Catagory:Market Announcements

Last week the Delaware Court of Chancery issued new guidelines addressing the preservation of electronically stored information.  The guidelines are intended to “remind all counsel … of their common law duty to their clients and the court with respect to the preservation of electronically stored information.”  Although less than two pages long, the guidelines offer a straightforward discussion of the preservation obligation that arises upon anticipation of litigation and address specific topics including the need for attorney oversight in preservation, steps to be taken in “most cases,” “potential problem areas,” and the possibility of limiting or even eliminating the discovery of ESI upon agreement with opposing parties and their counsel, among other things.

A full copy of the guidelines are available here.

As a way of continuing to enhance the value of Electronic Discovery Law, we recently embarked on a project with the e-Discovery Reference Model (EDRM) to classify the more than 1,800 cases in our case database according to the EDRM standards.  These cases will retain their existing searchable tags in addition to the new EDRM classification.  To accomplish this, several EDRM member organizations will soon participate in an “EDRM Coding Challenge” to determine how to most efficiently and accurately identify the EDRM phases to be associated with each case in the database.  Thanks to George Socha, Tom Gelbmann, and the challenge participants from EDRM for their contributions to this project so far and special thanks to LexisNexis and Applied Discovery for supplying the full text of the first 200 case opinions to be coded.  Please watch our blog for updates on this exciting collaboration.

In the meantime, our case database remains available for your e-discovery research needs.

On January 1, 2011, the e-discovery amendments to Wisconsin’s rules of civil procedure become effective.  The amendments, affecting Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, address for the first time the discovery of electronically stored information (“ESI”).  Among other things, the amendments address issues including the parties’ obligation to meet and confer, the format of production, and safe harbor from sanctions when ESI is lost as the result of the routine, good-faith operation of an electronic system.

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By: Martha Dawson, Michael Goodfried, K&L Gates

This article appeared in DRI’s E-Discovery Connection, Volume 5 Issue 3, on December 23, 2010

Consider how you, or someone you know, uses social networking sites; and consider how valuable this could be in litigation.

• “Check out the photos from my climb of Mt. Rainier. It rocked! I guess my back injury wasn’t that bad after all.”
• I can’t believe what my boss just did.”
• “My kids are driving me crazy. Anyone want to borrow them for the night?”

Are Social Networking Sites Discoverable?

Social networking sites are internet sites on which individuals or companies can create profiles about themselves and share information with others.  Users can update their status, type blog entries, post pictures or videos, send email or instant messages, or post comments on the profiles of their contacts, among many other offerings.  One of the most important aspects of social networking sites is the ability to link up with other users as “friends” or “contacts,” and decide with whom to share information.  Users can control their privacy settings and choose which information to make publically available, share with their contacts, share with their contacts’ contacts (friends of friends), or show only to certain individuals.  Some of the most popular social networking sites are Facebook, MySpace, Twitter, and LinkedIn.

To read the full article, click here.

By: Julie Anne Halter, K&L Gates, Seattle

This article appeared in the Puget Sound Business Journal the week of December 10-16.

Effective October 1, 2010, the UK has introduced Practice Direction 31B addressing in detail the disclosure of electronic documents.  According to the Ministry of Justice, this new Practice Direction “aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.”  A comprehensive discussion, the Practice Direction addresses a myriad of topics, including preservation, topics for discussion between the parties, reasonable searching, keyword and automated searching, the disclosure of metadata, and the format of production.  The Practice Direction also provides an “Electronic Documents Questionnaire” which may be exchanged by the parties “in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.”  The questionnaire, like Practice Direction 31B, is quite detailed and covers issues like the scope of a reasonable search, suggested search methodologies, preservation, and potential problems related to electronic disclosure.

Practice Direction 31B is available here.

In a press release dated November 4, 2010, the European Commission outlined its goal of reviewing and amending its Data Protection Directive to address “challenges raised by new technologies and globalisation.”  The press release announces the Commission’s intention to “put forward legislation next year to strengthen individuals’ rights while also removing red tape to ensure the free flow of data within the EU’s Single Market” and sets forth a “series of key goals”, including “[s]trengthening individuals’ rights,” “[e]nsuring high levels of protection for data transferred outside the EU,” and “[m]ore effective enforcement of the rules.” The press release is entitled, “European Commission sets out strategy to strengthen EU data protection rules” and begins:

What happens to your personal data when you board a plane, open a bank account, or share photos online? How is this data used and by whom?  How do you permanently delete profile information on social networking websites?  Can you transfer your contacts and photos to another service?  Controlling your information, having access to your data, being able to modify or delete it – these are essential rights that have to be guaranteed in today’s digital world.  To address these issues, the European Commission today set out a strategy on how to protect individuals’ data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU.  This policy review will be used by the Commission with the results of a public consultation to revise the EU’s 1995 Data Protection Directive.  The Commission will then propose legislation in 2011.

To read the entire press release, click here.

As of November 1, 2010, Oklahoma’s Code of Civil Procedure specifically provides for the discovery of electronically stored information (“ESI”).  Closely mirroring the Federal Rules of Civil Procedure, the Code addresses issues including the identification of “not reasonably accessible” information, the format of production, and sanctions for the loss of ESI resulting from the routine, good-faith operation of an electronic information system.

Oklahoma’s Code of Civil Procedure is available here.
 

By Julie Anne Halter, K&L Gates

This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division.

In 2007, the “digital universe” contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2.25 million pages) for each person on the planet.  Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006.  And if you take a minute to consider the last time you wrote or received a hand-written letter, used a pay phone, or consulted a casebook to answer a burning legal question, there is no denying that the world has evolved … and with it, litigation.

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