Catagory:Market Announcements

If you needed more proof that electronic discovery is not just for civil cases, the Western District of Oklahoma has adopted “Best Practices for Electronic Discovery of Documentary Materials in Criminal Cases.”  Adopted on August 20th, these Best Practices recognize the lack of guidance in Federal Rule of Criminal Procedure 16 or in U.S.C. § 3500 regarding the production of discovery materials in electronic from and are intended to “summarize proposed electronic discovery practices.”

Included in the Best Practices are requirements that counsel for the parties shall, by a time prescribed, address issues including the volume of discovery, the litigation capabilities of counsel, and timeframes for production, among other things.  Additional requirements include the production of electronically stored information in .PDF format, the production of an index identifying the “source and/or nature of the materials” produced, and mandatory good-faith discussions of possible cost-sharing measures when handling voluminous discovery.

A full copy of the Best Practices are available here.

By Robert Barnes
Washington Post Staff Writer
Tuesday, December 15, 2009

The Supreme Court will decide whether employees have a reasonable expectation of privacy for the text messages they send on devices owned by their employers.

The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role.

To read the full article, click here.

The Federal Judicial Center has released the preliminary results of its Case-Based Civil Rules Survey.  The survey, as described in the Executive Summary “presents preliminary findings form a survey of attorneys in recently closed civil cases…The report covers discovery activities and case management in the closed cases; electronic discovery activity in the closed cases; attorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attorney attitudes towards specific reform proposals, and, more generally, the Federal Rules of Civil Procedure.”

Included in the section addressing electronic discovery were results indicating that issues related to the discovery of electronically stored information (“ESI”) were discussed in more than 30 percent of planning conferences, that the most common issues discussed were the “parties’ routine practices regarding retention of ESI and the format of production,” and that “approximately 50 percent of parties eventually producing ESI instituted a litigation ‘freeze.’”

A copy of the full report is available here.

By Anthony E. Davis
New York Law Journal
November 5, 2009

There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers — reaching apparently inconsistent conclusions.  This article compares and seeks to reconcile the cases, and to assist lawyers in advising clients on how to avoid the risks that such communications pose.  The first of these cases, Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), was previously featured in an article in this column ("Abusive Litigation Tactics and Loss of Privilege," March 3, 2008), but is revisited here because a New Jersey court recently reached a diametrically opposite conclusion on quite similar facts, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009). The article also reviews other recent decisions in the same general subject area.

To read the full article on Law.com, click here.

In two reports released yesterday, the Institute for the Advancement of the American Legal System at the University of Denver and the American College of Trial Lawyers, set forth rules and guidelines to be utilized by jurisdictions in the creation and implementation of pilot programs aimed at addressing the problems identified by the two groups in their Final Report on the Joint Project of the American College of Trial Lawyers Task Force and the Institute for the Advancement of the American Legal System (“Final Report”) earlier this year.  The Final Report, issued in March of this year, identified a myriad of problems within the nation’s civil justice system, including the ever growing expense of litigation, particularly with regard to discovery, and unnecessary delays in reaching resolution.

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By Jennifer H. Rearden and Farrah Pepper
New York Law Journal
October 29, 2009

It turns out that Jean-Paul Sartre’s famous pronouncement that "hell is other people" was overly broad.  Other people per se are not the problem, but rather other lawyers — and uncooperative ones at that.  A federal judge in the late 1980s confirmed as much, as a recent e-discovery opinion reminds us:  "If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."[FOOTNOTE 1]

To read the full article, posted at Law.com, click here.

By Peter Hall
Pennsylvania Law Weekly
October 19, 2009

An electronic discovery request in a dispute over the authenticity of a classic car has prompted a rare opinion from a Pennsylvania court on the emerging issues surrounding the discovery of electronically stored files by litigants in a civil case.

In Brooks v. Frattaroli, PICS Case No. 09-1709 (C.P. Lebanon Oct. 5, 2009), Lebanon County Common Pleas Judge Bradford H. Charles granted the defendants’ motion for a protective order, ruling that the plaintiff’s discovery request to enter the defendant’s property to inspect and copy computer files was overly broad.

Noting a relative dearth of precedent governing discovery of electronically stored information in Pennsylvania, Charles drew on the decisions of federal courts and recent changes to Federal Rule of Civil Procedure 34 to arrive at a balancing test that weighs the defendant’s right to privacy against the plaintiff’s desire to determine the truth.

To read the full article, posted at Law.com, click here.

Beginning October 1st, Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin.  The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule26(f)(2).  Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices.  Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court.  As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.

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The Wall Street Journal , Sep. 21, 2009
By Chad Bray

NEW YORK — Lawyers for former Bear Stearns fund manager Matthew Tannin have asked a judge to prohibit prosecutors from introducing evidence at his criminal trial regarding the erasure of his personal email account in 2008, calling it an "eleventh-hour smear."

In a letter Monday, Susan Brune, a lawyer for Mr. Tannin, said the government’s evidence has failed to establish "that Mr. Tannin destroyed any documents" and Mr. Tannin and his counsel have preserved all documents.

At a hearing last week, prosecutors from the U.S. Attorney’s office in Brooklyn said that they had received a letter from Google Inc. indicating Mr. Tannin’s Gmail account was erased in March 2008.

Read the entire article here.

Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information.  Recently, Thomas Allman, a recognized authority on electronic discovery, gave permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country.  Our thanks to Mr. Allman for his analysis, and his gracious permission to post the article here. 

Introduction

Many states have adopted state-wide provisions to address some of the unique procedural issues involved in e-discovery. In addition, a number of “commercial” or “business” courts within states, as well as local courts, have adopted specialized rules on the topic.

As of September 2009, twenty-three states have adopted statewide e-discovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (“2006 Amendments”). In addition, several states have adopted, typically as a separate measure, an analog to the Federal Evidence Rule 502 dealing with waiver of the attorney-client privilege or work product protection.

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