Archive: June 2012

1
Western District of Washington Publishes Proposed Amendments to Local Civil Rules, Seeks Comment
2
Early Case Assessment: A Litigation Arrow in an Arbitration Quiver
3
Da Silva Moore: Plaintiffs’ Motion for Recusal or Disqualification Denied
4
Seventh Circuit Electronic Discovery Pilot Program Issues Final Report on Phase Two
5
Pennsylvania Amends Rules to Incorporate Discovery of Electronically Stored Information
6
Failure to Discover Unintentional Production Despite Indications that “Something had Gone Profoundly Awry” Results in Waiver of Privilege
7
Da Silva Moore: Defendant Opposes Plaintiffs’ Objections to May 7 Discovery Rulings
8
“Essentially Non-existent Document Retention Policy” Renders Defendants an “Unreliable Source of Discovery;” Court Grants Sanctions for False Statements, Discovery Violations

Western District of Washington Publishes Proposed Amendments to Local Civil Rules, Seeks Comment

The Western District of Washington has published on its website proposed amendments to the Local Civil Rules, including the addition of language that specifically addresses the discovery of electronically stored information.  The court has also published a proposed Model Protocol for Discovery of Electronically Stored Information in Civil Litigation, which was “developed in partnership with the Federal Bar Association” and which parties could choose to adopt or modify for use in their case.

To access the proposed amendments and/or Model Protocol, click here.  Comments are encouraged and may be sent vial email to localrules@wawd.uscourts.govComments must be received no later than 5 PM on September 28, 2012.  Approved changes to the local rules will go into effect on December 1, 2012.

Early Case Assessment: A Litigation Arrow in an Arbitration Quiver

 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.

Seventh Circuit Electronic Discovery Pilot Program Issues Final Report on Phase Two

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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Pennsylvania Amends Rules to Incorporate Discovery of Electronically Stored Information

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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Failure to Discover Unintentional Production Despite Indications that “Something had Gone Profoundly Awry” Results in Waiver of Privilege

D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012)

Here, the court held that privilege was waived as to unintentionally produced, privileged documents where, despite the reasonableness of Defendants’ initial efforts to preclude production, subsequent warnings that something was “profoundly awry with their document production and privilege review” failed to result in Defendants’ discovery that privileged information had been produced.

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“Essentially Non-existent Document Retention Policy” Renders Defendants an “Unreliable Source of Discovery;” Court Grants Sanctions for False Statements, Discovery Violations

Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL 1852048 (D. Neb. May 18, 2012)

In this case, the court addressed several motions, including plaintiff’s motion for sanctions.  Upon analysis of the facts presented, the court determined that defendants made repeated misrepresentations to the court; failed to conduct an adequate search for responsive documents; and wrongfully discarded a relevant server, among other things.  Accordingly, the court ordered monetary sanctions, including payment of the costs of a forensic examination, and recommended an adverse inference instruction at trial.

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