EDD Update

NY State Courts Bolster EDD

New York state alterations to §202.10(b) and §202.70(g) of the Uniform Rules of Trial Courts became effective on 8/17, after approval by Chief Judge Jonathan Lipmann and the PJs of four appellate division departments.  The New York Law Journal offers this analysis by Joel Stashenko about how the amendments —  which state that all attorneys "must be sufficiently versed in matters relating to their clients' technology systems to discuss competently all issues relating to electronic discovery" at preliminary conferences ‚  will push lawyers to understand EDD.

And after 11 years of tinkering, New York has also begun to institute mandatory e-filing in some areas, he reports.

An Open Letter to Judges About Computer Forensic Exams

 Your Honors:

I just read another opinion where the Court decided to let one side's computer expert examine an opposing party's computers. The Court seemed more concerned with who would pay for the exam than what its consequences might be.

I'm a lawyer and computer forensic examiner, and I make part of my living doing just the sort of examinations the court ordered.  I've done a whole bunch of them.  So, while part of me wants to encourage courts to order more forensic exams — and I can surely attest to their efficacy in resurrecting data thought gone and exposing case-making evidence — the angel at my ear requires me to softly whisper, "WHAT THE HECK WERE YOU THINKING, JUDGE?!? 

Why didn't you use a neutral?

I could say, "You never know what a computer forensic examiner will find," except I KNOW what we find: We find trouble.

Judge Andrew Peck & Craig Ball Discuss Costs

Magistrate Judge Andrew Peck and Craig Ball share their discussion about Ball's column in the February issue of Law Technology News: (Feel free to dive into the discussion).

Judge Peck:
Craig, I read your article re: recoverable costs with interest (I always enjoy your articles). However: at least in the Southern District of New York (and I believe most federal courts), recoverable court costs for copies have traditionally been limited to copying trial exhibits (or getting records certified or similar costs not relevant to your article).

Thus, if a party produced 10,000 pages in discovery, that copying cost would not be recoverable -- but the cost of copying the 100 trial exhibit pages would be.

So I see very little opportunity to recover e-discovery costs via Rule 54 and 28 USC.

Am I missing something?

Craig Ball:
Your Honor, thanks for the kind note.; You're not missing anything.I see that in the SDNY, the rules are interpreted in a very conservative way to shift little expenditure as costs. But, this is by no means standard, and it's the unpredictability among the circuits that moves me to argue that the subject needs to be sensibly standardized, especially where we are talking about big bucks (and with e-discovery, what other discussion is there?).

Judicial Boxing Match?

With the Winter Games in high gear, it is hard not to think of the headline for the main card of an e-discovery boxing match between two federal judicial heavy hitters:

Rosenthal vs. Scheindlin 

The introductions of a boxing announcer come to mind reading Judge Rosenthal's recent opinion in Rimkus v. Cammarata, 07-cv-00405 (SDTX Feb. 19, 2010) and her subtle (or not so subtle depending on how much is read into her opinion) critique of Judge Scheindlin's very much discussed opinion in The Pension Committee of Montreal, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 15, 2010).  And in this corner, at the forefront of e-discovery, legal holds and the duty to preserve all relevant evidence... hailing from the toughest city in the world - New York... Ms. ESI... Judge Scheindlin.  And in this corner... mover and shaper of the Federal Rules of Civil Procedure... Champion of the Safe Harbor... hailing from the toughest state in the Union - Texas... Ms. FRCP amendments... Judge Rosenthal.

IM-PECK-ABLE

Magistrate Judge Andrew Peck, who serves on the U.S. District Court for the Southern District of New York, has been quite active in drafting e-discovery rulings, such as March's William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co. and Anti-Monopoly, Inc. v. Hasbro, Inc. -- both establishing important guidance for the creation keywords for searching electronically stored information. (See here, here, and here.)

But did you know that Peck also has written a reference book on all things Sherlock Holmes? Or that he drives to work (unusual for a Manhattanite). And you probably won't be surprised to see that he and I share the same favorite website. After all, he lives in New York City!

Check it out here in the October issue of Law Technology News.

E-Discovery Tips From the Bench

Judges are seen as a circumspect and guarded lot, but there are few topics they enjoy discussing more than the art of litigation and e-discovery. Some advice on handling EDD matters: Don't ask a judge "for everything and a pony" and don't treat meet and confers like a "drive-by conference."

California EDD Rules - Richard Best

Richard Best, a California EDD Referee, offers his observations about the pending California EDD Rules:

At this point, legislation enacting e-discovery rules in California appears to be a political certainty and will likely have no opposition.

The comments on the proposal submitted to the AOC [Administrative Office of the Courts] and the response by its staff provide some insight to the understanding and intent of the advocates of the legislation.

At the Judicial Council meeting on April 25th, questions asked by a few members and responses of the proponents raised additional issues. The proposal and a spreadsheet summarizing all the comments and the committee's responses covers 147 pages and was posted on April 18, 2008. The spreadsheet, the agenda and the audiocast of the Judicial Council presentation and discussion may be found here.

Cal Judicial Council Proposes New EDD Rules

The California Bar Journal reports that the state's Judicial Council is proposing new EDD statutes and rules. Reporter Nancy McCarthy says the proposals have drawn about 50 comments so far, and the council's Civil and Small Claims Advisory Committee will likely revised the proposals after the comments are evaluated.

The proposed rules are here. Observers suggest that they mirror the 2006-amended FRCP rules, and probably won't be controversial, McCarthy notes.