Catagory:Market Announcements

These two opinions, both filed on November 1, 2006, discuss for the first time the extent to which inaccessible electronic data is discoverable and who should pay for its production under the North Carolina Rules of Civil Procedure.

Bank of America Corp. v. SR Int’l Bus. Ins. Co., Ltd., 2006 WL 3093174, 2006 NCBC 15 (N.C. Super. Nov. 1, 2006)

Analog Devices, Inc. v. Michalski, Case No. 01 CVS 10614, 2006 NCBC 14 (N.C. Super. Nov. 1, 2006)

The Analog Devices case addresses the issues in the context of a party-to-party request for production of documents, and the Bank of America decision addresses those issues in the context of a subpoena to a nonparty. “In some instances the considerations are the same, and in others they differ dramatically. In both contexts, trial judges should be guided by the language of the applicable Rules of Civil Procedure, supplemented by the Guidelines adopted by the Conference of Chief Justices.”

The case names contain links to the opinions on the court’s website, and summaries will be posted on www.ediscoverylaw.com.

From the August Issue of KPMG Pharmaceutical Insider:

"As most large pharmaceutical companies face dozens of lawsuits at any given time, the rapid growth of electronic documents and e-mail has opened up the new legal frontier of electronic document discovery (EDD).

Drug companies also must take into account sanctions and other penalties. Companies are often subject to sanctions when they do not or cannot produce evidence upon demand, according to Todd Nunn, a partner in the Seattle law firm of Preston Gates & Ellis.

"Companies can really get into trouble for not having adequate policies in place for the retention of electronic documents," says Nunn. "It really affects their ability to respond effectively to litigation." "

Read the entire story here.

From NPR’s All Things Considered:

"Legal Liability: E-mails may travel from sender to receiver in a flash, but their digital trail lingers much longer — and that has landed some firms in hot water. A 2006 survey of more than 400 companies found that 15 percent have fought a lawsuit triggered by a worker’s careless correspondence. One in four firms has had a worker’s e-mail subpoenaed, and about the same number say they’ve fired a worker for misusing electronic correspondence."

More here.

As the Dec. 1 deadline for new Federal Rules of Civil Procedure draws closer, it’s time to go tech or close shop.

""Everybody is a little terrified," said Martha Dawson, a partner with Seattle-based Preston Gates & Ellis. Dawson practices in the firm’s document analysis technology group. With some litigants in recent cases subjected to harsh sanctions for bungling e-discovery demands, clients and attorneys are worried about their ability to organize unwieldy information systems, she said. "

Creating particular anxiety is one component of the rules that requires parties to meet and address the preservation of electronic information 21 days before their first scheduling conference. New Rule 26(f) calls for parties to discuss "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." "

Read the entire article from Leigh Jones at National Law Journal here.

A great article on dynamic data by Microsoft’s Tom Burt, Corporate Vice President and Deputy General Counsel, Litigation, and Greg McCurdy, Senior Attorney, in the August 2006 of The Pocket Part, the online supplement to The Yale Law Journal.

"The forthcoming Federal e-discovery Rules are a welcome advance, but they do not address all of e-discovery’s challenging issues. For example, how should the law treat instant messaging (IM) or other forms of real-time communications? When must organizations or individuals preserve dynamic data such as databases or work in progress? Practical realities and established legal principles from the age of typewriters and telephones teach us that businesses should need to preserve real-time communications and dynamic data only when they record them for business purposes."

Click here to read the entire article.

An article by Martha Dawson in Law Technology News’ August 2006 EDD Showcase:

"On December 1, 2006, assuming no last-minute action from Congress, new Federal Rules of Civil Procedure governing electronically stored information go into effect. The new rules will apply to all cases filed after December 1, and to all pending cases to the extent "just and practicable."

You’ve heard the news before, probably attended CLE programs discussing them, and may even have the text of the rules on your desk to read sometime soon. But do you understand what these rule changes really mean, as a practical matter, to you and your clients? Are you prepared?"

Click here to read the entire article.

A story today by Larry Abramson on NPR’s Day to Day:

"A number of recent high-profile lawsuits suggest that companies must preserve important email documents on their computer systems, or risk major court sanctions. Increasingly, companies are turning to outside vendors to ensure they don’t accidentally destroy electronic documents that could come up in a lawsuit. "

Listen to the entire story here.

As of August 4, 2006, our searchable case database contains 543 cases, 122 of which are cases decided in 2006. The database is an excellent source of information on developing e-discovery case law around the country. And, it allows you to search for cases in a particular jurisdiction. Our case citations follow The Bluebook uniform system of citation, and employ the geographical term abbreviations set out in T.11. Simply type in the jurisdiction’s abbreviation as a keyword search, e.g., "S.D.N.Y." or “D.N.J.” or "N.D. Cal." or "Tex." If you want both state and federal cases, just use the state abbreviation. To narrow down the results, or if you’re looking for a particular issue, e.g., "spoliation," you can check that box, and/or any other relevant attributes you’d like to search for, and run it together with the keyword jurisdiction search. For example, a simple “S.D.N.Y.” keyword search produces 72 cases; the same keyword search coupled with “spoliation” produces 19 results.

Click here to visit the database.  Happy searching!

From George Socha and Thomas Gelbmann’s August 2 story in Law Technology News: "Results are in for the fourth annual Socha-Gelbmann Electronic Discovery Survey, and here are highlights of the report. In general, spending continues to grow, although with changing processes and tightening prices some providers are beginning to feel the pinch.

Consolidation continues as well, with larger electronic-data-discovery providers buying smaller ones, and companies from outside the market looking for opportunities to enter what they see as a lucrative area."

Read the highlights here or visit http://www.sochaconsulting.com/2006survey.htm for more detail.

In a July 24, 2006 National Law Journal article, Andrew Rhys Davies writes, "Reviewing electronic documents for privilege can be horribly time-consuming and expensive; and experience teaches that privileged material often slips through the net, as reviewers miss privileged communications buried in long e-mail chains or in invisible metadata. Against that background, this article examines how pending and proposed amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence seek to address these problems. "

Click here to read the entire article.  Also seen on www.discoveryresources.org.