On Wednesday, April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of “electronically stored information.” The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The proposed amendments were transmitted to the Supreme Court last September, after the Judicial Conference unanimously approved them. Read More
On April 24, 2006, from 9 a.m. until 1 p.m., the Advisory Committee on the Federal Rules of Evidence will conduct a hearing (or “mini-conference”) on a proposed rule that would govern waiver of attorney-client privilege and work product protection. The hearing will take place at the Fordham University School of Law Amphitheater in New York City, and will consist of short statements by invited presenters, with time left for a discussion among the presenters and questions from the Committee. Interested members of the public are invited to attend the hearing and are free to attend the Committee meeting that will follow. Read More
In 2000, Credit Suisse First Boston Corporation (“CSFB”) employed Frank Quattrone as head of its Global Technology Group (the “Tech Group”). In that capacity, Quattrone managed approximately 400 technology investment bankers from the firm’s Palo Alto, California office. The Tech Group was responsible for CSFB’s investment-banking activity related to technology companies, including underwriting services. The Tech Group provided services to two types of customers – tech company issuer-clients undertaking offerings of equity-based securities and individual customers who traded securities as clients of the Tech Group’s Personal Client Services subgroup. Read More
The new Local Rule 26.1 creates a duty on the part of counsel to “inquire into the computerized information-management systems used by their clients so that they are knowledgeable about the operation of those systems, including how information is stored and how it can be retrieved.” The new rule also requires counsel to “inform their clients of the need to preserve information stored in computerized information-management systems so that information relevant to the claims or defenses in the case is not in any way destroyed.” In addition, the new rule sets out a number of e-discovery topics the parties must discuss in their Local Rule 16.3(a) conference of attorneys. Click “Continue Reading” below for the the full text of the new rule. Read More
The National Archives and Records Administration (“NARA”) announced that it will be revising regulations to provide for appropriate management and disposition of very short-term email by allowing management of such records within the email system. Disposition of Electronic Mail Records with Short Retention Periods, Final Rule, 71 Fed. Reg. 8806-8808 (Feb. 21, 2006) (to be codified at 36 C.F.R. pt. 1234). The effective date for changes is March 23, 2006. Read More
Pike and Fischer’s Electronic Evidence Update, a service of Pike and Fischer Digital Discovery and e-Evidence, reported today that the Advisory Committee on the Federal Rules of Evidence will consider a new rule during a meeting on April 24. Proposed Federal Rule of Evidence 502 codifies waiver of privilege and work product protection by disclosure, and includes exceptions to such waiver. An exception for inadvertent disclosure addresses the concern that the cost of privilege review has become prohibitive in cases involving electronic discovery. The rule also codifies the controlling effect of (1) court orders regarding the preservation or waiver of privilege or work product protection and (2) party agreements regarding the effect of disclosure. Court orders are made applicable to non-parties, and party agreements regarding the effect of disclosure are made binding on the parties to the agreement but not on other parties unless the agreement is incorporated into a court order. Read More
Preston Gates partner Helen Bergman Moure was recently featured as the expert on ComplianceResources.org’s “Ask the Compliance Expert” column. The interview focuses on document retention and e-discovery.
In the Q&A, Helen notes that some of the major challenges facing corporations include the “volume of electronic data being created and stored by individual users, education of employees about the importance of effective document retention practices, and implementation of effective policies that balance business needs with legal requirements.”
In the interview, she also addresses litigation hold procedure and provides some high-level recommendations for helping a company prepare for document productions and requests related to litigation or a governmental investigation.
Click here to read the full interview.
The Federal Trade Commission (“FTC”) issued an announcement today detailing reforms to the merger review process designed to reduce burdens associated with second requests for documents and data. Such burdens have increased substantially since the Hart-Scott-Rodino Act (“HSR Act”) became operational in 1978 due to an increased reliance by agencies upon direct market analyses and advances in technology resulting in higher production volume. Parties and agencies often spend millions of dollars, and associated investigations can take six to nine months. Last fiscal year alone, the FTC received nine productions exceeding one million pages. New guidelines and procedures will take effect for all HSR Act filings submitted on or after February 17, 2006. Read More
We are pleased to announce our latest milestone: our Case Database now features descriptions and, in some cases, complete copies of the opinions from Westlaw, of more than 400 cases involving electronic discovery issues! Curious to know what e-discovery topics were most prevalant in our courts last year? Visit the database and enter “2005” in the search box for a complete overview of the 108 cases involving electronic discovery we tracked last year.
In his article, Todd outlines pending amendments to the Federal Rules of Civil Procedure and discusses their implications for handling metadata and other types of electronically stored information in litigation cases. While the proposed amendments do not specifically reference metadata, he notes “there are a number of amendments that should clarify issues related to its preservation and production.”
If the rules are approved this year, they will become law on December 1, 2006. Either way, “even in the absence of amended rules,” Todd advises, “parties can avoid risk by raising metadata issues with opposing counsel and the court early in the litigation.”