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July 05, 2012

Mark Michels Videos: Cases & Costs

Michels1_300Check out Mark Michels two videos, addressing spoliation, controlling costs, and other EDD trends, taped at LegalWest Coast:

Efforts to Rein in Rising EDD Cost, part 1  and part 2.

Image: Monica Bay

June 27, 2012

FJC Pocket Judge Update

Fjc_logo128The Federal Judicial Center -- the research and education agency of the federal judicial system -- has published the second edition of its influential booklet, Managing Discovery of Electronic Information: A Pocket Guide for Judges, by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins. The 48-page publication updates the previous 2007 edition, and can be downloaded free from the center's website. It covers a range of topics, from explaining the difference between conventional paper discovery and electronically stored information, to providing tips on a judge's role. The booklet also includes a five-page glossary, mostly derived (with permission) from The Sedona Conference Glossary: E-Discovery & Digital Information Management (3d ed. 2010).

While reaction has been largely positive, there are some rumblings of discontent about the new publication. Read the full story here.

What do you think about the update?

Image: Federal Judicial Center.

April 06, 2012

FRCP Preservation Rule Update

Exploration400Today's Law Technology News article, "Federal Judicial Advisory Committee Ponders New E-Discovery Rules," reports on the Civil Rules Advisory Committee’s March 22-23, 2012, meeting in Ann Arbor, Mich. Of particular interest to EDD practioners is the work of the discovery subcommittee on a uniform rule for spoliation sanctions.

The preservation debate is intense. The Department of Justice tells the subcommittee that any change to the preservation rule is premature, while the Lawyers for Civil Justice urgently call on the subcommittee to move forward aggressively on broad-based discovery and preservation rules reform.

The formal process requiring Supreme Court approval and Congressional notice takes time. See Patrick Oot's "Rules Road Map a Quick Guide to How E-Discovery Rules Are Updated." Even if the committee is able to reach a consensus and resolve the considerable number of substantive issues identified by the subcommittee and commentators, a spoliation sanctions rule would not likely be effective before December 2015.

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March 01, 2012

E-Discovery Can Be Criminal

When it comes to e-discovery, the criminal division has "come a long way from the late 1990s to mid-2000s — when the electronics working group simply focused on how to scan paper documents," reported LTN's Evan Koblentz on the release of the Recommendations for ESI Discovery in Federal Criminal Cases by the Joint Electronic Technology Working Group.

Now, U.S. District Judge Shira Scheindlin weighs in, along with technology consultant Jeffrey Rabkin, with a careful consideration of the "core concepts" of the recommendations, what controversies they might raise in practice, as well as what questions the working group needs to address in future additions to the guidelines.

Core concept: the need for a meet and confer, much like that outlined in Rule 26(f) of the FRCP. Handcuffed_laptop400

Controversy: a clause that states in response to ESI volume "the parties increasingly will employ software tools for discovery review," which could be read as an endorsement of technology-assisted review in criminal cases.

The future: How exactly do we define the government's duty to preserve in a potential criminal case? The defense's?

Read the New York Law Journal article, "Core Concepts of New ESI Guidelines for Criminal Law."

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December 15, 2011

House Judiciary Subcommittee Hearing Re: Rules

Update on Tuesday's Judicial Subcommittee hearing about whether or not EDD rules should be changed:

• Milberg's Henry Kelston report will be up shortly on the LTN website.
• Here's a link (hat tip to Mark Michaels) to the video webcast.
• Here's Sutherland's alert by Robert Owen.
• Here's a link to Evan Koblentz' preview story (with a comment from LTN's e-discovery columnist, Craig Ball).

Dive into the discussion!

November 23, 2011

Growing Trend: EDD Special Masters

Conti.Joy.FlowersThe use of e-discovery "special masters" — who help parties frame and execute the discovery of electronically stored information — is a growing trend. At last week's Georgetown Law Advanced eDiscovery Institute, there were podium discussions about court-related pilot programs as well as informal conversations among attendees about the new job opportunities.

On a Friday panel, Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania outlined a pilot project in progress to help ligitants identify and use special masters. Conti, who chairs the court's Alternate Dispute Resolution Implementation Committee, said the court decided to create a list of approved special masters. Finalists were selected for the one year pilot effort, that began in May, she explained.

Acccording to the court's website, a subcommittee, led by Judge Nora Fischer, and including court IT personnel and local practitioners with EDD experience, provided recommendations to the ADR committee, ultimately resulting in approved application and selection criteria. "The final set of criteria approved by the ADR Committee includes active bar admission; demonstrated litigation experience, particularly with electronic discovery; demonstrated training and experience with computers and technology; and mediation training and experience."

Read more here.

Image: Courtesy of the U.S.D.C.

October 11, 2011

CRAC to Consider Preservation Rule in November

Andrea Kuperman, chief counsel of the  Civil Rules Advisory Committee, has advised that the November Civil Rules Committee meeting will include discussion of the discovery subcommittee's examination of whether to recommend a rulemaking response to concerns about preservation/sanctions for spoliation/electronic discovery.

Materials considered by the subcommittee will be made a part of the agenda materials for that meeting. Because there is a significant amount of material, all of the materials that the subcommittee has considered are currently available on the Federal Rulemaking website. The website will be updated if additional submissions are received.

Here are links to the documents currently on the website:

Materials Produced by the Advisory Committee (pdf)
Proposed Agenda
Notes from the Mini-Conference on Preservation and Sanctions
Preservation/Sanctions Issues
Elements of a Preservation Rule
Case Law on Elements of a Potential Preservation Rule

Comments Submitted (pdf)
Department of Justice
Center for Constitutional Litigation
Lawyers for Civil Justice
Thomas Y. Allman
New York Bar Association
Thomas Y. Allman, Jason R. Baron, and Maura R. Grossman
Kroll Ontrack

Empirical Data or Research (pdf)
RAND Corporation – Costs of Pre-Trial Discovery of Electronically Stored Information
Civil Justice Reform Group – Preliminary Report on the Preservation Costs Survey of Major Companies
The Sedona Conference – Membership Survey on Preservation and Sanctions
Federal Judicial Center – Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases

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