Another great article from Julie Lewis, President, CEO and Founder of Digital Mountain regarding obtaining information from a party’s iPad’s, smart phones and other mobile devices.

Social Media Metadata on Mobile Devices:  Gathering Valuable Crumbs

If you’re a fan of television crime dramas, chances are you’re intrigued by how the smallest bits of evidence are often the very ones that end up closing the case on the identity of the criminal. Be it carpet fiber, a human hair, or the DNA from a single drop of blood, these infinitesimally tiny pieces of evidence can reveal vast amounts of information when handled by the right investigators. The same can be true of the small bits of information hiding underneath the content of social media postings made from mobile devices. In the hands of the right forensic examiner, the metadata behind the content can tell a lot about the briefest post. In this article, we’ll look at the connection between social media apps for mobile devices and metadata collection.
Continue Reading Gathering Valuable Crumbs from a Party’s Mobile Devices

Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts for Advocate Magazine that explains how it all works.  Enjoy.

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As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)


Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

The title of this blog is a quote from the most basic tenant of the 2016 Discovery Act found in Code of Civil Procedure Section 2017.010 titled Matters Subject to Discovery which reads:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” [Emphasis added]

The courts and the treatises liberally construe this statute and a party’s right to obtain the identity and location of witnesses.


Continue Reading Discovery May Be Obtained of the Identity and Location of Persons Having Knowledge of Any Discoverable Matter

There was only one change to the Discovery Codes but it was significant.  The legislature added language to Code of Civil Procedure Section 2025.220 with added requirements when you serve a deposition notice.  The deposition Notice must now contain:

(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:

(i)  The deposition officer.

(ii)  The entity providing the services of the deposition officer.

   (B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.


Continue Reading 2016 New Years Resolution–New Requirements for Deposition Notices

On August 14, 2012, Judge William A. Mayhew of Stanislaw Superior Court issued his Notice of Hearing on Issues Re Remand in the case of Debra Coito v. State of California. The order requested that the following issues to be briefed: (1) Does the absolute privilege apply to all or any part of the recorded witness interviews; (2) Does the Plaintiff conted that they can make a sufficient showing of unfair prejudice or injustice under C.C.P. Section 2018.030(b) such as to allow discovery as to any of the interviews that may be found to be not absolutely privileged; and (3) As to interrogatory 12.3, does the STATE contend that answering said interrogatory would result in opposing counsel taking undue advantage of the attorney for the STATE’s industry of efforts or that answering said interrogatory would reveal the attorney of the STATE’s tactics, impressions or evaluation of the case?
Continue Reading COITO v. SUPERIOR COURT–Is It Heading Back to the Supreme Court?

The long awaited California Supreme Court decision on whether or not witnesses statements are protected by the work product privilege and thus not discoverable even in responding to a Form Interrogatory is in. The Supreme Court issued its opinion in Debra Coito v. Superior Court of Stanislaus County, S181812, Ct. App. F057690 this morning at 10:00 a.m. “… witness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection.”
Continue Reading Witness Statements Can Be Discoverable!!

The absence of a reasonable expectation of confidentiality in the content of an independent witness’ signed or recorded verbatim statement precludes a finding of work-product protection. That is what Petitioner Debra Coito’s Answering Brief on the Merits states in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf) which is currently pending in the California Supreme Court.
Continue Reading Reasonable Expectation of Confidentiality is the “Dispositive Question” for Determining the Existence of Work-Product Protection

I received a copy of Petitioner Debra Coito’s Answering Brief on the Merits in the case of Coito v. Superior Court of the County of Stanislaus which is currently pending in the California Supreme Court. As you many of you are aware, Coito v. Superior Court (2010)182 Cal. App. 4th 758 refused to follow the 14-year old case Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 stating that witness statements are not attorney work product. Below is Petitioner’s argument that the Court of Appeal correctly held that signed or recorded verbatim statements of independent witnesses are potential evidence.
Continue Reading Signed or Recorded Verbatim Statements of Independent Witnesses are Potential Evidence