors. Below is a closer look at the probable outcome of mediations and what a person can expect. Mediation Participants: The Mediator – A personal injury case mediator is someone that is impartial to the case and has obtained a certificate for dispute resolution. And in many situations, this is a judge or a lawyer that doesn’t have an active interest in the case and an understanding of personal injury law. Last, the mediator's fee is typically a flat fee. And the plaintiff and defendant usually divide the costs of the fee, paying their portion. A mediator’s interest in resolving disputes often results in more intervention work, as their reputation improves with each successful resolution. Counsel for Defendant – This is the lawyer or lawyers that represent the defendant. But they generally have a thorough knowledge of the aspects of the case and will often lead to opening arguments that are in the best interests of the defendant. They also take part in the negotiation process for settlements the defendant may seek. Insurance Adjuster or Carrier for Defendant – An insurance representative (adjuster) for the accused will represent the insured. In some cases, the defendant attends this part of the mediation. But in some situations, they do not. The adjuster will usually participate in mediations, but not always. Adjusters often have the last say on the amount of settlement offered. And they also must accept a final demand for a settlement. Counsel for Plaintiff – This is a personal injury lawyer that represents you the plaintiff. So they present the defense with a short opening presentation about the strong points of your case. They lead negotiations for the settlement and then will defer this to you. Plaintiff – This refers to the individual or their legal representative that brought the claim about. Legally, the plaintiff has the last word in determinations made for amounts demanded, as well as decisions to accept settlement amounts. What Should I Expect in a Personal Injury Mediation? Below is a step-by-step explanation of the usual mediation process. The parties involved enter the room – Both the defendant’s and plaintiff’s sides go into a conference room. All sit on opposite sides of a conference table. Also, the mediator usually remains seated at the head of the table. The process of mediation – Here, the mediation process gets explained in about ten minutes. Hopefully, this will foster a favorable settlement environment. So decision making parties need to remain in attendance to obtain a good-faith resolution. As an encouragement to settle, the mediator may also explain the benefits of reaching an agreement and the uncertainties involved with going to trial. The plaintiff’s counsel presents the case – The plaintiff’s attorney is invited by the mediator to submit a presentation of the strong points of the case. This process can last only five minutes, or it can take as long as two hours. While they may attend, the client does not participate in this process. Defendant’s counsel presents the case – Next, the counsel of the accused gets an opportunity to show the strong points of their situation and answer any disputes of the plaintiff. They generally also highlight the fact that each party is in attendance in good faith. This process can last anywhere from a few minutes to about one hour. While they may attend, the defendant does not participate in this process. Parties of the case separate –At this point, the mediator will request that each of the parties divide into different conference rooms. While this frequently happens before the first demand, it can also occur after. Opening demand gets presented – Plaintiff makes an opening demand. (opening settlement offer). Mediation starts – Defense counsel then discusses the demand with the mediator. A counter-offer normally will be transmitted to the other party, and so on. This process continues, and in some situations, only lasts about 30 minutes. But sometimes the back and forth takes several days. After negotiations – At this point, parties should have an agreed number for a settlement. Or the mediation will end with no settlement number. Draft documents for settlement get created – After reaching terms, signatures are added to settlement documents. This process usually takes around 30 minutes. Claims get dropped, or settlement funds get distributed – The settlement funds transfer timeline will be specified in the documents. Also, the plaintiff signs releases of defendant's potential liability. The payment deadline will usually range from as little as 15 days to 60 days. Because of the uniqueness of a situation, each mediation process remains significantly different.
Jan 7, 2019
The Legal Definition of Delayed Discovery Rule Law
Attorney Michael Ehline. The Motorcycle Rider's friend. The delayed discovery rule was created as a way to protect negligence claims from the statute of limitations, which could have expired before the plaintiff knowing that he or she had a legal claim. This legal set of guidelines postpones the running of the statutes of limitations. But it only remains tolled during the period the plaintiff did not know they had a claim. This period could also be due to the implementation of reasonable diligence, which would not have discovered the injuries could lead to his or her action against the defendant or perpetrator. This rule can apply in sexual abuse cases until the victim sees the connection between their injuries and the sexual abuse that occurred. An example of the delayed discovery rule legal definition: Typically, a ground of legal action accrues upon the event from the final component crucial to the cause of action. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 826.) The doctrine is based upon fairness. And this is why we have the delayed discovery rule. This means the statute of limitations starts to run not upon injury, only when the plaintiff either discovers his or her injury or could have seen his or her accidental injury through the utilization of reasonable diligence. (Smith v. Dunham, 2008 Cal. App. Unpub. LEXIS 2823 (California Unpublished Opinions 2008). Generally, minors and prisoners can toll the statute. So until they can represent themselves freely the statute remains tolled. For a more detailed explanation, contact our attorneys at (888) 400-9721.
Jan 6, 2019
What is A Proper Video Recorded Deposition?
Video has revolutionized courtroom proceedings, allowing every sound and emotion to appear clear as day to both judge and jury. The power of recording a deposition cannot be underestimated. It can serve as a vital portion of your case. The ability to properly conduct a statement recording can make an impact at every stage of your proceedings and could be the make or break moment. For attorneys, there are several critical differences between traditional forms of court conduct, even if they seem subtle. These can include: Lawyers must make sure that they correctly engage any witnesses. Specific actions, such as heated arguments with those in the case, can detract from the proceedings at hand and turn judge and jury against you. The tone of voice, body language, and non-verbal communication are all amplified by this type of case. Coming across as condescending, aggressive, or without tact can help sink a case. Preparation is key. Making sure that all documents are in the correct order is critical. So make sure the proper passages remain highlighted. All of this makes a difference. Practicing what you will do can be vital-- just as on TV or radio, stammering, silence, or confusion can help destroy your point. Are There Special Challenges For Injury Victim Deponents? In some injury cases, in addition to Subrosa, the defense may attempt to video the depo of your client. A few of the challenges faced are clients with neck and torso injuries and movements they make that may cause a juror to feel the damages are less significant. If a client is on pain meds, he or she may appear not to grimace from pain when they should. So, for example, when they are handed a document, they should be wincing in pain, right? These tips also can be applied to countersuing defendants, so pay close attention. Another unique situation has to do with the infamous two-way mirror deposition. Some slick defense firms will send out a depo notice, and notice that it may be recorded. But when the deponent and attorney arrive, there is a room with an innocent-looking mirror, picture, and a conference table. In most videotaped depositions, the person taping the depo is in the same room physically. So the attorney knows when the client and attorney are on tape. Be Careful, You May Be Revealing Strategy. Always read the notice, and never assume you are not on tape. The attorney could be revealing the strategy, having confidential conversations. Plus, the deponent could be picking up heavy folders and objects and recorded all the time. Also, while visiting the defense attorney, the plaintiff's attorneys should ask if they are being recorded. And while at the defense firm's offices, if you wish to speak to your lawyer, step outside and whisper. Defense attorneys may use a two-way mirror, so you don't notice the videographer. Your attorney should demand to see the video recording specialist's credentials. Also, the lawyer should demand the camera be off when the deposition is not in progress. Otherwise, you may end up with every little thing taped so long as you are in the conference room. Sometimes the defense will invite you to lunch in that same room with your client. So even during recorded breaks, you're likely on tape. Imagine having snippets of that tape used against you. No thanks. While these changes and challenges may seem daunting, with proper practice and a helping hand, you can have precise and expert presentations for the court. These can become a great asset to your firm and one that your clients will appreciate. The reputation gained by the proper use of these methods is another edge that you may need in court. Call us today for more information.
Jan 5, 2019
E-Discovery Duty to Preserve
Don't Tell Me Show Me Concept There is a duty to preserve electronically stored information (ESI) in many California court cases. ESI includes data, documents, and materials. Even if it is not admissible directly, it could lead to other admissible evidence. You must not destroy electronically stored information, alter or conceal it. Anything is potentially relevant evidence. So it will likely be a part of litigation. This means that counsel must act reasonably in the preservation of ESI. The duty extends to many classes of people. These classes include the client, parents, attorneys, partners, employees, officers, directors, divisions, subdivisions, contractors, accountants, auditors, and subsidiaries. Preservation of Evidence Letter In PI cases, it is critical to send out a "preservation of evidence" letter at the outset to all interested parties. But a legal hold is essential for both the counsel for the plaintiff or the defendant. The attorney for the plaintiff should send a letter to any of the potential clients or their lawyers. So this will be a notice of the filing of a lawsuit. And getting a preservation order from the court is often the smart move. Also, don't leave the preservation of evidence up to the client or their IT department. Metadata remains easily alterable. And copying of files onto paper is another way to alter these electronic documents. Also, variations in the electronically stored information can prove the authenticity or integrity of the stored data. There have been sanctions for failure to preserve ESI. It can result in spoliation penalties. It can also result in "doomsday sanctions." If there is a failure to protect the electronically stored data, it can be devastating to the client. A careless, intentional, or reckless deletion matters not. The attorney failing to ensure the preservation order or litigation hold can be in trouble. Also, the State Bar Association could disbar or suspend the lawyer. What the Law Requires The law requires each party to preserve all potentially discoverable electronically saved information. These laws carry duties imposed that apply to each party and any third parties. ESI cannot be altered or deleted once on notice. File fragments or remnants of any altered or deleted information remains discoverable. Procedures must be enacted to protect electronically stored informatiremainon including any related metadata from data compression, deletion, overwriting, or rotation. ESI must be protected from procedures such as disk defragmentation, reformatting, and other types of optimization routines. Do not dispose of data storage devices. Media often gets replaced during upgrading, so keep that in mind. All application programs and utility program copies must be preserved. Anything used in accessing, processing, reading, copying, or displaying remains discoverable. Also, professionals can make forensic copies of any potential electronically stored evidence. So that way, you can avoid confiscating USB drives, iPods, laptops, or other equipment. So now both sides can continue the business. Most of all, maintain a proper chain of custody record for the ESI. This custody applies in particular to loose and removable items like Blackberry’s. Maintaining logs remains vital. Then it may be possible to show the judge the lateness was due to an innocent error. At least that way, it wasn't intentional. ESI and Metadata. Metadata can be critical, which is data about other data. This data was not an issue with paper documents since the data would have been in the record, such as the date and author. Electronically stored information has changed discovery rules. For example, metadata, online searches for porn, can embarass you. Metadata issues can include: Tracking is potentially damaging changes to documents. Modifications of document creation dates, accessed, the numbers of revisions, and the total amount of time for editing remains discoverable. The ability to follow the internet route of email by viewing the full header. This can identify those people blind copied on an email (BCC). Knowledge of comments and secret formulas in spreadsheets. Digital Fingerprint Metadata has a type of digital fingerprint that can change any part of a document, including other metadata. The most significant benefit of metadata is the advantage of doing more effective searches. Some metadata remains accessible in "properties" in MS Word Documents. Also, some emails in the "to" and "from" fields are accessible. Once learned, these rules can help you win. Without an agreement, you have to turn over everything on your hard drive. The one problem that exists is unless you request the metadata; it is possible only to receive paper documents. So you must ask for the data in electronic form. If not, you will be digging through piles of paper. So specify that the file format is a raw native file format. This evidence would also include the metadata.
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