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Effective September 1, 2007, the United States District Court for the District of Vermont amended its Local Rules to address the discovery of electronically stored information (“ESI”).  Section (b) of Local Rule 26.1 now requires, where appropriate, the inclusion of deadlines for the disclosure of ESI, and affords an additional 15 days time in which the Discovery Schedule may be filed – Discovery Schedules are due within 45 days (instead of 30) after the filing of the Answer.

In addition, the Court’s Local Form, “Stipulated Discovery Schedule/Order,” has been amended to include language instructing parties to include deadlines for the disclosure of ESI, along with “any other agreements the parties reach, for example, agreements concerning the assertion of privilege or work product after production.”

The Clerk of Court’s Notice of Changes to Local Rules of Procedure is available here, and highlights the recent amendments.

Click on the following links to see amended LR 26.1 and the new local form:

Local Rule 26.1 Discovery

Local Form Rule 26.1(b): Stipulated Discovery Schedule/Order

For a complete listing of local federal rules and guidelines addressing electronic discovery, see our updated post on the subject here.

In an article titled "The New Electronic Discovery Rules" in the July/August 2007 issue, K&L Gates lawyer Tom Smith spoke up on the need for proactive preservation and disclosure of electronically stored information.

"Lawyers cannot ‘punt’ the due diligence of searching for and identifying sources of relevant electronically stored information to their clients; nor can in-house counsel delegate the issue ot the IT staff.  The new rules and related developing case law place the burden squarely on counsel to understand the client’s electronic information systems and to be prepared to explain to opposing counsel and the court where potentially relevant electronically stored information resides, how it is being preserved, and how it will be searched, reviewed and produced."

While the full text of the article is not online, back-issues can be ordered through the International Paralegal Management Association.

By Elena Malykhina from InformationWeek, September 28, 2007:

"The Financial Industry Regulatory Authority this week said Morgan Stanley has to pay $12.5 million in fines to resolve charges for mishandling e-mail dated before the Sept. 11, 2001, terrorist attacks.

Morgan Stanley on numerous occasions failed to provide e-mails requested by claimants in arbitration proceedings and regulators, FINRA said.

The financial company previously had stated that its e-mail servers were destroyed in the 9/11 attacks, resulting in the loss of e-mails archived prior to that date. Morgan Stanley presumably had lost millions of pre-9/11 e-mails, but it was later discovered that they had been restored to the company’s active e-mail system using backup tapes, which were stored in another location. "

Click here to read the entire story on InformationWeek.

From Cohasset:  "The survey’s conclusions are based on data compiled from more than 1600 respondents in 2007 and a total of more than 5500 in the survey’s four prior years – 1999, 2001, 2003 and 2005.

Five major conclusions :

1. Most organizations have serious operational shortfalls regarding the processes by which they manage electronic records, one of their most important assets. The findings of Cohasset’s earlier surveys continue to be verified in this regard.

2. This year’s results confirm that some core deficiencies in records management program components have begun to be addressed – but the overall effectiveness of the programs with regard to life cycle management of electronic records remains bleak.

3. Evidence of "silos" of expertise persists; much greater awareness of risks and opportunities from the "C Level" down is needed. Traditional communications barriers must be broken down between stakeholders and a new commitment to collaboration around recordkeeping requirements and retention management must take place.

4. The number and magnitude of organizational and operational problems reflected in the survey findings collectively represent stunning business risks. Senior management must consider these risks unacceptable to have and untenable to continue.

5. The integration of electronic records into the organization’s records management program should be a priority, and electronic records control gaps should be the focus of immediate corrective action. "

Click here to download the white paper.

From The Recorder by Jessie Seyfer via Law.com:

"Attorneys who once represented Qualcomm Inc. in its ill-fated federal patent case against Broadcom Corp. have asked a judge to pierce their client’s privileged communications.

With the threat of formal sanctions bearing down on them, lawyers at Heller Ehrman and Day Casebeer Madrid & Batchelder — Qualcomm’s former litigation counsel — are asking for a rare exception to privilege so they can explain to the judge how their side failed to produce hundreds of thousands of relevant documents during discovery in the San Diego case. "

Click here to read the rest of the article on Law.com.

This month, the Legal Ethics Committee of the District of Columbia Bar issued Ethics Opinion 341 on the review and use of metadata in electronic records. Attempting to create a compromise position on the issue of metadata mining, the committee found that a lawyer receiving electronic records from an adversary is prohibited from reviewing the records’ metadata only when he has actual knowledge that the metadata was inadvertently sent. In such cases, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of that lawyer’s client. The full text of the ethics opinion can be found here.

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