Tag: NEWS & UPDATES

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E-Discovery Model Order Now Available for Patent Cases
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Now Available: The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary (Public Comment Version)
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Connecticut Amends Rules Addressing Electronic Discovery, Effective 2012
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San Diego County Bar Issues Ethical Opinion Addressing Friend Requests
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Phase Two of Seventh Circuit Electronic Discovery Pilot Program Extended to May 2012
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The Sedona Conference® Publishes “Database Principles”
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Delaware Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information
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K&L Gates, EDRM Collaborate to Enhance E-Discovery Database
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Welcome Wisconsin! E-Discovery Amendments Become Effective January 1, 2011
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Discovery of Social Networking Sites

E-Discovery Model Order Now Available for Patent Cases

Please Note:  Since the date of the original post, the Model Order has been removed from the Federal Circuit’s website.  The following statement now appears on the web page of the Advisory Council for the United States Court of Appeals for the Federal Circuit:

The Advisory Council published model orders concerning e-discovery and limitations on claims and prior art, and posted a disclaimer that the Court did not approve the model orders.  To avoid the risk of any misperception that the Court has endorsed or taken any position on the model orders through the Advisory Council, or otherwise, the Advisory Council confirms that it does not sponsor or endorse orders.

The above statement also provides a link to further explanation, which states in full:

Model orders concerning e-discovery and limitations on claims and prior art were posted on the court’s website.  Those orders have now been removed since the court has not sponsored or endorsed the orders.  In light of the court’s determination, the advisory council should not be viewed as having sponsored or endorsed these orders on behalf of the court.

A link to the Advisory Council’s web page containing the above statements is available, here.

 

During his speech at the E.D. Texas Judicial Conference on Tuesday, Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit introduced the new Model Order Regarding E-Discovery in Patent Cases.  Per Chief Judge Rader, the goal of the model order is to “streamline e-discovery, particularly email production, and require litigants to focus on the proper purpose of discovery—the gathering of material information—rather than on unlimited fishing expeditions.”

The model order, which contains 14 specific provisions, addresses a myriad of topics including cost shifting, metadata, and the treatment of privileged information (e.g., inadvertent production does not result in waiver).  As indicated, however, the majority of the provisions address the discovery of email.  For example, the model order provides that “[g]eneral ESI production requests under Federal Rules of Civil Procedure 34 and 45 shall not include email or other forms of electronic correspondence (collectively ‘email’)” and that “[t]o obtain email, parties must propound specific email production requests.”  Moreover, those requests “shall only be propounded for specific issues, rather than general discovery of a product or business.”  The model order further provides that email production “shall be phased to occur after the parties have exchanged initial disclosures and basic documentation about the patents, the prior art, the accused instrumentalities, and the relevant finances.”  Also within the model order is a limitation on the number of custodians per producing party from which email may be requested (5) and on the number of search terms “per custodian per party” (5), although the parties may jointly agree to modify those limits.

A copy of Chief Judge Rader’s comments at the Judicial Conference is available here.

A full copy of the [Model] Order Regarding E-Discovery in Patent Cases is available here.

Now Available: The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary (Public Comment Version)

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:

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Connecticut Amends Rules Addressing Electronic Discovery, Effective 2012

On June 20, 2011, the judges of the Superior Court adopted revisions to the Connecticut Practice Book, including many amendments addressing electronic discovery.  Most amendments (including those addressing electronic discovery) will become effective on January 1, 2012.  Although Connecticut’s rules previously addressed the issue of electronic discovery, the newest amendments provide substantially more instruction.  Among the more notable amendments are the addition of Rule 13-5(9) allowing a court to issue a protective order which would allow for cost allocation and other remedies to avoid undue burden, etc. related to the discovery of electronically stored information; revisions to Rule 13-9(d) addressing the format of production; the addition of Rule 13-14(d) which closely, but not exactly, follows Federal Rule 37(f), and provides safe harbor for the loss of information resulting from routine, good faith operations of systems or processes “in the absence of a showing of intentional actions designed to avoid known preservation obligations”; and the addition of Rule 13-33 (Claim of Privilege or Protection After Production) which “provides a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery, and, if the claim is contested, permits any party that received that information to present the matter to the court for resolution.”

All of the amendments to Connecticut’s Practice Book are available here.

San Diego County Bar Issues Ethical Opinion Addressing Friend Requests

On May 24, 2011, the San Diego County Bar Association issued SDCBA Legal Ethics Opinion 2011-2, addressing the question of whether counsel may send a “friend request” to opposing parties.  Following extensive analysis of the issue, the opinion concludes as follows:

Social Media sites have opened a broad highway on which users may post thier most private personal information.  But Facebook, at least, enables its users to place limits on who may see that information.  The rules of ethics impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel.

We have concluded that those rules bar an attorney from making an ex parte friend request of a represented party.  An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party.  We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.  Represented parties shouldn’t have “friends” like that and no one – represented or not, party or non-party – should be misled into accepting such friendship.  In our view, this strikes the right balance between allowing unfettered access to what is public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously circumventing the privacy even of those who are unrepresented.

A full copy of the opinion is available here.

Phase Two of Seventh Circuit Electronic Discovery Pilot Program Extended to May 2012

The second phase of the Seventh Circuit’s Electronic Discovery Pilot Program, previously scheduled to end this month, has been extended to May 2012, according to the Interim Report on Phase Two.  According to the interim report, the decision to extend the program was made “early in Phase Two” to “allow a fuller evaluation of the Principles’s application.”  Moreover, the original principles of the program were revised “in response to the Phase One survey results” and Phase Two Principles were promulgated on August 1, 2010, to be applied for the duration of Phase Two.  Specifically, the revisions affected principles 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution) and 2.06 (Production Format) and are available for review in the interim report on the program’s new website, www.discoverypilot.com.

A copy of the Interim Report on Phase Two is also available here.

The Sedona Conference® Publishes “Database Principles”

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:

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Delaware Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information

Last week the Delaware Court of Chancery issued new guidelines addressing the preservation of electronically stored information.  The guidelines are intended to “remind all counsel … of their common law duty to their clients and the court with respect to the preservation of electronically stored information.”  Although less than two pages long, the guidelines offer a straightforward discussion of the preservation obligation that arises upon anticipation of litigation and address specific topics including the need for attorney oversight in preservation, steps to be taken in “most cases,” “potential problem areas,” and the possibility of limiting or even eliminating the discovery of ESI upon agreement with opposing parties and their counsel, among other things.

A full copy of the guidelines are available here.

K&L Gates, EDRM Collaborate to Enhance E-Discovery Database

As a way of continuing to enhance the value of Electronic Discovery Law, we recently embarked on a project with the e-Discovery Reference Model (EDRM) to classify the more than 1,800 cases in our case database according to the EDRM standards.  These cases will retain their existing searchable tags in addition to the new EDRM classification.  To accomplish this, several EDRM member organizations will soon participate in an “EDRM Coding Challenge” to determine how to most efficiently and accurately identify the EDRM phases to be associated with each case in the database.  Thanks to George Socha, Tom Gelbmann, and the challenge participants from EDRM for their contributions to this project so far and special thanks to LexisNexis and Applied Discovery for supplying the full text of the first 200 case opinions to be coded.  Please watch our blog for updates on this exciting collaboration.

In the meantime, our case database remains available for your e-discovery research needs.

Welcome Wisconsin! E-Discovery Amendments Become Effective January 1, 2011

On January 1, 2011, the e-discovery amendments to Wisconsin’s rules of civil procedure become effective.  The amendments, affecting Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, address for the first time the discovery of electronically stored information (“ESI”).  Among other things, the amendments address issues including the parties’ obligation to meet and confer, the format of production, and safe harbor from sanctions when ESI is lost as the result of the routine, good-faith operation of an electronic system.

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Discovery of Social Networking Sites

By: Martha Dawson, Michael Goodfried, K&L Gates

This article appeared in DRI’s E-Discovery Connection, Volume 5 Issue 3, on December 23, 2010

Consider how you, or someone you know, uses social networking sites; and consider how valuable this could be in litigation.

• “Check out the photos from my climb of Mt. Rainier. It rocked! I guess my back injury wasn’t that bad after all.”
• I can’t believe what my boss just did.”
• “My kids are driving me crazy. Anyone want to borrow them for the night?”

Are Social Networking Sites Discoverable?

Social networking sites are internet sites on which individuals or companies can create profiles about themselves and share information with others.  Users can update their status, type blog entries, post pictures or videos, send email or instant messages, or post comments on the profiles of their contacts, among many other offerings.  One of the most important aspects of social networking sites is the ability to link up with other users as “friends” or “contacts,” and decide with whom to share information.  Users can control their privacy settings and choose which information to make publically available, share with their contacts, share with their contacts’ contacts (friends of friends), or show only to certain individuals.  Some of the most popular social networking sites are Facebook, MySpace, Twitter, and LinkedIn.

To read the full article, click here.

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