Archive - January 2008

The Virginia Supreme Court’s Advisory Committee on Rules of Court has unanimously concluded that it should publish a Tentative Draft of possible rules amendments on the topic of electronic discovery.  The Tentative Draft takes into account the detailed comments on an initial discussion draft circulated several months ago.  It is the Advisory Committee’s plan to consider these draft rules at its April, 2008 meeting and to discuss all comments and suggestions received concerning the structure and content of the proposed provisions.

If approved by the Advisory Committee, the rules proposals would be recommended to the Judicial Council of Virginia and the Supreme Court, which will decide whether the rules should be approved and promulgated as Rules of Court.

Comments on the Tentative Draft should be sent by March 15, 2008 to:

Karl R. Hade, Executive Secretary
Supreme Court of Virginia
00 North Ninth Street
Richmond, VA 23219

The Alaska Supreme Court is now seeking public comment on a proposal to amend the Alaska Rules of Court to align Alaska’s discovery rules with the December 2006 federal rules amendments addressing the discovery of electronically stored information.  The Civil Rules Committee is recommending amendments to Alaska’s Civil Rules 16, 26, 33, 34, 37, and 45.

Comments are due by Friday, February 29, 2008, and may be submitted by mail, fax, or email:

Beth C. Adams
Court Rules Analyst
Snowden Administrative Office Building
820 West Fourth Avenue
Anchorage, AK 99501-2005

Fax number:  (907) 264-8291

Email address:  badams@courts.state.ak.us

From a January 18, 2008 article by Pete Yost of the Associated Press:

A White House chart indicates no e-mail was archived on 473 days for various units of the Executive Office of the President, a House committee chairman says.

Rep. Henry Waxman, D-Calif., says a White House spokesman’s comments suggesting no e-mail had disappeared conflicted with what congressional staffers were told in September.

On Thursday night, Waxman said he was scheduling a hearing for Feb. 15 and challenged the White House to explain spokesman Tony Fratto’s remark that "we have absolutely no reason to believe that any e-mails are missing."

Fratto based his comment on the contents of a White House declaration filed in federal court casting doubt on the accuracy of a chart created by a former White House employee that points to a large volume of e-mail gone from White House servers.

Click here to read the full article.

The Supreme Court of Ohio is now accepting public comments on proposed amendments to the Ohio Rules of Civil Procedure addressing electronic discovery.  The amendments to Rules 16, 26, 33, 34, 36, 37, and 45 are based on the December 2006 amendments made to the Federal Rules of Civil Procedure.  

Click to view the proposed amendments as published for public comment.

Comments on the proposed amendments must be submitted in writing to:  Jo Ellen Cline, Legislative Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than March 4, 2008.

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Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 15, 2008)

On January 15, 2008, a declaration authored by the White House’s Chief Information Officer was filed in response to the Court’s January 8 Order, discussed in our January 10, 2008 post on the subject.  The declaration responds to four questions posed by Magistrate Judge John M. Facciola regarding the backup media being preserved by the White House for purposes of the litigation.  Among other things, the CIO confirms that emails sent or received during the 2003-2005 time frame should be contained on existing backup tapes.  However, the CIO states that her office “does not know if any emails were not properly preserved in the archiving process.”

The CIO further states that her office is undertaking an “independent effort” to determine whether there may be “anomalies” in Exchange email accounts for any particular days resulting from the potential failure to properly archive emails for the 2003-2005 time period.  The CIO states that this “independent assessment” is expected to be completed in the near term.

Click to view a Washington Post article on this most recent filing and for additional background.

To modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information, the Judicial Council of California has proposed amending California’s Civil Discovery Act and two rules in the California Rules of Court on the management of civil cases.

The proposal has two parts.  First, it would amend the Civil Discovery Act (Code Civ. Proc., §§ 2016.010 et seq.) to include new provisions relating to electronic discovery and would add two new sections relating to electronic discovery to the act.  Second, the proposal would amend two case management rules in the California Rules of Court (rules 3.724 and 3.728) to encourage parties to identify and discuss issues relating to electronic discovery early in the course of litigation and to encourage courts to address these issues in case management orders.  These rule amendments are closely connected with, and are intended to assist in implementing, the proposed legislation.  The rule proposals would not go forward without the legislation.

Click to view the full proposal and invitation to comment:  Electronic Discovery: Legislation and Rules

The deadline for comments is Friday, January 25, 2008.  Comments may be submitted through the Judicial Council’s online comment form, or by regular mail to the following address:

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On January 10, 2008, the Arkansas Supreme Court accepted the Committee on Civil Practice’s proposals for changes in the Arkansas Rules of Civil Procedure and Rules of Evidence to address the inadvertent disclosure of information protected by the attorney-client privilege, or any other evidentiary privilege, or the work product doctrine.  The amendments go into effect immediately.

The Reporter’s Notes explain the rationale behind the amendments:

Lawyers do their best to avoid mistakes, but they sometimes happen.  Discovery has always posed the risk of the inadvertent production of privileged or protected material.  The advent of electronic discovery has only increased the risk of inadvertent disclosures.  This amendment addresses this risk by creating a procedure to evaluate and address inadvertent disclosures, including disputed ones.

Click to view the Arkansas Supreme Court Order approving the amendments, which sets out the full text of the amendments and the accompanying Reporter’s Notes.