True Grit: Finding the Right EDD Formula

With LegalTech New York on our doorstep, we've putting our February issue of Law Technology News online a few days early. Around 5 p.m. EST tonight, it should be "live" at www.lawtechnologynews.com (scroll down to the "LTN Magazine" Box).

Check out our cover story about how BigLaw is trying to find just the right formula for handling e-discovery. We profile efforts at Littler; Winston & Strawn; WilmerHale; Fenwick; Pillsbury; K&L Gates; and several other firms. Littler's Paul Weiner is our "cover boy"!

Our EDD Showcase also includes Cecil Lynn III's annual Year in Review, analyzing the most important 2011 EDD opinions; Patrick Oot's Rules Road Map, explaining how EDD rules are amended:  and my report from Georgetown (yes, I know that was a while back, but the conference was the day after we closed the December issue!) And of course, Craig Ball's column, addressing how to cure over-preservation.

The print edition will be at the show — if you see me, I'll show you the unintended "Easter Egg" that made me laugh out loud when I got the magazine today. Hint: it's on page 75.

You can also listen to an interview with Weiner and Winston's John Rosenthal, on the February edition of my Law Technology Now podcast, which is already live at www.lawtechnologynow.com.

Cya at the Hilton New York!

Dodging a Bullet (For Now)

No Harm, No Foul for Data Destruction: Check out "The Risks of Failing to Preserve Patent Prosecution Files," an article I wrote for LTN's website. It discusses a unique patent litigation remedy for spoliation claims. In Metso Minerals, Inc. v. Powerscreen International Dist., Ltd, the plaintiff delayed filing its lawsuit for more than six years, raising a laches defense that would have significantly limited patent damages. The defendant claimed it suffered “evidentiary prejudice” because the patent prosecutor destroyed his files. The court ultimately rejected the laches defense.

The plaintiff dodged a bullet but risked a substantial damages limitation because the patent prosecutor destroyed his files. Metso is currently on appeal to the Federal Circuit.

Plaintiffs' Duty to Preserve

Littler shareholder Paul Weiner discusses the plaintiffs' EDD preservation obligations, in this article from our sister publication, the National Law Journal. 

"While the focus of electronic discovery is often on the defendant's information technology systems and data sources, litigants should not lose sight of the fact that e-discovery is a two-way street, and obligations apply just as forcefully to plaintiffs — who often anticipate litigation well in advance of any defendant."

Reader Query re: Email Holds

We were queried by a reader, who prefers to remain anonymous:

"I have a question for you. I’ve been looking for a survey or commentary addressing prevalent corporate practices insofar as email preservation with regard to system cleanup — can’t find much. If you know of anything (besides reported opinions), let me know.

Is the standard corporate legal hold preservation practice to:

(a) Suspend auto email system cleanup for ALL legal hold custodians.
(b)Suspend auto email system cleanup for some legal hold custodians — such as key custodians or in more complex cases.
(c) Not suspend auto email system cleanup at all except in bet the company cases.
(d) Not suspend auto email system cleanup ever for any custodian or case?  Or do you find that corporations are all over the board with their thinking in this regard?"

EDD Update denizens, fire away!

Image: Clipart.com

Pippins Order Highlights Preservation Burdens

Writing in the New York Law Journal Dec. 12, H. Christopher Boehning (far right) and Daniel Toal (near right) discuss the Pippins. v. KPMG case and Magistrate Judge James Cott's decision, suggesting that "the resolution of KPMG's motion for a protective order has potentially fair-reaching implications and threatens to radically alter the scope of ESI preservation obligations."

Read it here. 

Images: New York Law Journal

Reset — or Regress — to Neutral?

In our December issue of Law Technology News, Sutherland Asbill & Brennan partner Robert Owen wrote  "Reset to Neutral" — arguing that EDD preservation rules (and judicial interpretation of those rules) have become too vague and too burdensome. Owen proposes five new rules to remedy the perceived problem.

Today, on the LTN website, Milberg's Henry Kelston, senior counsel and a member of the firm's E-Discovery Committee, counters, with "Regress to Neutral." Milberg suggests that Owen's proposal would reset e-discovery back to 1937 when there were no rules, and "litigation outcomes were often dictated by gamesmanship and ambush rather than the merits of the case.

What do you think? Dive into the comments below!

Want more? Listen to the December edition of our Law Technology Now podcast where I interview Owen, at www.lawtechnologynow.com.

Video with Owen here. 

Read my commentary here. 

Image: Clipart.com

The Elephant in the Patent Courtroom

Mark Michels says efforts to streamline preservation in patent cases is a good start, but much more is needed. Read the story here.

 

Image: Stephen Hayes

Reset to Neutral

Sutherland's Robert Owen is among the defense lawyers who are chafing about "overburdensome" and vague preservation requirements. In December's Law Technology News magazine, "Reset to Neutral," Owen argues for five new preservation rules that would simplify and clarify legal hold triggers -- and, he argues, reduce skyrocketing costs for corporate defendants.

Read it here.

Image: Monica Bay

The Tyranny of the Outlier

In his December column in Law Technology News, Craig Ball addresses over-production demands and how to combat them.

"Cooperation in e-discovery doesn't mean bowing to your opponent's demands for over-preservation. Instead, cooperation entails communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands … even if they won't do so."

Read the article here.

P.S. Today is the fifth "birthday" of the amended  EDD federal rules. Blow out the candles with Craig Ball here.

Image: Clipart.com

Rader Is Becoming a Rock Star

Judge Randall Rader appears to flying to the e-discovery spotlight like a hungry moth in July. Ginny LaRoe at The Recorder  chronicles his speech at the recent conference of the U.S. Court of Appeals for the Federal Circuit and U.S. District Court for the Eastern District of Texas. 

He recently announced a new advisory order that calls for strict limits on e-discovery in patent suits, that could "cost accused infringers dearly even on bogus claims," LaRoe reports.  

Our Mark Michels first covered Rader in "The Elephant in the Courtroom," last month on our LTN website (and in the coming December issue of our print magazine).

LaRos says at least one California judge has jumped on the bandwagon:

With the ink on the advisory order barely dry, U.S. Magistrate Judge Paul Grewal of the U.S. District Court for the Northern District of California issued an order curtailing email production in a patent infringement suit pending in his San Jose courtroom, becoming one of the first judges in the country to buy into Rader's vision.

The move caused a buzz among patent litigators waiting to see if the approach will rein in e-discovery costs, or prove unworkable and even lead to more venue shopping.

Grewal's Nov. 2 ruling creates a test case for discovery curbs, and further solidifies the young — and still green — magistrate's status as a bright light on the Northern District bench.

"I think it's both a courageous move," Rader said in an interview after word of Grewal's ruling made its way to Rader's Washington, D.C., chambers, "but also just a wise application of an available tool to make his case more efficient."

Read the full Recorder story here.

Video: The role of IRP in maintaining an innovative economy here.

Image: Roberto Westbrook