Archive: February 2014

1
Preservation Costs Survey: The Results are In!
2
In Case You Missed It: ABA Working Group Publishes “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases”
3
Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith
4
Speak Now or Forever Hold Your Peace: Comment Period on Proposed Amendments to Federal Rules Closes February 15, 2014

Preservation Costs Survey: The Results are In!

Professor William H.J. Hubbard from the University of Chicago Law School recently concluded his Preservation Costs Survey and the results are now available.  The survey “is the first, and to date only, systematic effort to measure the extent and costs of preservation activity across a broad sample of companies,” and collected data from 128 companies, “including companies of all sizes and from a broad range of industries.”  The results are both fascinating and timely, in light of proposed amendments to the Federal Rules which may affect preservation obligations in future litigation.

Notable findings include that “[o]ver 79 percent of respondents reported a ‘great extent’ or ‘moderate extent’ of preservation burdens”; that “[a]mong the largest companies in the sample, the estimated costs exceed $40 million per company per year”; and that “[o]n average across all survey respondents, slightly less than half of all preserved data is ever collected, processed, and reviewed” and “[e]ven less is produced or eventually used in litigation.”  Also notable was the conclusion that “[r]ule changes with even modest effects would generate meaningful cost savings” and that “[f]or the largest companies in the sample, a 3 percent reduction only in employee time spent on litigation holds would equate to savings of over $1 million per company per year.”

The Summary of Findings and Final Report were submitted to the Advisory Committee on Civil Rules by Professor Hubbard during the public comment period for the currently proposed amendments to the Federal Rules of Civil Procedure (which has now closed). 

A copy of the cover letter accompanying Professor Hubbard’s submission to the Committee is available here.  The Summary of Findings is available here.  A copy of the Final Report is available here.

In Case You Missed It: ABA Working Group Publishes “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases”

The ABA Electronic Discovery (ESI) in Bankruptcy Working Group has published the final draft of its “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases” which “provides the framework for consideration of ESI issues in bankruptcy cases.”  According to Richard Wasserman, Chairman of the ABA Electronic Discovery in Bankruptcy Working Group, the Report “sets forth principles and guidelines on the scope and timing of a party’s obligation to preserve ESI in bankruptcy cases” and “addresses both debtor and creditor obligations to preserve ESI not only in connection with adversary proceedings and contested matters, but also in connection with the bankruptcy case itself.”  (Richard L. Wasserman, Best Practices on ESI Issues In Bankruptcy Cases, Law360 (Sept. 3, 2013, 1:17 PM ET) http://www.law360.com/articles/468985/best-practices-on-esi-issues-in-bankruptcy-cases).

The report is divided into six sections:

The sections are ESI Principles and Guidelines in Large Chapter 11 Cases; ESI Principles and Guidelines in Middle Market and Smaller Chapter 11 Cases; ESI Principles and Guidelines in Chapter 7 and Chapter 13 Cases; ESI Principles and Guidelines in Connection with Filing Proofs of Claim and Objections to Claims in Bankruptcy Cases; ESI Principles and Guidelines for Creditors in Bankruptcy Cases; and Rules and Procedures with Respect to ESI in Adversary Proceedings and Contested Matters in Bankruptcy Cases.

The final report was printed in the August 2013 edition of The Business Lawyer and is available to ABA members and customers, here.

A version of the final report, described as “in substantially the form” that was published in August in The Business Lawyer was posted on the Law360 website on September 3, 2013.  That version of the Report is available, here.

Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith

Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014)

Plaintiff argued that spoliation sanctions were warranted for Defendants’ destruction of relevant audio recordings of closed-session school board meetings in violation of the Illinois Open Meetings Act (“OMA”), the school board’s own document retention policies, and Illinois common law, but could not establish the timing of the at-issue destruction.  The court reasoned that the OMA did not impose a specific duty to preserve for purposes of litigation (“and certainly not for this specific litigation”) and declined to impose sanctions where bad faith could not be established absent evidence of when the tapes were destroyed. Read More

Speak Now or Forever Hold Your Peace: Comment Period on Proposed Amendments to Federal Rules Closes February 15, 2014

As was previously reported on this blog, proposed amendments to Federal Rules of Civil Procedure 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms were published for public comment on August 15, 2013.  Since that time, nearly 700 written comments have been submitted for consideration by the Advisory Committee on Civil Rules and more than 120 people have provided live testimony at one of three public hearings—a clear reflection of the importance of these proposed amendments and their potential effects on the future of civil litigation.

For those still interested in commenting, it is not too late!  The public comment period closes on February 15, 2014. 

For more information regarding the proposed amendments, or to learn more about submitting a comment, click here.

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