Catagory:Market Announcements

On December 19, 2008, the Supreme Court of Alaska adopted amendments to Alaska’s Rules of Civil Procedure to address the discovery of electronically stored information.  The amendments affect rules 16, 26, 33, 34, 37, and 45 and become effective April 15, 2009.

The order approving the amendments is available here.

On October 1, 2008, the Supreme Court of Virginia adopted amendments to Virginia’s Rules of Civil Procedure.  The new rules address the discovery of electronically stored information.  The amendments affect rules 4:1, 4:4, 4:8, 4:9, 4:9A, and 4:13.  The rules became effective as of January 1, 2009.

The order approving the amendments is available here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

Effective August 1, 2008, Maine has adopted amendments to its Rules of Civil Procedure to “address the need for specific treatment of the discovery of electronically stored information.”  As stated in the Advisory Committee Note to Rule 16, the amendments were taken largely from the 2006 amendments to the Federal Rules of Civil Procedure and practitioners are instructed that “guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee’s Notes, and cases applying to the federal rules.”  The amendments affect rules 16, 26, 33, 34, and 37.

To view the amended rules, click here.

Note:  Following adoption of the amended rules, the court adopted corrections to the amendments of rules 34 and 37.  To view the corrections to the amendments of Rule 34 and Rule 37, click here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

On December 1, 2008 California Assembly Member Noreen Evans introduced Assembly Bill 5, the “Electronic Discovery Act” – a bill that would amend California’s Civil Discovery Act to include rules governing the discovery of electronically stored information.  As stated in AB 5:

This bill would establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any party to the action.  This bill would permit discovery by the means of copying, testing, or sampling, in addition to inspection of documents, tangible things, land or other property, or electronically stored information.

The proposed amendments closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.

This bill is virtually identical to the “original” e-discovery bill, Assembly Bill 926, vetoed by Governor Arnold Schwarzenegger earlier this year.  The notable exception is the inclusion of an urgency clause which would make the bill effective immediately upon signing.

To read the full text of Assembly Bill 5, click here.

The risks associated with e-mail miscommunication and misdirection have been well documented. Because these risks originate from e-mail users, perhaps the best way to mitigate such risks is to help individual e-mail users remember and implement a checklist for sending e-mails safely. This client alert, authored by K&L Gates Partner Thomas Smith and Associate Daniel Miller, presents a simple mnemonic device for "SAFE E-MAIL" that can remind individual e-mail users of key issues to consider when drafting and sending e-mail messages.

To view the complete alert online, click here. 

Arkansas
Effective January 10, 2008 Arkansas has amended Rule 26 to address inadvertent disclosure.

Rules 26 General Provisions Governing Discovery (See section 26(b)(5))

Iowa
Effective September 1, 2008 the Iowa District Court Trial Scheduling Order was amended to address the discovery of electronically stored information.

Rule 23.5 – Form 2: Trial Scheduling Order

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Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008)

On December 1, 2008, the Court of Appeals for the Federal Circuit issued its opinion affirming the lower court’s findings that Qualcomm breached its duty to disclose the patents at issue in the underlying case and thus waived the enforceability of those patents.  The Court of Appeals also upheld the lower court’s finding that this constituted an “exceptional case,” and the resulting award of attorney’s fees to Broadcom.  The Court of Appeals took exception, however, to the scope of the waiver remedy articulated by the lower court, vacated that portion of the order and remanded the case with instructions to narrow the scope.

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According to a Revisor’s note:

The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb. Ct. R. Disc. § 6-326, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule.

This affects recent amendments to former rules 33, 34, and 34A, addressing e-discovery issues. Those rules are now known as follows:

§ 6-333     Interrogatories to Parties
§ 6-334     Production of documents, electronically stored information, and things and
                   entry upon land for inspection and other purposes
§ 6-334A  Discovery from a nonparty without a deposition

Effective July 18, 2008

For a current list of all states that have enacted special e-discovery rules, see our updated post here.
 

Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues.  The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009.  The amendments include changes to the following rules:

Ariz. R. Family Law P. 49      Disclosure
Ariz. R. Family Law P. 51      Discovery
Ariz. R. Family Law P. 52      Subpoena
Ariz. R. Family Law P. 62      Production of Documents and Things and Entry
                                                  Upon Land for Inspection and Other Purposes
Ariz. R. Family Law P. 65      Failure to Make Disclosure or Discovery; Sanctions

To read the order and see the amendments, click here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.
 

At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.  In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery.

The following Districts have just been added to our collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols:

Northern District of Illinois
Judge Virginia Kendall’s Case Management Procedures, Discovery
Magistrate Judge P. Michael Mahoney’s Suggested Case Management Order

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