Archive: October 2007

1
Creating a Strong Foundation for Your Company’s Records Management Practices
2
Judicial Conference Submits Proposed New Evidence Rule 502 to Congress for Enactment
3
U.S. District Court for the District of Vermont Amends Local Rules to Address E-Discovery
4
Finding Burden of Retention and Production Outweighs Benefit, Court Allows Recycling of Back Up Tapes
5
Litigation Hold Notices Protected by Attorney-Client Privilege and Work Product Doctrine
6
K&L Gates Lawyer Quoted in Paralegal Management Magazine

Creating a Strong Foundation for Your Company’s Records Management Practices

K&L Gates partner Thomas J. Smith and William B. Dodero, Senior Counsel at Bayer HealthCare LLC in Wayne, New Jersey, have co-authored an article appearing in the November 2007 issue of the ACC Docket, entitled:  “Creating a Strong Foundation for Your Company’s Records Management Practices.”  The article provides valuable guidance on the proactive steps companies can take to develop policies and implement practices to improve their records management practices.  View the complete article here.

Reprinted with permission of the authors and the Association of Corporate Counsel as it originally appeared:  Thomas J. Smith and William B. Dodero, "Creating a Strong Foundation for Your Company’s Records Management Practices," ACC Docket volume 25, issue 9, (Nov. 2007):  52-64.  Copyright © 2007, the Association of Corporate Counsel.  All rights reserved.  If you are interested in joining ACC, please go to www.acc.com, call 202.293.4103 x360, or email membership@acc.com.

Judicial Conference Submits Proposed New Evidence Rule 502 to Congress for Enactment

On September 27, 2007, the Judicial Conference of the United States submitted proposed new Evidence Rule 502 to Congress through identical letters to the Committee on the Judiciary of the United States Senate and the Committee on the Judiciary of the United States House of Representatives.  The letters provide a description of the process that led to the proposed rule, an explanation of the problems sought to be addressed, the protections against waiver of privilege or work product afforded by the proposed rule, and drafting choices made by the Advisory Committee on Evidence Rules in crafting the language of the proposed rule.  The Judicial Conference recommended that proposed new Evidence Rule 502 be adopted by Congress “as a rule that will effectively limit the skyrocketing costs of discovery.”

Proposed new Evidence Rule 502 contains four main provisions.  The first codifies the majority view and protects a party from waiving a privilege if privileged or protected information is disclosed inadvertently in a federal court proceeding or to a federal public office or agency, unless the disclosing party was negligent in producing the information or failed to take reasonable steps seeking its return.  The second protects a party from waiving a privilege covering all documents dealing with the same subject matter as a document that was disclosed, unless fairness requires such an extreme result.  The third protects a party from waiving a privilege or protection if the court enters an order providing that disclosure of privileged or protected information does not constitute a waiver.  The order is enforceable against all persons in any federal or state proceeding.  The fourth provides that parties in a federal proceeding can enter into a confidentiality agreement providing for mutual protection against waiver in that proceeding, binding only the parties.

Earlier, on September 18, 2007, the Judicial Conference approved proposed Evidence Rule 502 and agreed to transmit it to Congress with a recommendation that it be enacted according to law.  At that time, the Judicial Conference considered the September 2007 Report of the Standing Committee, which explained the rationale behind the proposed rule as follows (beginning at p. 32):
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U.S. District Court for the District of Vermont Amends Local Rules to Address E-Discovery

Effective September 1, 2007, the United States District Court for the District of Vermont amended its Local Rules to address the discovery of electronically stored information (“ESI”).  Section (b) of Local Rule 26.1 now requires, where appropriate, the inclusion of deadlines for the disclosure of ESI, and affords an additional 15 days time in which the Discovery Schedule may be filed – Discovery Schedules are due within 45 days (instead of 30) after the filing of the Answer.

In addition, the Court’s Local Form, “Stipulated Discovery Schedule/Order,” has been amended to include language instructing parties to include deadlines for the disclosure of ESI, along with “any other agreements the parties reach, for example, agreements concerning the assertion of privilege or work product after production.”

The Clerk of Court’s Notice of Changes to Local Rules of Procedure is available here, and highlights the recent amendments.

Click on the following links to see amended LR 26.1 and the new local form:

Local Rule 26.1 Discovery

Local Form Rule 26.1(b): Stipulated Discovery Schedule/Order

For a complete listing of local federal rules and guidelines addressing electronic discovery, see our updated post on the subject here.

Finding Burden of Retention and Production Outweighs Benefit, Court Allows Recycling of Back Up Tapes

Gulfstream Worldwide Realty, Inc. v. Phillips Elecs. N. Am. Corp., 2007 WL 5685128 (D.N.M. Oct. 19, 2007)

In this case, arising out of a claim for a commission on the sale of a semiconductors plant, Phillips Electronics North America (“PENAC”) moved the court for a protective order to allow NXP Semiconductors USA, Inc., a non party, to erase and reuse backup tapes that potentially contained information relevant to the lawsuit.  NXP’s backup tapes are implicated by its relationship with Royal Phillips, PENAC’s parent company and the holder of a 19.9% interest in NXP, a company formed following Royal Phillips’s sale of its semiconductor business.  Many of the former employee’s of Royal Phillip’s semiconductor business went to work for NXP.

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Litigation Hold Notices Protected by Attorney-Client Privilege and Work Product Doctrine

In re eBay Seller Antitrust Litig., 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007)

Plaintiffs moved for an interim preservation order because, in their view, defendant eBay had failed to disclose sufficient information regarding the efforts it was making to ensure that relevant ESI was preserved and collected.  Although the parties agreed that eBay would provide a witness to testify under Rule 30(b)(6) of the Federal Rules of Civil Procedure regarding its ESI preservation and collection efforts, they disagreed about whether eBay must produce the “document retention notices” (“DRNs”) it sent out to approximately 600 of its employees, and whether eBay must disclose the names and job titles of those approximately 600 employees.

The court ruled that eBay need not produce copies of the DRNs, nor any information about matters contained therein that were privileged or constituted work product.  However, the court ruled that plaintiffs were entitled to inquire into the facts as to what the employees receiving the DRNs had done in response.  The court elaborated:
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K&L Gates Lawyer Quoted in Paralegal Management Magazine

In an article titled "The New Electronic Discovery Rules" in the July/August 2007 issue, K&L Gates lawyer Tom Smith spoke up on the need for proactive preservation and disclosure of electronically stored information.

"Lawyers cannot ‘punt’ the due diligence of searching for and identifying sources of relevant electronically stored information to their clients; nor can in-house counsel delegate the issue ot the IT staff.  The new rules and related developing case law place the burden squarely on counsel to understand the client’s electronic information systems and to be prepared to explain to opposing counsel and the court where potentially relevant electronically stored information resides, how it is being preserved, and how it will be searched, reviewed and produced."

While the full text of the article is not online, back-issues can be ordered through the International Paralegal Management Association.

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