Tag: NEWS & UPDATES

1
Da Silva Moore Plaintiffs File Reply Brief In Support of Objections to Discovery Rulings
2
Eastern District of Texas Adopts its own [Model] Order Regarding E-Discovery in Patent Cases
3
Government’s “Recommendations for ESI Discovery in Federal Criminal Cases” Revealed
4
“If you’re gonna just read one blog . . . it should probably be the Electronic Discovery Law blog . . . .”
5
Must Parent and Attachment Files Be Kept Together?
6
True Grit: Four Models to Rein in E-Discovery Costs
7
D.C. Court of Appeals Committee on the Unauthorized Practice of Law Issues Opinion addressing “Discovery Services Companies”
8
District of Delaware Adopts Revised Default Standards for Discovery
9
Southern District of New York Implements Pilot Program for Complex Cases, Requires Joint Electronic Discovery Submission for Cases Involving ESI
10
Pennsylvania Supreme Court To Tweet Rulings

Da Silva Moore Plaintiffs File Reply Brief In Support of Objections to Discovery Rulings

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

As expected, on March 19, 2012, plaintiffs in this case filed their Reply in Support of Rule 72(a) Objection to Magistrate Judge Peck’s February 8, 2012 Discovery Rulings.  In it, plaintiffs summarize their arguments as follows:

Extrajudicial activities aside, what should matter is whether MSL’s Method will ensure that MSL fulfills its obligations under Rule 26 to produce reasonable discovery.  Here, the answer is a resounding no.  Judge Peck’s adoption of MSL’s Method was contrary to law and/or clearly erroneous for two main reasons.  First, Judge Peck adopted MSL’s Method on an insufficient record; Judge Peck failed to hold an evidentiary hearing or obtain expert testimony as to its reliability and accuracy.  Second, MSL’s Method fails to meet basic standards for reliability; the protocol risks failing to capture up to 65% of the documents material to Plaintiffs’ case.  Accordingly, Plaintiffs respectfully request that the Court reverse Judge Peck’s ESI rulings.

In support of their position, plaintiffs also filed declarations from their attorney, Siham Nurhussein, and their expert in this case, Paul J. Neale.  All that remains now is for District Court Judge Andrew Carter, Jr. to issue his ruling, which will be reported on this blog when it becomes available.

For a copy of Plaintiffs’ Reply, click here.
For a copy of the Declaration of Siham Nurhussein, click here.
For a copy of the Declaration of Paul J. Neale, click here.

Eastern District of Texas Adopts its own [Model] Order Regarding E-Discovery in Patent Cases

Signed by Chief District Judge Leonard Davis on February 27, 2012, amendments to the Local Rules in the Eastern District of Texas include a [Model] Order Regarding E-Discovery in Patent Cases similar to an order  promulgated by a subcommittee of the Advisory Council of the Federal Circuit late last year.  The new [Model] Order is different in several respects, however.  The treatment of email, for example, differs in several important ways, including that the presumptive limitation on the allowable number of custodians is raised from five to eight, that the presumptive limitation on the allowable number of search terms is raised from five to ten, and that the court may consider requests for additional or fewer custodians without limitation.  The [Model] Order in the Eastern District of Texas also includes instruction on the production of ESI, including, for example, requiring production in TIFF format and specifying that no party has an obligation to make its production text-searchable unless it already exists in that form or is being converted for use in the litigation, including for use by the producing party’s counsel.  The [Model] Order in the Eastern District also limits a party’s obligation to restore backup media absent a showing of good cause and likewise precludes the obligation to collect and preserve voicemails, PDAs, and mobile phones (deemed “not reasonably accessible”) absent the same showing. 

Although the rules are effective immediately, comments regarding the amendments will be accepted by the Clerk of Court until Friday, March 23, 2012.

A copy of the General Order Amending Local Rules is available here.

Government’s “Recommendations for ESI Discovery in Federal Criminal Cases” Revealed

This month, the Joint Electronic Technology Working Group (JETWG) revealed its “Recommendations for ESI Discovery in Federal Criminal Cases,” which are intended “to promote the efficient and cost-effective post-indictment production of electronically stored information (ESI) in discovery between the Government and defendants charged in federal criminal cases, and to reduce unnecessary conflict and litigation over ESI discovery by encouraging the parties to communicate about ESI discovery issues, by creating a predictable framework for ESI discovery, and by establishing methods for resolving ESI discovery disputes without the need for court intervention.”

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“If you’re gonna just read one blog . . . it should probably be the Electronic Discovery Law blog . . . .”

It was great to hear the Electronic Discovery Law blog receiving high praise in the most recent Digital Detectives podcast!  In particular, our thanks go out to Neil Squillante, publisher of LitigationWorld, who was the guest of Sharon D. Nelson and John W. Simek this month .  The podcast was called “The Best Resources for Staying Current in E-Discovery” and when the topic turned to blogs, Mr. Squillante had this to say:

If you’re gonna just read one blog because you don’t have time, it should probably be the Electronic Discovery Law blog published by K&L Gates, a law firm.  They cover the most important appellate opinions in the ediscovery space so it’s a good way to keep up with what’s going on, especially issues that scare lawyers like spoliation, sanctions, and so forth.

To listen to the podcast, click here.

Must Parent and Attachment Files Be Kept Together?

Thomas J. Smith and Matthew S. Collins, K&L Gates
The Legal Intelligencer, February 9, 2012

The extraordinary cost of e-discovery is well documented.  The amount of ESI that we generate is exploding and the use and prevalence of technology, its ease of access, and the relatively low cost mean that trend will continue.  Clients are becoming increasingly sensitive to and concerned about these increasing costs, and the ongoing economic malaise has only exacerbated the problem and hastened clients’ efforts to control such costs.  In doing so, parties are looking beyond macro controls such as the number of custodians, the nature of collections (full v. targeted), and filtering techniques (date limitations, keyword terms), and now look at micro controls, including the parsing of document families at a component level.  A key question, therefore, becomes: If one part of a multi-component document is relevant, should all nonprivileged parts of that document also be produced?

To read the entire article, click here.

True Grit: Four Models to Rein in E-Discovery Costs

By Robyn Weisman & Monica Bay
Law Technology News, January 30, 2012

Today’s top law firms and their corporate clients are struggling to find the right combination of people, processes, technology — and facilities — to effectively control the quality and costs of electronic data discovery.  The risks are acutely visible for those who stumble: not just court-ordered sanctions, but lost data, cases, clients, profits, and reputations.  So how can major firms speed up the processes, hire the right personnel, meet ethical obligations to protect client confidentiality, cooperate with opposing counsel, maintain proportionality (i.e., not spend more on EDD than appropriate for the potential exposure of a case) — yet quickly find and process appropriate data?  There’s no "one size fits all" single answer, but four models seem to be developing as loose frames:

To read the entire article, click here.

D.C. Court of Appeals Committee on the Unauthorized Practice of Law Issues Opinion addressing “Discovery Services Companies”

On January 12, 2012, the D.C. Court of Appeals Committee on the Unauthorized Practice of Law (“UPL Committee”) approved Opinion 21-12 addressing the applicability of D.C. Court of Appeals Rule 49 to “‘discovery services companies’—companies that state they offer comprehensive discovery services, including assistance with large scale document review, to legal services organizations.”  Rule 49 prohibits the unauthorized practice of law.  The Opinion specifically recognizes that in recent years such companies have “dramatically expanded the scope of their services” and have “begun to describe their services in increasingly broad language.”  Accordingly, the UPL Committee, through Opinion 21-12, sought to clarify the proper scope of services that such companies may offer and how those services may be represented to potential clients.

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District of Delaware Adopts Revised Default Standards for Discovery

Effective yesterday, the District of Delaware has adopted revised default standards for discovery, including electronic discovery.  The standards cover a broad range of e-discovery issues from cooperation and proportionality to preservation, privilege, and format of production, among others.  Clearly intended to provide more than just general guidance to parties before the court, the default standards are quite specific (e.g, identification of categories of ESI not presumptively subject to preservation and mandated formats for production) and parties are therefore advised to carefully consult the guidelines when practicing in the District of Delaware.

A copy of the guidelines is available for download here.

Southern District of New York Implements Pilot Program for Complex Cases, Requires Joint Electronic Discovery Submission for Cases Involving ESI

The Southern District of New York has implemented a new Pilot Program for Complex Cases which became effective on November 1, 2011.  The program was implemented in “response to the federal bar’s concerns about the high costs of litigating complex civil cases,” and is “designed to improve judicial case management of these disputes and reduce costs and delay.”  More specifically, “the rules are intended to shorten the timeline for certain actions, reduce motion practice, and flag issues requiring judicial intervention at an earlier stage in the litigation process.”  Fourteen types of civil lawsuits are designated as “complex cases,” including “stockholder’s suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions.”  District Court judges may also “remove a case from the pilot, or they can designate a case as complex” if it does not fall within the other, enumerated categories.

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Pennsylvania Supreme Court To Tweet Rulings

The Administrative Office of Pennsylvania Courts issued a press release Tuesday announcing that the Supreme Court of Pennsylvania has established a Twitter feed to "increase online access to its rulings:" 

The specially designated site will provide instant notification of the online posting of most Supreme Court information, such as orders, new rules, opinions and concurring and dissenting statements written by the justices.  Anyone can sign-up to receive alerts from the Court’s Twitter page, which can be accessed at http://twitter.com/SupremeCtofPA.  “Follow Us On Twitter” links also will appear on the state court system’s Web site to take interested parties directly to the page.

To read the full press release, click here.

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