Discovery Resources

Proportionality in the Federal Rules of Civil Procedure is quite clear and lucid:

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the

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I am emotionally distressed over being wrong, very wrong last month when I suggested that Eric Meyer had stepped over the proportionality line in my blog post on Social Media, Permanent Records and Ediscovery.  (Register here for the Fios webcast Social Media, Permanent Records and Ediscovery, taking Social Media through the EDRM.)

Eric Meyer has written a comprehensive article on how to obtain social media evidence for The Legal Intelligencer. He goes a little far afield in the age of proportionality to suggest:

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation,

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Our (Fios‘) webcast on Social Media, Permanent Records and eDiscovery is on September 1.  Register here.

I thought I might be a bit hyperbolic with the title.  Tonight I read a report by Portland’s own Marshall Kirkpatrick on ReadWriteWeb that Google CEO Eric Schmidt recommends that when teens come of age, they have an opportunity to change their names to shed the online identity they have created.

From ReadWriteWeb:

This weekend The Wall St. Journal ran an interview with Schmidt that offered tidbits like that on a wide range of topics. One statement in particular, that

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Ralph Losey, Brett Anders and I had a lively discussion about four key cases addressing the need to understand the client’s computer system, to cooperate, and to be aware with technologies on the envelope of ediscovery practice like text messaging, databases and social media.

Ralph and Brett practice workplace law, a superset of employment law.  They are often on the cutting edge of electronic discovery.  Employees are people, and people are stretching the limits of technology in the ways they are communicating, collaborating and connecting.

Many thanks to Ralph and Brett for the encore.

Ralph’s media

Ralph just published a new book,

James Holderman, Chief Judge of the Northern District of Illinois, has been removed from a case tried by US Attorney Patrick Fitzgerald.

This will be a case to watch, as the Judge is a leading advocate for cooperation between opposing counsel.  He commissioned the 7th circuit pilot project which has had extraordinary results.

In an interview with Al Driver at Metropolitan Corporate Counsel, the Judge said:

We are hoping to convince lawyers that cooperation in seeking the truth is consistent with the concept of zealous advocacy in furthering a client’s interest. There has to be a sea change in the approach to discovery. Principle

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By Mary Mack, Corporate Technology Counsel, Fios.

Social media is emerging as a cottage industry for electronic evidence.  It is now playfully referred to as an electronic “permanent record” in this era of Wikileaks.

“It just makes for a beautiful exhibit, and there’s no longer any question about what was said,” says Cassandra Ferrannini, an employment law attorney with the Sacramento law firm Downey Brand. Conversations are displayed complete with date and timestamps.  Some conversational snippets show up in context, others out of context.

Labor and employment attorneys are aggressively using Facebook and other social media outlets.  All areas of litigation and investigation are usingcontinue…

Dan Winslow and the International Institute for Conflict Prevention and Resolution just released the model language to reduce the costs of civil litigation at the beginning of a business arrangement.

Rather than call it a Litigation PreNup, the designation is now Economical Litigation Agreement.

After I discussed the Litigation PreNup with Al Driver at Metropolitan Corporate Counsel, many have asked where to get a sample. Here is a link to Dan talking with Al about the promise of the PreNup.

Get your Economical Litigation Agreement or Litigation PreNup here.

by Mary Mack, Corporate Technology Counsel, Fios

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…

Quon – Text Messages at Work

By Mary Mack, Esq., Corporate Technology Counsel, Fios, Inc.

I have no doubt Ralph Losey will take issue with my assessment of the recent Quon case. He and I, along with Brett Anders, will include Quon in a lively Case Law Update. Register here.

The Supreme Court pleasantly surprised worried employers in Quon  (City of Ontario, California, et al. v Quon et al., —S. Ct. —-, 2101 WL 2400087 [June 17, 2010]).The outcome of the case was as favorable to employers as it could possibly be. Even though the employer in thecontinue…

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…