Category: News & Updates

1
U.S.-EU Safe Harbor Invalidated. What Next?
2
Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?
3
It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery
4
Supreme Court Approves Proposed Amendments to Federal Rules of Civil Procedure, Submits Proposals to Congress for Approval
5
What the judges think: e-discovery practices and trends
6
State Bar of California Interim Opinion on Attorneys’ Duties in the “Handling of Discovery of [ESI]” – Comment Period Extended
7
E-Discovery in 2015: Will You Feel The Earth Move Under Your Feet?
8
2014 ABA Journal Blawg 100: We Won! (And Thanks for Voting!)
9
The 2014 ABA Journal Blawg 100: Vote for Your Favorites Now!
10
Another Milestone Passes: Judicial Conference Approves Federal Civil Rules Amendments

U.S.-EU Safe Harbor Invalidated. What Next?

By: Martin Stern and Samuel Castic

On October 6, the U.S.-EU Safe Harbor was invalidated in a European Court of Justice decision in Schrems v. Data Protection Authority. Thousands of companies have certified as compliant with the Safe Harbor framework, and may need to reevaluate the legal basis for transfers of personal data from the EU to the U.S.

Learn more in our alert “Did the ECJ Kill the Safe Harbor Framework on E.U.-U.S. Data Transfers?”, and view a webinar on this topic here.

Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?

An Overview of the Rules, History and Commentary

Absent congressional action to reject, modify or defer proposed amendments approved by the U.S. Supreme Court earlier this year, amendments to rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 of the Federal Rules of Civil Procedure will become effective on December 1, 2015.  Getting a head start on thinking about how your litigation (and pre-litigation) strategies or practices may be affected by these important amendments is highly recommended.

Click here to access the full article.

 

It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery

Formal Opinion No. 2015-193 addresses the question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?”

The opinion summarizes the answer as follows:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

To read the full opinion, click here.

Supreme Court Approves Proposed Amendments to Federal Rules of Civil Procedure, Submits Proposals to Congress for Approval

Today, April 29, 2015, Chief Justice John G. Roberts submitted the proposed amendments to the Federal Rules of Civil Procedure which “have been adopted by the Supreme Court of the United States” to Congress for final approval.  Absent legislation to reject, modify or defer the rules, they will become effective December 1, 2015.

A copy of the Supreme Court’s submission to Congress is available here.

What the judges think: e-discovery practices and trends

by Daniel Miller and Tina Miller

This article was originally published in the Lawyers Journal, The Journal of the Allegheny County Bar Association, April 3, 2015.

A recent survey of leading federal jurists indicates that many attorneys need to improve their knowledge and practices regarding e-discovery.

The “Federal Judges Survey on e-discovery Best Practices and Trends,” commissioned by the e-discovery software firm Exterro, reflects responses from 22 federal district and magistrate judges, including the Western District of Pennsylvania’s Chief Judge Joy Flowers Conti, Judge Nora Barry Fischer and Magistrate Judge Lisa Pupo Lenihan.

The judges were asked 15 multiple-choice questions covering a number of e-discovery topics. Despite the numerous and varied e-discovery seminars and training sessions currently available to practitioners, the survey results indicate that many attorneys still lack e-discovery competency. In particular, the judges complained about two main problems – a lack of knowledge about their clients’ e-discovery environment and a lack of cooperation between opposing parties and attorneys.

To read the full article, click here. Reprinted with permission from the Lawyers Journal.

To access the Federal Judges Survey on e-Discovery Best Practices and Trends, click here.

State Bar of California Interim Opinion on Attorneys’ Duties in the “Handling of Discovery of [ESI]” – Comment Period Extended

As was previously reported on this blog, here, the California State Bar Standing Committee on Professional Responsibility and Conduct (“COPRAC”) published Proposed Formal Opinion Interim No. 11-0004, addressing “ESI and Discovery Requests,” for public comment in Spring 2014.  At its December meeting, COPRAC revised that opinion in response to public comment and approved an additional 90-day comment period, ending April 9, 2015.

For more information and for a full copy of the proposed formal opinion, click here.

E-Discovery in 2015: Will You Feel The Earth Move Under Your Feet?

By Daniel R. Miller, Bree Kelly

The civil litigation landscape is constantly changing as new laws are passed, new rules are promulgated, and new opinions are issued.  As in the natural world, some areas are more prone to change than others, and the bedrock of discovery has significantly shifted in recent years.  The rumblings began in earnest in the early part of this century, as judicial opinions began to address the significant challenges posed by the proliferation of electronic information in daily life.  Then, in 2006, “the big one” hit, and the Federal Rules of Civil Procedure were amended to substantially address the discovery of electronically stored information (“ESI”).  Eight years later, the aftershocks of that tremendous shake up continue and new fault lines have begun to emerge, providing clues—and warnings—as to where the next big shifts are likely to occur.  In this article, we will identify some of those areas, including emerging standards of competence in electronic discovery, the pending amendments to the rules of civil procedure, and the continuing evolution of the use of technology in electronic discovery, and beyond.

To read the full article, click here.

2014 ABA Journal Blawg 100: We Won! (And Thanks for Voting!)

We are proud to announce that we received the most votes in the ABA Journal Blawg 100’s Legal Tech category this year.  We were honored to make the list and are very excited to win in our category!

As you may know, we have been blogging on the topic of e-discovery for more than ten years now, and receiving this recognition from our readers is incredibly rewarding.  It is our sincere pleasure to provide this resource and we look forward to continuing this important work in the New Year, and beyond.

We would also like to say Congratulations to everyone in the 2014 Blawg 100; keep up the fantastic work!

Click here to read more about the ABA Journal’s Annual Blawg 100 list and to see the list of winners and nominees in each category.

The 2014 ABA Journal Blawg 100: Vote for Your Favorites Now!

The ABA Journal’s Annual Blawg 100 list was released yesterday and we are pleased to report that the Electronic Discovery Law blog was nominated in the Legal Tech category!  The public is now invited to weigh in on the nominees by voting for their favorite in each category.  To vote, click on the “Vote for your Favorites” banner below, and register to cast your vote for your favorite blogs.  The polls close on December 19, 2014.

Another Milestone Passes: Judicial Conference Approves Federal Civil Rules Amendments

As reported by the National Law Journal (subscription required), the Judicial Conference has approved proposed changes to the Federal Rules of Civil Procedure.  No revisions to the proposals were reported.  The proposals will now go before the United States Supreme Court for review and, if approved, will take effect on December 1, 2015, absent any action by Congress to revise or reject the amendments.

The rules to be affected by the pending amendments include rules 1, 4, 16, 26, 30, 31, 33 and 34 (collectively known as the “Duke Rules Package”). The proposed amendments also include an entirely rewritten Rule 37(e) addressing preservation and sanctions.

For more information regarding specific proposed changes (including the proposed text of the rules), read the Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, HERE.

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