Catagory:Market Announcements

 In the latest edition of K&L Gates’ Arbitration World Julie Anne Halter, a Partner in K&L Gates’ e-Discovery Analysis and Technology Group (e-DAT), and William Zoellner, an e-DAT Staff Lawyer, discuss the value of Early Case Assessment in arbitration.

From the Editors

Welcome to the 19th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

Early Case Assessment: A Litigation Arrow in an Arbitration Quiver

There is no question that dispute resolution procedures that are designed to be more efficient and less costly than traditional litigation, such as arbitration, can still be prohibitively expensive in some cases.  To deal with this issue there are a number of highly effective processes and tools, many developed in the context of large scale litigation, that can provide significant strategic advantage and cost savings to clients in arbitration, mediation and other dispute resolution procedures.

To access the full newsletter, including the rest of the article Early Case Assessment: A Litigation Arrow in an Arbitration Quiver, click here.

Magistrate Judge Andrew Peck has denied Plaintiffs’ Motion for Recusal or Disqualification.  The 56-page opinion was filed on Friday, and is available here.

Phase Two of the Seventh Circuit’s Electronic Discovery Pilot Program ended in May and the Final Report on that phase has now been issued.  According to that report, much was accomplished during Phase Two, including the creation of several subcommittees such as the Criminal Discovery Subcommittee, dedicated to developing “resources to educate criminal practitioners about the use of electronic discovery,” and the Technology Subcommittee, which was “formed … to keep up with rapidly evolving technology and to further advance the bench’s and bar’s understanding and use of new technology in the electronic record retention and discovery field.”  A Web Site Subcommittee was also formed which was responsible for the creation of www.DiscoveryPilot.com, a valuable informational resource on the Pilot Program and related topics.  Phase Two also included a survey about the Pilot Program and its Principles, the results of which are shared in the Final Report.  Notably, according to the report’s Executive Summary, “[b]oth the Phase One and Phase Two surveys’ results show that in those cases in which the Principles had a perceived effect, those effects were overwhelmingly positive with respect to assisting attorneys’ cooperation and enhancing their ability to resolve disputes amicably, their ability to obtain relevant documents, and their ability to zealously represent their clients, as well as providing fairness to the process.”

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Last week, Pennsylvania became the most recent state to amend its civil rules to address the discovery of electronically stored information.  Unlike many other states, however, Pennsylvania’s Civil Procedural Rules Committee has made clear in its explanatory comment that despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.”  Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law . . . .”  The comment goes on to more fully discuss the “Proportionality Standard” and its application to electronic discovery, as well as “Tools for Addressing Electronically Stored Information,” including, for example, “sampling, cost sharing and non-waiver agreements.”

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On June 4, 2012, Defendant MSLGroup filed its opposition to Plaintiffs’ objections to Magistrate Judge Peck’s May 7, 2012 discovery rulings.  A full copy of the response is available here.
 

On May 21, Plaintiffs filed Rule 72(a) objections to Magistrate Judge Peck’s May 7, 2012 discovery rulings related to the relevance of certain documents that comprise the seed set of the parties’ ESI protocol.  Plaintiffs’ brief and supporting declaration are available below:

• Plaintiffs’ Rule 72(a) Objection to the Magistrate’s May 7, 2012 Discovery Ruling
• Declaration of Siham Nurhussein in Support of Plaintiffs’ Rule 72(a) Objection to the Magistrate’s May 7, 2012 Discovery Rulings

In April 2009, Chief Justice Rabner of the Supreme Court of New Jersey appointed the Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters (hereinafter the Committee).  The Committee “was appointed to recommend solutions to a variety of issues that had arisen as the result of the increasing use of electronically stored information in criminal cases.”  After significant investigation, the Committee has recently reported its recommendations, which include both proposed amendments to several rules as well as “non-rule recommendations.”

Issues identified for serious consideration by the Committee included many that are familiar to practitioners on the “civil side,” such as problems with incompatibility between the format of production and the equipment/software available to defense counsel, discovery related costs, and discovery-related delays as well as problems that are unique to criminal cases, including issues related to attorney-client visitation in county jails, for example.  With so many issues to consider, the resulting report and recommendations are significant and too sweeping to succinctly summarize.  For those who want to learn more, however, a copy of the full report is available here.

Additionally, for those who are interested, comments on the proposals are invited; the deadline for submission is June 4. 

It seems every day brings something new in this case.  Today we report that on Monday, May 14, Magistrate Judge Peck entered an order staying MSL’s production of ESI, “pending Judge Carter’s decision on plaintiffs’ motions for collective action certification and to amend their complaint.”  That order is available here.

Also of interest, on Tuesday, May 15, Magistrate Judge Peck denied a motion from Richard E. Flamm, Esq. to file an amicus brief in support of plaintiffs’ Motion for Recusal or Disqualification.  The motion, the underlying amicus brief, and the court’s order are available below:

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On May 10, 2012, Plaintiffs filed their reply in support of their motion for recusal or disqualification. Those pleadings are available below.

• Reply Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification

• Declaration of Steven L. Wittels in Support of Plaintiffs’ Reply in Support of Plaintiffs’’ Motion for Recusal or Disqualification