Catagory:Market Announcements

On January 12, 2012, the D.C. Court of Appeals Committee on the Unauthorized Practice of Law (“UPL Committee”) approved Opinion 21-12 addressing the applicability of D.C. Court of Appeals Rule 49 to “‘discovery services companies’—companies that state they offer comprehensive discovery services, including assistance with large scale document review, to legal services organizations.”  Rule 49 prohibits the unauthorized practice of law.  The Opinion specifically recognizes that in recent years such companies have “dramatically expanded the scope of their services” and have “begun to describe their services in increasingly broad language.”  Accordingly, the UPL Committee, through Opinion 21-12, sought to clarify the proper scope of services that such companies may offer and how those services may be represented to potential clients.

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Effective yesterday, the District of Delaware has adopted revised default standards for discovery, including electronic discovery.  The standards cover a broad range of e-discovery issues from cooperation and proportionality to preservation, privilege, and format of production, among others.  Clearly intended to provide more than just general guidance to parties before the court, the default standards are quite specific (e.g, identification of categories of ESI not presumptively subject to preservation and mandated formats for production) and parties are therefore advised to carefully consult the guidelines when practicing in the District of Delaware.

A copy of the guidelines is available for download here.

The Southern District of New York has implemented a new Pilot Program for Complex Cases which became effective on November 1, 2011.  The program was implemented in “response to the federal bar’s concerns about the high costs of litigating complex civil cases,” and is “designed to improve judicial case management of these disputes and reduce costs and delay.”  More specifically, “the rules are intended to shorten the timeline for certain actions, reduce motion practice, and flag issues requiring judicial intervention at an earlier stage in the litigation process.”  Fourteen types of civil lawsuits are designated as “complex cases,” including “stockholder’s suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions.”  District Court judges may also “remove a case from the pilot, or they can designate a case as complex” if it does not fall within the other, enumerated categories.

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The Administrative Office of Pennsylvania Courts issued a press release Tuesday announcing that the Supreme Court of Pennsylvania has established a Twitter feed to "increase online access to its rulings:" 

The specially designated site will provide instant notification of the online posting of most Supreme Court information, such as orders, new rules, opinions and concurring and dissenting statements written by the justices.  Anyone can sign-up to receive alerts from the Court’s Twitter page, which can be accessed at http://twitter.com/SupremeCtofPA.  “Follow Us On Twitter” links also will appear on the state court system’s Web site to take interested parties directly to the page.

To read the full press release, click here.

Please Note:  Since the date of the original post, the Model Order has been removed from the Federal Circuit’s website.  The following statement now appears on the web page of the Advisory Council for the United States Court of Appeals for the Federal Circuit:

The Advisory Council published model orders concerning e-discovery and limitations on claims and prior art, and posted a disclaimer that the Court did not approve the model orders.  To avoid the risk of any misperception that the Court has endorsed or taken any position on the model orders through the Advisory Council, or otherwise, the Advisory Council confirms that it does not sponsor or endorse orders.

The above statement also provides a link to further explanation, which states in full:

Model orders concerning e-discovery and limitations on claims and prior art were posted on the court’s website.  Those orders have now been removed since the court has not sponsored or endorsed the orders.  In light of the court’s determination, the advisory council should not be viewed as having sponsored or endorsed these orders on behalf of the court.

A link to the Advisory Council’s web page containing the above statements is available, here.

During his speech at the E.D. Texas Judicial Conference on Tuesday, Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit introduced the new Model Order Regarding E-Discovery in Patent Cases.  Per Chief Judge Rader, the goal of the model order is to “streamline e-discovery, particularly email production, and require litigants to focus on the proper purpose of discovery—the gathering of material information—rather than on unlimited fishing expeditions.”

The model order, which contains 14 specific provisions, addresses a myriad of topics including cost shifting, metadata, and the treatment of privileged information (e.g., inadvertent production does not result in waiver).  As indicated, however, the majority of the provisions address the discovery of email.  For example, the model order provides that “[g]eneral ESI production requests under Federal Rules of Civil Procedure 34 and 45 shall not include email or other forms of electronic correspondence (collectively ‘email’)” and that “[t]o obtain email, parties must propound specific email production requests.”  Moreover, those requests “shall only be propounded for specific issues, rather than general discovery of a product or business.”  The model order further provides that email production “shall be phased to occur after the parties have exchanged initial disclosures and basic documentation about the patents, the prior art, the accused instrumentalities, and the relevant finances.”  Also within the model order is a limitation on the number of custodians per producing party from which email may be requested (5) and on the number of search terms “per custodian per party” (5), although the parties may jointly agree to modify those limits.

A copy of Chief Judge Rader’s comments at the Judicial Conference is available here.

A full copy of the [Model] Order Regarding E-Discovery in Patent Cases is available here.

On June 20, 2011, the judges of the Superior Court adopted revisions to the Connecticut Practice Book, including many amendments addressing electronic discovery.  Most amendments (including those addressing electronic discovery) will become effective on January 1, 2012.  Although Connecticut’s rules previously addressed the issue of electronic discovery, the newest amendments provide substantially more instruction.  Among the more notable amendments are the addition of Rule 13-5(9) allowing a court to issue a protective order which would allow for cost allocation and other remedies to avoid undue burden, etc. related to the discovery of electronically stored information; revisions to Rule 13-9(d) addressing the format of production; the addition of Rule 13-14(d) which closely, but not exactly, follows Federal Rule 37(f), and provides safe harbor for the loss of information resulting from routine, good faith operations of systems or processes “in the absence of a showing of intentional actions designed to avoid known preservation obligations”; and the addition of Rule 13-33 (Claim of Privilege or Protection After Production) which “provides a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery, and, if the claim is contested, permits any party that received that information to present the matter to the court for resolution.”

All of the amendments to Connecticut’s Practice Book are available here.

On May 24, 2011, the San Diego County Bar Association issued SDCBA Legal Ethics Opinion 2011-2, addressing the question of whether counsel may send a “friend request” to opposing parties.  Following extensive analysis of the issue, the opinion concludes as follows:

Social Media sites have opened a broad highway on which users may post thier most private personal information.  But Facebook, at least, enables its users to place limits on who may see that information.  The rules of ethics impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel.

We have concluded that those rules bar an attorney from making an ex parte friend request of a represented party.  An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party.  We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.  Represented parties shouldn’t have “friends” like that and no one – represented or not, party or non-party – should be misled into accepting such friendship.  In our view, this strikes the right balance between allowing unfettered access to what is public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously circumventing the privacy even of those who are unrepresented.

A full copy of the opinion is available here.

The second phase of the Seventh Circuit’s Electronic Discovery Pilot Program, previously scheduled to end this month, has been extended to May 2012, according to the Interim Report on Phase Two.  According to the interim report, the decision to extend the program was made “early in Phase Two” to “allow a fuller evaluation of the Principles’s application.”  Moreover, the original principles of the program were revised “in response to the Phase One survey results” and Phase Two Principles were promulgated on August 1, 2010, to be applied for the duration of Phase Two.  Specifically, the revisions affected principles 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution) and 2.06 (Production Format) and are available for review in the interim report on the program’s new website, www.discoverypilot.com.

A copy of the Interim Report on Phase Two is also available here.