In two reports released yesterday, the Institute for the Advancement of the American Legal System at the University of Denver and the American College of Trial Lawyers, set forth rules and guidelines to be utilized by jurisdictions in the creation and implementation of pilot programs aimed at addressing the problems identified by the two groups in their Final Report on the Joint Project of the American College of Trial Lawyers Task Force and the Institute for the Advancement of the American Legal System (“Final Report”) earlier this year. The Final Report, issued in March of this year, identified a myriad of problems within the nation’s civil justice system, including the ever growing expense of litigation, particularly with regard to discovery, and unnecessary delays in reaching resolution.
By Jennifer H. Rearden and Farrah Pepper
New York Law Journal
October 29, 2009
It turns out that Jean-Paul Sartre’s famous pronouncement that "hell is other people" was overly broad. Other people per se are not the problem, but rather other lawyers — and uncooperative ones at that. A federal judge in the late 1980s confirmed as much, as a recent e-discovery opinion reminds us: "If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."[FOOTNOTE 1]
By Peter Hall
Pennsylvania Law Weekly
October 19, 2009
An electronic discovery request in a dispute over the authenticity of a classic car has prompted a rare opinion from a Pennsylvania court on the emerging issues surrounding the discovery of electronically stored files by litigants in a civil case.
In Brooks v. Frattaroli, PICS Case No. 09-1709 (C.P. Lebanon Oct. 5, 2009), Lebanon County Common Pleas Judge Bradford H. Charles granted the defendants’ motion for a protective order, ruling that the plaintiff’s discovery request to enter the defendant’s property to inspect and copy computer files was overly broad.
Noting a relative dearth of precedent governing discovery of electronically stored information in Pennsylvania, Charles drew on the decisions of federal courts and recent changes to Federal Rule of Civil Procedure 34 to arrive at a balancing test that weighs the defendant’s right to privacy against the plaintiff’s desire to determine the truth.
Beginning October 1st, Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.
The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”
The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule26(f)(2). Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices. Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court. As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.
The Wall Street Journal , Sep. 21, 2009
By Chad Bray
NEW YORK — Lawyers for former Bear Stearns fund manager Matthew Tannin have asked a judge to prohibit prosecutors from introducing evidence at his criminal trial regarding the erasure of his personal email account in 2008, calling it an "eleventh-hour smear."
In a letter Monday, Susan Brune, a lawyer for Mr. Tannin, said the government’s evidence has failed to establish "that Mr. Tannin destroyed any documents" and Mr. Tannin and his counsel have preserved all documents.
At a hearing last week, prosecutors from the U.S. Attorney’s office in Brooklyn said that they had received a letter from Google Inc. indicating Mr. Tannin’s Gmail account was erased in March 2008.
Read the entire article here.
Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information. Recently, Thomas Allman, a recognized authority on electronic discovery, gave 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.
Many states have adopted state-wide provisions to address some of the unique procedural issues involved in e-discovery. In addition, a number of “commercial” or “business” courts within states, as well as local courts, have adopted specialized rules on the topic.
As of September 2009, twenty-three states have adopted statewide e-discovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (“2006 Amendments”). In addition, several states have adopted, typically as a separate measure, an analog to the Federal Evidence Rule 502 dealing with waiver of the attorney-client privilege or work product protection.
On August 14, 2009 the Judicial Council adopted amendments to California’s Rules of Court, including amendments to Rule 3.724, which now requires consideration of issues concerning the discovery of electronically stored information when the parties “meet and confer” prior to the initial case management conference. The amendments became effective immediately.
For a full copy of the amendments, click here.
Law.com, August 27, 2009
By Dan Levine
The Justice Department’s aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age.
In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California. The computer files taken by the government revealed information about far more people — including professional baseball players and others — than allowed by a search warrant.
The decision reverses an earlier panel upholding the search. It also represents the second high-profile drubbing that the U.S. Attorney’s Office for the Northern District of California has received from the 9th Circuit in as many weeks: The appeals court just tossed former Brocade CEO Gregory Reyes’ backdating conviction because of prosecutorial misconduct.
Click here to read the full article.
By K&L Gates partner Todd Nunn.
This article appears in the summer edition of DRI’s E-Discovery Connection, and begins:
There are now rules specifically designed to protect the attorney-client privilege during document production: Federal Rule of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502. These rules provide a procedure for clawing back inadvertently produced attorney-client privilege and work product documents and a consistent framework for determining whether the privilege was waived. However, protection of privilege remains one of the primary concerns, and cost drivers, of parties producing documents in discovery.
The goals of the holistic approach to privilege protection are to protect attorney-client privilege and work product documents from being produced. Further, in the event of production, the goal is to have taken “reasonable steps” to protect the privilege from waiver under Federal Rules of Evidence 502(b). The goal is to do this while also producing documents that are responsive to discovery requests in a timely and economical way. This is made more challenging by the increasing volumes of electronically stored information (“ESI”) that must be screened for privilege.
Read a copy of the full article here.
Bloomberg.com, July 8, 2009
By David Voreacos and Mort Lucoff
July 8 (Bloomberg) — Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American account holders in a crackdown on tax evaders.
The assertion came in court papers yesterday in federal court in Miami, where the Justice Department sued UBS on Feb. 19, a day after the bank avoided U.S. prosecution for helping wealthy Americans evade taxes. The U.S. effort to enforce a summons seeking the names would force UBS to violate Swiss laws barring disclosure of such data, the filing said.
The Swiss government “will use its legal authority to ensure that the bank cannot be pressured to transmit the information illegally, including if necessary by issuing an order taking effective control of the data at UBS that is the subject of the summons,” according to the filing.
Click here to read the full article.