Based on public comment, the Duke Conference and Discovery Subcommittees to the Advisory Committee on Civil Rules have recommended changes to the proposed amendments to the Federal Rules of Civil Procedure as previously published. Read More
Professor William H.J. Hubbard from the University of Chicago Law School recently concluded his Preservation Costs Survey and the results are now available. The survey “is the first, and to date only, systematic effort to measure the extent and costs of preservation activity across a broad sample of companies,” and collected data from 128 companies, “including companies of all sizes and from a broad range of industries.” The results are both fascinating and timely, in light of proposed amendments to the Federal Rules which may affect preservation obligations in future litigation.
Notable findings include that “[o]ver 79 percent of respondents reported a ‘great extent’ or ‘moderate extent’ of preservation burdens”; that “[a]mong the largest companies in the sample, the estimated costs exceed $40 million per company per year”; and that “[o]n average across all survey respondents, slightly less than half of all preserved data is ever collected, processed, and reviewed” and “[e]ven less is produced or eventually used in litigation.” Also notable was the conclusion that “[r]ule changes with even modest effects would generate meaningful cost savings” and that “[f]or the largest companies in the sample, a 3 percent reduction only in employee time spent on litigation holds would equate to savings of over $1 million per company per year.”
The Summary of Findings and Final Report were submitted to the Advisory Committee on Civil Rules by Professor Hubbard during the public comment period for the currently proposed amendments to the Federal Rules of Civil Procedure (which has now closed).
A copy of the cover letter accompanying Professor Hubbard’s submission to the Committee is available here. The Summary of Findings is available here. A copy of the Final Report is available here.
The ABA Electronic Discovery (ESI) in Bankruptcy Working Group has published the final draft of its “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases” which “provides the framework for consideration of ESI issues in bankruptcy cases.” According to Richard Wasserman, Chairman of the ABA Electronic Discovery in Bankruptcy Working Group, the Report “sets forth principles and guidelines on the scope and timing of a party’s obligation to preserve ESI in bankruptcy cases” and “addresses both debtor and creditor obligations to preserve ESI not only in connection with adversary proceedings and contested matters, but also in connection with the bankruptcy case itself.” (Richard L. Wasserman, Best Practices on ESI Issues In Bankruptcy Cases, Law360 (Sept. 3, 2013, 1:17 PM ET) http://www.law360.com/articles/468985/best-practices-on-esi-issues-in-bankruptcy-cases).
The report is divided into six sections:
The sections are ESI Principles and Guidelines in Large Chapter 11 Cases; ESI Principles and Guidelines in Middle Market and Smaller Chapter 11 Cases; ESI Principles and Guidelines in Chapter 7 and Chapter 13 Cases; ESI Principles and Guidelines in Connection with Filing Proofs of Claim and Objections to Claims in Bankruptcy Cases; ESI Principles and Guidelines for Creditors in Bankruptcy Cases; and Rules and Procedures with Respect to ESI in Adversary Proceedings and Contested Matters in Bankruptcy Cases.
The final report was printed in the August 2013 edition of The Business Lawyer and is available to ABA members and customers, here.
A version of the final report, described as “in substantially the form” that was published in August in The Business Lawyer was posted on the Law360 website on September 3, 2013. That version of the Report is available, here.
As was previously reported on this blog, proposed amendments to Federal Rules of Civil Procedure 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms were published for public comment on August 15, 2013. Since that time, nearly 700 written comments have been submitted for consideration by the Advisory Committee on Civil Rules and more than 120 people have provided live testimony at one of three public hearings—a clear reflection of the importance of these proposed amendments and their potential effects on the future of civil litigation.
For those still interested in commenting, it is not too late! The public comment period closes on February 15, 2014.
For more information regarding the proposed amendments, or to learn more about submitting a comment, click here.
Managing Intellectual Property – IP Stars has recognized K&L Gates attorneys Martha Dawson, Susan Hollander, Susan Jackson, Pallavi Wahi, Christine Vito, and Rachal Winger in its inaugural edition of “Top 250 Women in IP 2013.”
The nominees were chosen based upon the rankings of the 2013 edition of IP Stars, researched between June 2012 and April 2013. That research included thousands of interviews and surveys by intellectual property partners and law firms across the United States.
Click here to see a full copy of the list.
On October 7, 2013, the Supreme Court of the United States denied Plaintiffs’ Petition for Writ of Certiorari arising from Magistrate Judge Andrew Peck’s refusal to recuse himself in this case. As was previously reported on this blog, Plaintiffs sought an answer to the question: “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?” Readers may recall that the plaintiffs in this case sought the recusal of Magistrate Judge Peck following his approval of Defendant’s predictive coding protocol. That motion was denied by Magistrate Judge Peck. Plaintiffs then took the issue before the District Court, which likewise declined to compel recusal, and then to the Second Circuit, which denied Plaintiffs’ petition for a writ of mandamus. Plaintiffs then petitioned the United States Supreme Court for a Writ of Certiorari, which, as discussed, was denied.
The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist. “It is within the judicial officer’s discretion whether these materials may be used.”
The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others. The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.
The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is now published online for public comment. The proposed amendments to the civil rules would affect rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and the Appendix of Forms. Many of the proposed amendments are quite significant, particularly with regard to discovery, and our readers are therefore encouraged to review them carefully and share their thoughts with the Advisory Committee.
All written comments are due by February 15, 2014, and may be submitted electronically or by mail. Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX.
To learn more about all of the proposed amendments and for instructions regarding how to submit your comments, click here. For those interested only in the proposed amendments to the Rules of Civil Procedure, click here, to be taken directly to a discussion of those proposals.
Eleven people —lawyers and nonlawyers — who helped create the industry.
Published by: The American Lawyer, July 29, 2013
Clearly it took a village to define and create today’s electronic discovery industry. Ever since the sector’s early days, marked by the litigation following the Exxon Valdez oil spill in 1989, a series of lawyers, consultants, archivists, and judges have each played key roles in outlining processes, setting standards, defining the scope of e-discovery, and anticipating future trends. Some, like K&L Gates partner Martha Dawson and U.S. District Court judge Shira Scheindlin, were early and vocal advocates of a robust role for e-discovery. Others, like Jason R. Baron of the U.S. National Archives and Records Administration, U.S. Magistrate Judge Andrew Peck, and U.S. District Court Judge Paul Grimm, focus on narrowing the scope and improving the efficiency and cost-effectiveness of e-discovery requests. Another group dived deep into the long process of creating uniform standards and procedures for e-discovery: This is a diverse group, including such people as consultants George Socha and Tom Gelbmann, Sedona Conference founder Richard Braman, and U.S. District Court Judge Lee Rosenthal, who chaired the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedures during a crucial period beginning in 2003.
PRESENT AT THE CREATION
By Alan Cohen
They come from different backgrounds. Some are lawyers, some are technology experts, and some are a little of both. These are our picks for six of the most important e-discovery trailblazers.
A FRONT-ROW SEAT
By Lisa Holton
Federal judges were among the first to see the sweeping changes that electronic discovery has brought to many areas of the law. These five judges have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.
Click here for links to the full articles.
It was reported this week that the Plaintiffs in this case have filed a Petition for a Writ of Certiorari with the United States Supreme Court seeking an answer to the question: “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?” For those who don’t recall, the plaintiffs in this case sought Magistrate Judge Peck’s recusal following his approval of Defendant’s predictive coding protocol. That motion was denied, and the denial was later affirmed by both the District Court and the Second Circuit Court of Appeals. Now, Plaintiffs argue that the standard of review applied by the Second Circuit was too deferential and that the issue should have been reviewed “de novo.”
For more information on this interesting development, click here to read Victor Li’s article “ ‘Da Silva Moore’ Goes to Washington,” published yesterday by Law Technology News.
Although too numerous to be listed, more postings regarding this case can be accessed on this blog by searching “Da Silva Moore” in the search box (on the left of your screen).
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