Tag: NEWS & UPDATES

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Martha Dawson Named One of Top 250 Women in Intellectual Property
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Da Silva Moore: Plaintiffs’ Petition for Writ of Certiorari on Question of Recusal Denied
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E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use
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Proposed Amendments to Civil (and Bankruptcy) Rules Posted for Public Comment
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E-discovery’s Trailblazers
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Da Silva Moore: Plaintiffs Petition for Writ of Certiorari on Question of Recusal
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U.S. International Trade Commission Adopts e-Discovery Rules
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Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck
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“Post-Public Comment” Version of The Sedona Conference® Commentary on Proportionality in Electronic Discovery Now Available
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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

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.

Da Silva Moore: Plaintiffs’ Petition for Writ of Certiorari on Question of Recusal Denied

On October 7, 2013, the Supreme Court of the United States denied Plaintiffs’ Petition for Writ of Certiorari arising from Magistrate Judge Andrew Peck’s refusal to recuse himself in this case.  As was previously reported on this blog, Plaintiffs sought an answer to the question: “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?”  Readers may recall that the plaintiffs in this case sought the recusal of Magistrate Judge Peck following his approval of Defendant’s predictive coding protocol.  That motion was denied by Magistrate Judge Peck.  Plaintiffs then took the issue before the District Court, which likewise declined to compel recusal, and then to the Second Circuit, which denied Plaintiffs’ petition for a writ of mandamus.  Plaintiffs then petitioned the United States Supreme Court for a Writ of Certiorari, which, as discussed, was denied.

E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use

The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist.  “It is within the judicial officer’s discretion whether these materials may be used.”

The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others.  The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.

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Proposed Amendments to Civil (and Bankruptcy) Rules Posted for Public Comment

The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is now published online for public comment.  The proposed amendments to the civil rules would affect rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and the Appendix of Forms.  Many of the proposed amendments are quite significant, particularly with regard to discovery, and our readers are therefore encouraged to review them carefully and share their thoughts with the Advisory Committee.

All written comments are due by February 15, 2014, and may be submitted electronically or by mail.  Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX. 

To learn more about all of the proposed amendments and for instructions regarding how to submit your comments, click here.  For those interested only in the proposed amendments to the Rules of Civil Procedure, click here, to be taken directly to a discussion of those proposals.

E-discovery’s Trailblazers

Eleven people —lawyers and nonlawyers — who helped create the industry.

Published by: The American Lawyer, July 29, 2013

Clearly it took a village to define and create today’s electronic discovery industry.  Ever since the sector’s early days, marked by the litigation following the Exxon Valdez oil spill in 1989, a series of lawyers, consultants, archivists, and judges have each played key roles in outlining processes, setting standards, defining the scope of e-discovery, and anticipating future trends.  Some, like K&L Gates partner Martha Dawson and U.S. District Court judge Shira Scheindlin, were early and vocal advocates of a robust role for e-discovery.  Others, like Jason R. Baron of the U.S. National Archives and Records Administration, U.S. Magistrate Judge Andrew Peck, and U.S. District Court Judge Paul Grimm, focus on narrowing the scope and improving the efficiency and cost-effectiveness of e-discovery requests.  Another group dived deep into the long process of creating uniform standards and procedures for e-discovery:  This is a diverse group, including such people as consultants George Socha and Tom Gelbmann, Sedona Conference founder Richard Braman, and U.S. District Court Judge Lee Rosenthal, who chaired the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedures during a crucial period beginning in 2003.

PRESENT AT THE CREATION
By Alan Cohen

They come from different backgrounds. Some are lawyers, some are technology experts, and some are a little of both.  These are our picks for six of the most important e-discovery trailblazers.

A FRONT-ROW SEAT
By Lisa Holton

Federal judges were among the first to see the sweeping changes that electronic discovery has brought to many areas of the law.  These five judges have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.

Click here for links to the full articles.

Da Silva Moore: Plaintiffs Petition for Writ of Certiorari on Question of Recusal

It was reported this week that the Plaintiffs in this case have filed a Petition for a Writ of Certiorari with the United States Supreme Court seeking an answer to the question:  “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?”  For those who don’t recall, the plaintiffs in this case sought Magistrate Judge Peck’s recusal following his approval of Defendant’s predictive coding protocol.  That motion was denied, and the denial was later affirmed by both the District Court and the Second Circuit Court of Appeals.  Now, Plaintiffs argue that the standard of review applied by the Second Circuit was too deferential and that the issue should have been reviewed “de novo.”

For more information on this interesting development, click here to read Victor Li’s article “ ‘Da Silva Moore’ Goes to Washington,” published yesterday by Law Technology News.

Although too numerous to be listed, more postings regarding this case can be accessed on this blog by searching “Da Silva Moore” in the search box (on the left of your screen).

U.S. International Trade Commission Adopts e-Discovery Rules

The U.S. International Trade Commission has adopted “final rules related to its e-discovery practices.”  “The new rules will be effective 30 days after publication in the Federal Register and are applicable to investigations instituted 30 days after publication in the Federal Register”—a Federal Register notice was issued on May 15, 2013.

The newly adopted rules address issues including the discovery of inaccessible information and limitations to discovery similar to those found in Fed. R. Civ. P. 26(b)(2)(C).  The newly adopted rules also add new provisions addressing privileged information and work product, including requiring the production of privilege logs and providing procedures for addressing the inadvertent production of privileged materials.

Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck

In what is possibly the final chapter to last year’s Da Silva Moore predictive coding saga, the Second Circuit has denied Plaintiffs’ petition for a writ of mandamus compelling the recusal of Magistrate Judge Andrew Peck.  For those unfamiliar with the issues in this case, copies of the underlying decisions from both Magistrate Judge Peck and District Court Judge Carter are available here and here.  While a copy of the Second Circuit’s denial is available below, the full text of the order states:

Petitioners, through counsel, petition this Court for a writ of mandamus compelling the recusal of Magistrate Judge Andrew J. Peck.  Upon due consideration, it is hereby ORDERED that the mandamus petition is DENIED because Petitioners have not “clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion” in denying their district court recusal motion, In re Basciano, 542 F. 3d 950, 956 (2d Cir. 2008) (internal quotation marks omitted) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988)), or that the district court erred in overruling their objection to that decision.

A copy of the court’s order is available here.

In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

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