Discovery Resources

Ralph Losey, Brett Anders (both of Jackson Lewis, the national workplace  law firm) and I will finish our discussion of the hot cases of last quarter on Wednesday, August 4, 2010.  Register here.

With an embarrassment of riches of cases to delve into, it was not surprising that we have a couple left over.

We’ll be talking about the Crispin case (Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010)).  This case has the SCA (Stored Communications Act), Facebook, and the balancing act between what is public and what is private.

Bray and Gillespie, the case thatcontinue…

The ever alert Ralph Losey posted a note about another amendment to the Pension Committee decision by Judge Shira Scheindlin:

At page 10, lines 7-10 replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issued in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.

Judge Scheindlin’s last amendment was to correctcontinue…

by Mary Mack, Corporate Technology Counsel, Fios.

Duke University hosted the 2010 Civil Litigation Conference for the second day, again live streamed. Ediscovery was discussed through the day, even when the topic was fact pleading or other procedural elements.

There was a consensus that preservation needs to be called out, triggers to preserve identified and a more clear safe harbor constructed (FRCP 37(e)). Other consensus items include the need for judicial management, quick rulings and education of the bench and bar.  The Seventh Circuit pilot project was very well received, as were state innovations (including Oregon).

There is less consensus on fact pleading, early mandatory disclosures, separatecontinue…

Duke University hosted the 2010 Civil Litigation Conference today in person and amazingly, live streamed.

Both video and audio were available and good, opening up the rule making process in an unprecedented way.  There was frank and lively discussion. It was a demonstration why public trials are important to model behavior when ideas are contested and passions high.

The participants had clearly done their homework as they quoted liberally from each other’s submitted papers to agree with some and disagree with other points.  I say point rather than argument, as conference encouraged interaction.

Day 2 of the conference will also be live streamed.  At the risk of degradingcontinue…

Wed. 3/24 – Mary Mack welcomes Charles W. Cohen (Partner, Co-Chair, eDiscovery Practice Group, Hughes Hubbard and Reed LLP) for Fios’ quarterly e-discovery case law update. They will explore recent court decisions, including Judge Scheindlin’s most recent ruling; the impact these cases may have and are already having; and tactics and strategies organizations should consider to help control their e-discovery costs and risks. More info / register >

12/9 – Be sure to register for this webcast featuring an outstanding panel of e-discovery experts discussing what’s wrong (and right) with the current e-discovery rules and system.  Moderated by Mary Mack, the panel members include:

• Richard Braman, Executive Director of the Sedona Conference
• Craig Merritt, Christian & Barton LLP & former member of The American College of Trial Lawyers Task Force on Discovery
• Bruce Parker, Partner, Venable LLP – Lawyers for Civil Justice

More information / register >

Records managers will be taking a new look at “Create dates” after the Arizona Supreme Court mandated production of metadata in public records.

The case involved a demoted police officer who wanted access to the metadata to prove notes were backdated.  Up until now, most cases have held that there must be a showing that metadata is necessary before ordering its production.  While this case may be applied narrowly for Arizona public records, it may impact other governmental entities and courts.

“It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in

continue…

Wed. 12/16 – As of Sept. 2009, twenty five states have adopted e-discovery procedural rules that reflect the 2006 FRCP amendments. Many others are considering changes. In this 3rd annual webcast, Tom Allman and Mary Mack provide an update.  More info / Register >

The money quote: “BNSF, through its spokesperson, Suann Lundsberg, told Minnesota Lawyer that there was an issue six years ago regarding evidence preservation and acknowledged that BNSF could have done a more thorough job of documenting that the gates and lights were properly activated.”

This fascinating story, from Minnesota Lawyer, of sanctions and fully complying with discovery is a good read. Continue reading….

By Fernando M. Pinguelo and Andrew K. Taylor

Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer. Recently, an appellate court reversed that ruling and framed the issue as “whether workplace regulations converted an employee’s emails with her attorney ” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”

Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that thecontinue…