Historical Highlights

Some interesting historical events

April 28, 2023

Book Review:  Any Ship Can Be a Minesweeper – – –  Once

When it comes to electronically stored information, Tom O’Connor is a national treasure.  He has a wealth of litigation-related ESI experience, helped run the prestigious Georgetown E-Discovery Academy, lectures on recent cases and developments in the law, has published several books and blogs, and is a consultant.  He has generously shared his […]
October 17, 2022

Did You Know? – Spoliation, Part X

The original spoliation case was Armory v. Delamirie, 93 Eng. Rep. 664 (K.B.1722). American courts began addressing spoliation in 1794. M. Berman, et al., Managing Electronically Stored Information and ESI (ABA 2011), at 751 n. 12 (citing Bd. of Justices v. Fennimore, 1 N.J.L., 1794 WL 507 (N.J. 1794).  Maryland applied the doctrine in […]
October 16, 2022

Did You Know? – The Fax Machine, Part IX

The first fax machine was patented in 1843, several years after the telegraph.  Mary Bellis, Alexander Bain and the First Fax (thoughtco.com).  Ms. Bellis wrote: Faxing is by definition a method of encoding data, transmitting it over a ​telephone line or radio broadcast, and receiving a hard copy of the text, line drawings, […]
October 15, 2022

Did You Know? – The Photocopier, Part VIII

The mimeograph was replaced by the photocopier: [I]n 1959, Xerox released the “914”—the first easy-to-use photocopier. The culmination of more than 20 years of experimentation, it was a much cleaner, “dry” process. The copier created an electrostatic image of a document on a rotating metal drum, and used it to transfer toner—ink […]
October 14, 2022

Did You Know? – The Mimeograph, Part VII

“Thomas Jefferson used a pantograph: As he wrote, a wooden device connected to his pen manipulated another pen in precisely the same movements, creating a mechanical copy.”  Clive Thompson, How the Photocopier Changed the Way We Worked—and Played | History| Smithsonian Magazine. The early 20th century saw the a new device[1] and, “[i]n the […]
October 13, 2022

Did You Know? – The Computer, Part VI

“In 1946, when the ENIAC computer was dedicated, it weighed over thirty tons.[1] “ENIAC” is the acronym for the Electronic Numeral Integrator and Computer.[2] In the early 1950s, the RAND Corporation built JOHNNIAC, a 2.5- ton computer.[3] In 1966, a team of engineering students re created ENIAC on a single chip.[4] Today, […]
October 12, 2022

Did You Know? – The Magic Marker and Highlighter, Part V

1952 saw the introduction of the “Magic Marker.”  The History of Pencils, Markers, Pens, and Erasers (thoughtco.com) Highlighters were introduced in the 1970’s.  Id.  The fiber tip pen was invented in 1962.  And, the “Hi-Liter®” was trademarked in the 1990’s.  Id.  Gel pens were introduced in 1984. “The gel ink uses pigments […]
October 11, 2022

Did You Know? – The Typewriter, Part IV

The typewriter was invented after the Civil War.  George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?, 13 Rich. J. L. & Tech. 10 n. 12. “[T]he typewriter is responsible for much of the remarkable progress of the world during the last four decades. . . . […]
October 10, 2022

Did You Know? – The Ballpoint Pen, Part III

Lewis Waterman’s fountain pen, The Fountain Pen, Part II, was not without its shortcomings.  Ink smudged. Innovation followed.  Laszlo Biro noticed that newspaper ink dried quickly and did not smudge.  However, it was too thick for a fountain pen.  He patented the ballpoint pen in 1938. “The British government bought the licensing rights to […]
October 9, 2022

Did You Know? – The Fountain Pen, Part II

The oldest known fountain pen was designed in 1702.  Mary Bellis, Who Invented the Fountain Pen? (thoughtco.com). The fountain pen was patented by a Baltimore shoemaker in the early 1800’s. Id.  In 1883, Lewis Waterman went to sign a contract; however, his fountain pen did not work and leaked all over the […]
June 4, 2022

Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout

The duty to preserve potentially responsive information generally arises before litigation begins.[1] However, the Federal Rules of Civil Procedure don’t apply at that time. The Honorable Paul W. Grimm, M. Berman, et. al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 381, 397 (2008). When it […]
June 3, 2022

Historical ESI Highlights – Part XI – Taniguchi v. Kan Pacific Saipan

When it comes to ESI, it has been stated that: “The fuss is about money. Discovery is expensive, and electronic discovery is really expensive.”[1] The award of litigation costs will never be the stuff of cocktail party discussions.  However, in many cases, large sums of money are at issue. See, e.g., Ralph […]
June 2, 2022

Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure

As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006.  And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will […]
May 31, 2022

Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation

Like many of its other publications, The Sedona Conference’s “Cooperation Proclamation” was an inflection point. The Cooperation Proclamation was published by The Sedona Conference in 2008.[1] It was followed by a number of publications, endorsed by Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008), and by […]
May 30, 2022

Historical ESI Highlights – Part VII – The Sedona Conference and EDRM

It would be difficult to overstate the significance of The Sedona Conference and the EDRM in shaping the contours of ESI in civil litigation. Kenneth J. Withers is the Deputy Executive Director of The Sedona Conference.  In “The Sedona Conference and Its Impact on E-Discovery,” Chap. 35 in M. Berman, et al., eds., […]
May 29, 2022

Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching

The prior blog discussed the historical acceptance of technology assisted review.  However, keyword searching remains an important and useful tool.  Mark Twain wrote: “The reports of my death are greatly exaggerated….”  The same may be true of keyword searching. While there are many decisions and articles on keyword searching, one of the […]
May 28, 2022

Historical ESI Highlights – Part V – Technology Assisted Review

The Hon. Andrew Peck wrote that “[t]he first ‘technological’ innovation in document review came in 1980- when 3M® began selling Post-It Notes.”[1]  Two of Judge Peck’s later decisions led to the recognition of technology assisted review as a valid search methodology. In A Brief History of Technology Assisted Review (lawtechnologytoday.org)(Nov. 17, 2015), […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
May 26, 2022

Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”

Zubulake was not the first e-discovery case to impose sanctions. Dan H. Willoughby, Jr., et al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 794 (2010). Mr. Willoughby explains that that distinction belongs to Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. […]
May 25, 2022

Historical ESI Highlights – Part II – Zubulake

In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution.  However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal.  Everyone practicing law at that time heard of them. Zubulake was a series of cases.  Zubulake v. UBS Warburg, […]
May 24, 2022

Historical ESI Highlights – Part I

This is the first in a series of blogs on historical developments in civil litigation related to electronically stored information.  The speed of change has been remarkable.  For example, The Hon. John M. Facciola recently asked: “Did anyone get the license plate of the rocket ship that hit me?”[1] The value of […]