Category: Resources

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e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims
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It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery
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In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations
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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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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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“Post-Public Comment” Version of The Sedona Conference® Commentary on Proportionality in Electronic Discovery Now Available
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The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)
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ABA Working Group Issues Interim Report on e-Discovery in Bankruptcy Cases

e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims

Rules of the U.S. Court of International Trade
Rule 16 Postassignment Conferences; Scheduling; Management
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Rule 45 Subpoena

United States Tax Court Rules of Practice and Procedure
Rule 70 General Provisions
Rule 71 Interrogatories
Rule 72 Production of Documents, Electronically Stored Information, and Things
Rule 82 Depositions Before Commencement of Case
Rule 103 Protective Orders
Rule 104 Enforcement Action and Sanctions
Rule 147 Subpoenas

Rules of the United States Court of Federal Claims 
Rule 16 Pretrial Conferences; Scheduling; Management
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Rule 45 Subpoena

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.

In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations

Presenters: Desiree F. Moore, Daniel R. Miller, Ivan L. Ascott, & Bree Kelly

On July 16, 2015, a panel of attorneys from K&L Gates presented a webinar discussion addressing the discoverability and admissibility of social media content.  Topics discussed included:

  • the discoverability standards applied by courts with regard to social media content;
  • the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards;
  • the relevance of the federal Stored Communications Act to discovery of information on social media;
  • the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and
  • the considerations pertinent to admission of social media content as evidence.

To download the presentation slides or to view and listen to the webinar, click here.

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

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.

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.

ABA Working Group Issues Interim Report on e-Discovery in Bankruptcy Cases

In March, the American Bar Association’s Electronic Discovery [ESI] in Bankruptcy Working Group issued its Interim Report on Electronic Discovery Issues in Bankruptcy Cases.  The Working Group “was formed to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve electronically stored information (ESI) in bankruptcy cases” and has prepared preliminary guidelines in three bankruptcy-related subject areas: “(i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.”  Those preliminary guidelines are appended to the Interim Report, which was issued to “invite and stimulate comments from a wider audience.”  Thus, readers are encouraged to review the report, available here, and to submit comments to the Working Group using the contact information provided.

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