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.
Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information. Thomas Allman, a recognized authority on electronic discovery, has given permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country. Our thanks to Mr. Allman for his analysis, and his gracious permission to post the article here.
To access the article, click here.
Thomas Y. Allman. The author, a retired General Counsel, is Chair Emeritus of Working Group 1 of the Sedona Conference,® a co-editor of the PLI Electronic Discovery Deskbook (2011) and serves as an Adjunct Professor at the University of Cincinnati College Of Law.
In March, The Sedona Conference® released a public comment version of its latest publication: Commentary on Ethics & Metadata. The commentary is the first “to move beyond [Working Group 1’s] previously exclusive focus on aspects of discovery or records management/preservation” and focuses on ethical obligations surrounding metadata in both the discovery and non-discovery context.
The commentary is available for download from The Sedona Conference®, here.
In December, the Sedona Conference® made available its latest publication, International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (Public Comment Version). Among the information included are six Principles and attendant commentary as well as a model protective order and a “model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices.”
From the Introduction:
Here, TSC advances its position that data protection and discovery must co-exist. Data Protection Laws, after all, are not inherently antithetical to U.S. preservation and discovery efforts. U.S. courts and parties often provide protections for personal, confidential, and sensitive information through the use of confidentiality agreements and protective orders. Courts, in fact, have denied discovery in circumstances where privacy rights are deemed more important than the discovery sought by litigants.
If you’re looking for a list of State or Local District Court Rules addressing electronic discovery, please click the link “Local District Court Rules” or “State Court Rules” on the left-hand side of this page.
Last month The Sedona Conference made available a public comment version of its newest publication, The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary (“The Resources”). The Resources “are intended to assemble and promote a variety of proven judicial management tools to help parties develop and execute appropriate, cost-effective, cooperative discovery plans; avoid unnecessary discovery disputes; and resolve discovery disputes that may arise in a fair and expeditious manner.” The publication, a wealth of information in itself, is part of a larger effort by The Sedona Conference® to create an “interactive web site for judges to view, comment on, and contribute to over time.” The Resources will:
In its most recent publication (available now in its Public Comment Version) the Sedona Conference takes on another difficult issue of e-discovery: the preservation and production of databases and database information. The publication, The Sedona Conference® Database Principles: Addressing the Preservation & Production of Databases and Database Information in Civil Litigation, is intended to “provide practical guidance and recommendations to both requesting and producing parties” and to “simplify discovery in civil actions involving databases and information derived from databases.” In furtherance of those goals, the publication includes an informative introduction to the issue of preserving and producing database information, a discussion of the application of some of the existing Sedona Principles, and a discussion of the six new Database Principles and their practical application. The six new Database Principles are:
Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery. The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today. Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.” Those principles are:
The Sedona Conference®, a charitable research and education institute “dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights” recently published an update to its 2007 Commentary on Legal Holds, which, according to its authors, “reflects an accurate view of reasonable and defensible practices that organizations should consider in 2010 and going forward when addressing the issue of legal hold triggers and process.” The Commentary provides insightful discussion of the issues surrounding preservation obligations and legal holds, including eleven Guidelines “intended to facilitate compliance by providing a framework an organization can use to create its own preservation procedures.” It is also a great resource for practitioners and other members of the legal community who recognize the need to stay abreast of changes in this important area.
The Sedona Conference Glossary, now in its third edition, is intended to served as a “tool to assist in the understanding and discussion of electronic discovery and electronic management issues…” and provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.
Both publications are available for download here.
U.S. Court of Federal Claims
Rules of the United States Court of Federal Claims 16, 26, 33, 34, 37, 45