Federal eDiscovery Rules
April 22, 2013
By Doug Austin
As reported by Henry Kelston in Law Technology News (Are We on the Cusp of Major Changes to E-Discovery Rules?), another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year. The United States Courts' Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.
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December 19, 2012
By Jane Gennarelli
As a litigation technology professional, you are probably very knowledgeable about electronic discovery and the Electronic Discovery Reference Model, so we’re not going to spend time discussing the technical aspects of eDiscovery. I would, however, like to address how electronic discovery fits into the bigger litigation picture, and how it has affected the practice of litigation. And we’ll start with how it affected the courts’ rules for how a case proceeds.
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November 27, 2012
By Doug Austin
Last year, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery. Now, its Judicial Resources guide has been updated and the free version is available on the Sedona Conference web site.
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October 30, 2012
By Doug Austin
We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI). But, not all cases are Federal jurisdiction cases. Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery. One of those states is Tennessee. Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues. Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III. I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.
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October 26, 2012
By Doug Austin
I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules! Here are the highlights.
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October 10, 2012
By Jane Gennarelli
Law firms often find themselves scrambling to keep up with the demands that eDiscovery work imposes on litigation support and technology staff. New employees quickly learn what they absolutely must to do their jobs. Unfortunately, however, they often don’t learn everything they should know to perform at higher levels and to be as useful to litigators as they could be.
Time and again I see a huge hole in litigation technology staff knowledge: many don’t know litigation! They don’t know the process, they don’t understand the terminology, they don’t know what the attorneys really do with the work product they provide, and they can’t, therefore, anticipate what attorneys will need next. This blog series will be aimed at litigation technology professionals who need help in this area.
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August 02, 2012
By Doug Austin
In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law. When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly. A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.
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June 27, 2012
By Doug Austin
As noted in Law Technology News, eDiscovery vendor iConect hosted a free webinar last week entitled "Duty of Competency and E-Discovery", in which Joshua Gilliland, author of Bow Tie Law's Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and eDiscovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia.
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June 20, 2012
By Doug Austin
In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.
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June 13, 2012
By Doug Austin
Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state. However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.” Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.
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May 07, 2012
By Doug Austin
The trend for defendants requesting plaintiffs to be responsible for eDiscovery costs when they lose is continuing. Sometimes that request is granted, at least partially, as in this case and this case. In another case, taxation of eDiscovery costs was initially granted, but then reversed due to the parties' agreement to split the costs. Then, there’s the case of Race Tires America, Inc. v. Hoosier Racing Tire Corporation. Last May, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March of this year, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.
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April 30, 2012
By Doug Austin
Special Master, that is. Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here). Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases. Here are a few highlights.
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April 10, 2012
By Doug Austin
With cases related to preservation and spoliation issues continuing to be prevalent, as well as continued greater emphasis on proportionality in eDiscovery, the Advisory Committee on the Federal Rules of Civil Procedure has requested comments on possible changes to the federal rules relating to preservation and spoliation of evidence. Much of the framework for the proposed rules was derived from Judge Shira Scheindlin's opinions on eDiscovery, particularly those in the Zubulake case. These changes could be finalized as soon as December 2013.
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March 30, 2012
By Doug Austin
On Dec. 8 of last year, the U.S. District Court for the District of Delaware revised the "Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)" for the third time to reflect recent changes in technology and to address concerns of attorneys regarding the discovery of ESI. The new Default Standard expects the parties to reach agreements cooperatively on how to conduct discovery under Fed. R. Civ. P. 26-36. If the parties are unable to agree on the parameters and/or timing of discovery, the default standards will apply until further order of the Court or the parties reach agreement (which is why it’s a default standard).
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March 16, 2012
By Doug Austin
Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212. Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data. Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case. But, do you understand just how many groundbreaking opinions resulted from that case? For those who aren’t aware, let’s take a look back.
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March 07, 2012
By Doug Austin
In a blog post last October, we discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. At that time, the "Model Order on E-Discovery in Patent Cases" had been unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in such cases. This version of the model order is included in proposed local rule amendment GO-12-06 for the Eastern District of Texas. The amendment has been approved by the judges of the district, subject to public comment, the deadline for which is March 23, a little over two weeks from now.
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February 23, 2012
By Doug Austin
Criminal attorneys, are you discouraged that there is a lack of eDiscovery rules and guidelines for criminal cases? If you work for the Department of Justice or other related law enforcement agencies, cheer up! As noted in the Law Technology News article, DOJ Lays Down the Law on Criminal E-Discovery Protocols, written by Evan Koblentz, the government's Joint Electronic Technology Working Group (JETWG), led by the DOJ, unveiled its best practices guide for eDiscovery at a federal software summit in Washington on February 10. The 21 page document is “intended for cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case”.
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February 17, 2012
By Doug Austin
Today’s thought leader is Christine Musil. Christine has a diverse career in engineering and marketing spanning 18 years. Christine has been with IGC since March 1996, when she started as a technical writer and a quality assurance engineer. After moving to marketing in 2001, she has applied her in-depth knowledge of IGC's products and benefits to marketing initiatives, including branding, overall messaging, and public relations. She has also been a contributing author to a number of publications on archiving formats, redaction, and viewing technology in the enterprise.
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January 12, 2012
By Doug Austin
Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year. It’s interesting to identify common trends among the prognosticators and also the unique predictions as well. But we promised our own predictions for today, so here they are. One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry. Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012.
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January 11, 2012
By Doug Austin
With a nod to Nick Bakay, “It's all so simple when you break things down scientifically.” The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends. Ten sets of predictions in all! Here are the trends.
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December 15, 2011
By Jason Krause
Today's thought leader is Bennett B. Borden. Bennett is the co-chair of Williams Mullen’s eDiscovery and Information Governance Section. Based in Richmond, Va., his practice is focused on Electronic Discovery and Information Law. He has published several papers on the use of predictive coding in litigation. Bennett is not only an advocate for predictive coding in review, but has reorganized his own litigation team to more effectively use advanced computer technology to improve eDiscovery.
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December 14, 2011
By Jason Krause
Today’s thought leader is Jason R. Baron. Jason has served as National Archives' Director of Litigation since 2000 and is Co-Chair of the Working Group on Electronic Document Retention and Production for the Sedona Conference. Jason is also one of the founding coordinators of the TREC Legal Track, a search project organized through the National Institute of Standards and Technology to evaluate search protocols used in eDiscovery. This year, Jason was awarded the Emmett Leahy Award for Outstanding Contributions and Accomplishments in the Records and Information Management Profession.
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