Archive: December 2012

1
New Illinois Rules Address Inadvertent Disclosure
2
The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)
3
Court Addresses What Constitutes “Bad Faith,” Imposes Adverse Inference & Monetary Sanctions
4
New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts

New Illinois Rules Address Inadvertent Disclosure

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.

The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)

This month, the Sedona Conference® published a public comment version of its latest paper, The Sedona Conference® Primer on Social Media.  The primer, a somewhat different publication than prior commentaries, is described in its Preface as follows:

Unlike many of previous publications in this series, this is not entitled a “Commentary,” nor does it present any formal “Principles,” although it contains plenty of practical guidance for attorneys, judges, and parties.  This is called a “Primer” because the goal is to provide primary instruction to the bar and bench in the basics of social media and the law, from definitions, to the use of social media in business, to the discovery of social media in litigation, to professional responsibilities lawyers have in relation to their own use of social media.  This is a fast-developing and fast-changing area of technical, social, and legal development, and any consensus-based Commentary or set of Principles that claims to advance the law in this area may be doomed to obsolescence as soon as it is announced on Twitter.  However, we hope that this Primer represents a positive first step in grounding the dialogue leading to consensus on moving the law forward in the reasoned and just way.

This publication is available for download from The Sedona Conference®, here.

Court Addresses What Constitutes “Bad Faith,” Imposes Adverse Inference & Monetary Sanctions

Bozic v. City of Washington, No. 2:11-cv-674, 2012 WL 6050610 (W.D. Pa. Dec. 5, 2012)

Addressing Plaintiff’s accusation of spoliation based on the destruction of the contents of an audio tape, the court considered “the requisite mental state or level of scienter” necessary to establish bad faith, as is required in the Third Circuit, and found that the circumstances surrounding the destruction established sufficient culpability, that it was “highly likely” that Plaintiff was materially prejudiced, and that “no lesser sanction than at least a spoliation adverse inference would avoid substantial unfairness” and ordered an adverse inference and monetary sanctions.

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New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts

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.

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