Tag: NEWS & UPDATES

1
Western District of Washington Amends Local Rules
2
Delaware Court of Chancery Amends Rules, Discovery Guidelines
3
New Illinois Rules Address Inadvertent Disclosure
4
The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)
5
New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts
6
Northern District of California Adopts New E-Discovery Guidelines
7
Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification
8
Cloud Considerations: E-Discovery
9
International Trade Commission Proposes to Amend Rules of Practice and Procedure
10
Federal Trade Commission Issues Final Changes to Agency Procedure

Western District of Washington Amends Local Rules

On December 1, 2012, newly amended rules went into effect in the Western District of Washington, including rules addressing electronic discovery.  Notably, the new rules now require that parties contemplating discovery of electronically stored information consider adopting the newly promulgated Model Agreement Regarding Discovery of Electronically Stored Information in Civil Litigation—a fairly comprehensive order addressing many aspects of electronic discovery.  Many other amendments were also adopted.

For a full copy of the newly adopted rules, click here.

For a copy of the new Model Agreement, click here.

Delaware Court of Chancery Amends Rules, Discovery Guidelines

Effective January 1, 2013, the Delaware Court of Chancery has amended its rules “to account for modern discovery demands” and has “expanded its Guidelines for Practitioners,” originally released in January 2012.  The Court’s press release summarizes the changes:

The Court of Chancery will amend its Rules regarding discovery, effective January 1, 2013.  Rules 26, 30, 34 and 45 will be updated to account for modern discovery demands and will bring the Court’s rules in line with current practice.  The amendments refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things,” and explain how parties should respond to requests for ESI.  These changes are consistent with similar amendments to the Federal Rules of Civil Procedure.  Rule 26(c) also was revised to make clear that an out-of-state non-party from whom discovery is sought may move for a protective order in this state.

In addition to amendments to the Rules, the Court also has expanded its Guidelines for Practitioners, originally released in January 2012, to include guidelines regarding discovery.  These guidelines explain the Court’s expectations regarding parties’ responsibility to confer early and often regarding discovery, including about electronic discovery procedures, the overall scope of discovery, preferred procedures for collection and review of discoverable material, including ESI, the privilege assertion process, and the role of Delaware counsel in the discovery process.  The Court also developed guidelines for expedited discovery in advance of a preliminary injunction hearing.  These new guidelines encourage communication among counsel and are intended to assist the Bar in developing reliable and transparent procedures for electronic discovery.  The Court and its Rules Committee are hopeful that use of these guidelines will help avoid unnecessary and expensive disputes regarding the discovery process.

To read the full press release, or to access the new rules and guidelines, click here.

New Illinois Rules Address Inadvertent Disclosure

On November 28, 2012, the Supreme Court of Illinois entered an order adopting new Rule of Evidence 502 Attorney Client Privilege and Work Product; Limitations on Waiver and a second order amending Rule 201 General Discovery Provisions.  The newly adopted rules address the inadvertent disclosure of privileged information and closely follow the Federal Rules addressing the same (FRE 502 & FRCP 26(b)(5)(B)).  The rules will be effective January 1, 2013.

A copy of the order adopting new Rule 502 is available here.

A copy of the order adopting the amendment to Rule 201 (and others) is available 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.

New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts

On December 4, 2012, the New Jersey Supreme Court adopted amendments to the New Jersey Rules Governing Criminal Practice and to the Rules Governing Practice in the Municipal Courts.  The amendments were initially recommended by the Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters.  The amendments are effective on January 1, 2013.

Among other things, the amendments to the Rules of Criminal Practice address a newly imposed obligation to meet and confer on the issue of electronic discovery (Rule 3:9-1(b)); the discoverability of electronically stored information generally (e.g., by specifically identifying such information as discoverable under the rules), including the format of production (Rule 3:13-3); and discovery fees (Rule 3:13-5).  Similarly, the amendments to the Rules of Practice in the Municipal Courts address (among other things) the discoverability of electronically stored information generally, including the format of production and discovery fees (Rule 7:7-7).

For a copy of the Notice to the Bar, including the Court’s Order, click here.

Northern District of California Adopts New E-Discovery Guidelines

This week, the U.S. District Court for the Northern District of California announced "new Guidelines for counsel and litigants regarding the discovery of electronically stored information ("ESI")."

According to the Court’s announcement:

The Guidelines are designed to establish best practices for evidence preservation in the digital age and to ensure that local practices regarding the discovery of ESI keep pace with rapidly evolving technology and to be flexible enough to be used in a wide variety of cases.  According to Judge Laporte:  “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure.”

The package of new ESI-related documents comprises:

• Guidelines for the Discovery of Electronically Stored Information;
• ESI checklist for use during the Rule 26(f) meet and confer process;
• Model Stipulated Order Re: the Discovery of Electronically Stored Information.
 

To read the full text of the announcement, click here.
To access the new guidelines and related documents, click here. 

Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Nov. 8, 2012)

On November 8th, District Court Judge Andrew L. Carter, Jr. filed his long awaited decision in response to Plaintiffs’ Motion for Recusal or Disqualification of Magistrate Judge Andrew Peck.  In his short and to the point opinion, Judge Carter concluded that “Judge Peck’s decision accepting computer-assisted review, reached upon consideration of the applicable law, was not influenced by bias, nor did it create any appearance of bias.”  The court further found that “Magistrate Judge Peck’s conduct falls within proper bounds of judicial conduct” and that “[h]is denial of Plaintiffs’ recusal motion is consistent with the interests of judicial economy and the administration of justice.”

A full copy of the order is available here.

Cloud Considerations: E-Discovery

By: Katie Taylor, K&L Gates

SaaS, PaaS and data hosting providers stress the significant efficiencies to be gained from cloud computing when marketing their services.  Depending on the cloud computing system you are considering, however, a number of features may have a significant impact on your company’s ability to comply with electronic discovery obligations should it be sued or subpoenaed.

To read the entire article, click here.

International Trade Commission Proposes to Amend Rules of Practice and Procedure

As announced in today’s edition of the Federal Register, the International Trade Commission has proposed to amend its Rules of Practice and Procedure to address “concerns that have arisen about the scope of discovery in Commission proceedings under section 337 of the Tarrif Act of 1930 (19 U.S.C. 1337) (“section 337”).”  “The intended effect of the proposed amendments is to reduce expensive, inefficient, unjustified, or unnecessary discovery practices in agency proceedings while preserving the opportunity for fair and efficient discovery for all parties.”  To that end, the proposed amendments address issues including the discovery of inaccessible information and limitations to discovery similar to those currently contemplated in Fed. R. Civ. P. 26(b)(2)(C).  The proposed amendments also seek to add new provisions addressing privileged information and work product, including by requiring the production of privilege logs and by providing procedures for addressing the inadvertent production of privileged materials.

For more information on the proposed amendments, click here to be taken to today’s edition of the Federal Register.  Please note too, the Commission invites public comment on its proposals due no later than 5:15 PM on December 4, 2012.

Federal Trade Commission Issues Final Changes to Agency Procedure

Yesterday, the Federal Trade Commission (“FTC”) announced that it has issued “final changes to agency procedure that will streamline the FTC’s investigatory process, make updates to keep pace with electronic evidence discovery, and provide more detail on how the agency evaluates allegations of misconduct by attorneys practicing before the Commission.”  Among the changes highlighted in the agency’s announcement is a new requirement that parties "meet and confer with FTC staff within 14 days (with certain exceptions) to resolve electronic discovery issues relating to subpoenas and civil investigative demands (CIDs), as well as any other issues” and a change which will relieve “parties of their obligations to preserve documents related to an FTC investigation after a year passes with no written communication from Commission staff.”  Other changes include, among other things, express references to electronically stored information throughout the rules and specific amendments addressing “the manner and form of production of ESI” (§2.7(j)) and inadvertent production and waiver (§2.11(d)).  The rules become effective on November 9, 2012.

To read the agency’s press release, which includes a link to the adopted amendments, click here.

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