Catagory:Market Announcements

The U.S. International Trade Commission has adopted “final rules related to its e-discovery practices.”  “The new rules will be effective 30 days after publication in the Federal Register and are applicable to investigations instituted 30 days after publication in the Federal Register”—a Federal Register notice was issued on May 15, 2013.

The newly adopted rules address issues including the discovery of inaccessible information and limitations to discovery similar to those found in Fed. R. Civ. P. 26(b)(2)(C).  The newly adopted rules also add new provisions addressing privileged information and work product, including requiring the production of privilege logs and providing procedures for addressing the inadvertent production of privileged materials.

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

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On December 1, 2012, newly amended rules went into effect in the Western District of Washington, including rules addressing electronic discovery.  Notably, the new rules now require that parties contemplating discovery of electronically stored information consider adopting the newly promulgated Model Agreement Regarding Discovery of Electronically Stored Information in Civil Litigation—a fairly comprehensive order addressing many aspects of electronic discovery.  Many other amendments were also adopted.

For a full copy of the newly adopted rules, click here.

For a copy of the new Model Agreement, click here.

Effective January 1, 2013, the Delaware Court of Chancery has amended its rules “to account for modern discovery demands” and has “expanded its Guidelines for Practitioners,” originally released in January 2012.  The Court’s press release summarizes the changes:

The Court of Chancery will amend its Rules regarding discovery, effective January 1, 2013.  Rules 26, 30, 34 and 45 will be updated to account for modern discovery demands and will bring the Court’s rules in line with current practice.  The amendments refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things,” and explain how parties should respond to requests for ESI.  These changes are consistent with similar amendments to the Federal Rules of Civil Procedure.  Rule 26(c) also was revised to make clear that an out-of-state non-party from whom discovery is sought may move for a protective order in this state.

In addition to amendments to the Rules, the Court also has expanded its Guidelines for Practitioners, originally released in January 2012, to include guidelines regarding discovery.  These guidelines explain the Court’s expectations regarding parties’ responsibility to confer early and often regarding discovery, including about electronic discovery procedures, the overall scope of discovery, preferred procedures for collection and review of discoverable material, including ESI, the privilege assertion process, and the role of Delaware counsel in the discovery process.  The Court also developed guidelines for expedited discovery in advance of a preliminary injunction hearing.  These new guidelines encourage communication among counsel and are intended to assist the Bar in developing reliable and transparent procedures for electronic discovery.  The Court and its Rules Committee are hopeful that use of these guidelines will help avoid unnecessary and expensive disputes regarding the discovery process.

To read the full press release, or to access the new rules and guidelines, click here.

On November 28, 2012, the Supreme Court of Illinois entered an order adopting new Rule of Evidence 502 Attorney Client Privilege and Work Product; Limitations on Waiver and a second order amending Rule 201 General Discovery Provisions.  The newly adopted rules address the inadvertent disclosure of privileged information and closely follow the Federal Rules addressing the same (FRE 502 & FRCP 26(b)(5)(B)).  The rules will be effective January 1, 2013.

A copy of the order adopting new Rule 502 is available here.

A copy of the order adopting the amendment to Rule 201 (and others) is available here.

On December 4, 2012, the New Jersey Supreme Court adopted amendments to the New Jersey Rules Governing Criminal Practice and to the Rules Governing Practice in the Municipal Courts.  The amendments were initially recommended by the Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters.  The amendments are effective on January 1, 2013.

Among other things, the amendments to the Rules of Criminal Practice address a newly imposed obligation to meet and confer on the issue of electronic discovery (Rule 3:9-1(b)); the discoverability of electronically stored information generally (e.g., by specifically identifying such information as discoverable under the rules), including the format of production (Rule 3:13-3); and discovery fees (Rule 3:13-5).  Similarly, the amendments to the Rules of Practice in the Municipal Courts address (among other things) the discoverability of electronically stored information generally, including the format of production and discovery fees (Rule 7:7-7).

For a copy of the Notice to the Bar, including the Court’s Order, click here.

This week, the U.S. District Court for the Northern District of California announced "new Guidelines for counsel and litigants regarding the discovery of electronically stored information ("ESI")."

According to the Court’s announcement:

The Guidelines are designed to establish best practices for evidence preservation in the digital age and to ensure that local practices regarding the discovery of ESI keep pace with rapidly evolving technology and to be flexible enough to be used in a wide variety of cases.  According to Judge Laporte:  “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure.”

The package of new ESI-related documents comprises:

• Guidelines for the Discovery of Electronically Stored Information;
• ESI checklist for use during the Rule 26(f) meet and confer process;
• Model Stipulated Order Re: the Discovery of Electronically Stored Information.
 

To read the full text of the announcement, click here.
To access the new guidelines and related documents, click here.