Category: News & Updates

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Looking back on Zubulake, 10 years later
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Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure
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Proposed Rule 37(e) Draft Committee Note Now Available
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State Bar of California Issues Interim Opinion on Attorneys’ Ethical Duties in the “Handling of Discovery of [ESI]” – Public Comment Invited
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Advisory Committee Approves Proposed Amendments to Civil Rules, Next Stop Standing Committee!
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Following Public Comment, Changes Recommended to the Proposed Amendments to the Federal Rules of Civil Procedure
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Preservation Costs Survey: The Results are In!
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In Case You Missed It: ABA Working Group Publishes “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases”
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Speak Now or Forever Hold Your Peace: Comment Period on Proposed Amendments to Federal Rules Closes February 15, 2014
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Martha Dawson Named One of Top 250 Women in Intellectual Property

Looking back on Zubulake, 10 years later

By Victor Li

This article was originally published in the ABA Journal, September, 2014.

When Laura Zubulake first brought her employment discrimination lawsuit to attorney James Batson in 2001, neither of them thought the case would make history. Neither did U.S. District Judge Shira Scheindlin, who presided over the case in the Southern District of New York.

In fact, Scheindlin has mentioned many times that Zubulake’s lawsuit seemed like a “garden-variety employment discrimination case.” Zubulake didn’t get a promotion she thought she had earned at the global financial services firm UBS Warburg, filed a complaint with human resources and suddenly found herself at odds with her bosses. It’s a fact pattern that could describe hundreds, or even thousands, of employment discrimination lawsuits currently pending throughout the United States.

Turns out, they couldn’t have been more wrong.

To read the full article, click here.

Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure

Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.  The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule).  Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.

The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September. 

Proposed Rule 37(e) Draft Committee Note Now Available

As previously discussed on this blog, proposed amendments to the Federal Rules of Civil Procedure were recently approved by the Advisory Committee on Civil Rules for submission to the Committee on Rules of Practice and Procedure (the “Standing Committee”).  At the time of approval, the Committee Note for Proposed Rule 37(e) remained “under construction.”  The proposed note has now been drafted, however, and was published in the Agenda Book for the Standing Committee’s May meeting, to be held in Washington, D.C. on May 29-30.

A copy of the Agenda Book is available here.

State Bar of California Issues Interim Opinion on Attorneys’ Ethical Duties in the “Handling of Discovery of [ESI]” – Public Comment Invited

The State Bar of California Standing Committee on Professional Responsibility and Conduct has issued Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) for public comment.  By analyzing a hypothetical fact pattern, the interim opinion addresses the following question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” Public comment on the opinion is being accepted until June 24, 2014.  While this opinion will not directly affect practice outside of the State of California, it nonetheless may provide all attorneys with valuable insight into the duties of counsel in electronic discovery.  [Please Note: California has not adopted the Model Code of Professional Conduct.  Despite that, the opinion acknowledges that the authors “look[ed] to federal jurisprudence for guidance, as well as applicable Model Rules, and appl[ied] those principals [sic] based upon the California ethical rules and California’s existing discovery law outside the e-discovery setting.”] Read More

Advisory Committee Approves Proposed Amendments to Civil Rules, Next Stop Standing Committee!

As was reported on this blog just last week, the Advisory Committee on Civil Rules met on April 10th and 11th to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment.  On the first day of meetings, the Advisory Committee unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34, including the Duke Subcommittee’s recommendations as outlined in the Advisory Committee’s Agenda Book (discussed in a prior post and available here).  As approved by the Advisory Committee, the amendments would, among other things, narrow the scope of discovery by eliminating discovery of information relevant to the “subject matter involved in the action”; move considerations of proportionality into Rule 26(b)(1); shorten the time for service under Rule 4(m); add the preservation of ESI and ER 502 agreements to the permitted contents of a Rule 16 scheduling order; modify the requirements for responses to Rule 34 requests for production; and allow early delivery of Rule 34 requests prior to parties’ Rule 26(f) conference.  The proposed amendments as adopted will now be submitted to the Committee on Rules of Practice and Procedure (“the Standing Committee”) for its review and potential approval.

On the second day of meetings, the Advisory Committee took up proposed amendments to Rule 37(e).  As was previously discussed on this blog, the Discovery Subcommittee to the Advisory Committee had recommended significant changes to the version of the proposed rule which was published for public comment.  The proposed amendments to Rule 37(e) underwent further revision, however, even as the meeting was ongoing, and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee on Friday morning.  Read More

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.

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.

Martha Dawson Named One of Top 250 Women in Intellectual Property

Managing Intellectual Property – IP Stars has recognized K&L Gates attorneys Martha Dawson, Susan Hollander, Susan Jackson, Pallavi Wahi, Christine Vito, and Rachal Winger in its inaugural edition of “Top 250 Women in IP 2013.”

The nominees were chosen based upon the rankings of the 2013 edition of IP Stars, researched between June 2012 and April 2013.  That research included thousands of interviews and surveys by intellectual property partners and law firms across the United States.

Click here to see a full copy of the list.

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