Discovery Resources

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 >

California Lawyer this month has a interesting article by Perry L. Segal, an IT executive turned e-discovery attorney and consultant. “Remember the old adage “An ounce of prevention is worth a pound of cure”? In the e-discovery universe, you’ll need several pounds. The California Electronic Discovery Act has been in place for about three months, and I’ve been fielding a lot of inquiries. The number one question is: “How much is all this going to cost?”

Answer: How much do you have?”

Continue reading…

Contrary to popular belief, the new California rules for ediscovery do not mandate a protective order when dealing with not reasonably accessible data.  The rules are similar to the Federal Rules of Civil Procedure in that the not reasonably accessible data needs to be identified, and then the burden shifts to the other side to press further.  The earlier draft, vetoed by the governor last year, did not have this provision.  This change will save California businesses millions in motion fees and courts substantial time in hearing them.

Some practitioners with experience crafted the provision.  Categories and sources can be identified, removing the potential requirement of indexing tapes to determinecontinue…

As of September 2009, twenty-three states have adopted statewide ediscovery 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.

Mr. Allman analyzes the continuing evolution of ediscovery at the state level here.

Tip of the hat to David Bowerman and the fine bloggers at K&L Gates…..

Not every judge has the experiences of Magistrate Judges Facciola, Waxse, Grimm or Peck when it comes to electronically stored information.  Some District Court judges are just now issuing their first ESI opinions, over 2.5 years since the December 2006 Amendments. And for those who have not followed the news, California state judges will now be facing these issues since California enacted its own Civil Discovery Act addressing e-Discovery. Continue reading….

Tip of the hat to Bowtie Law Blogger Joshua Gilliland, Esq.

On June 29, 2009, Governor Arnold Schwarzenegger signed California’s Electronic Discovery Act into law.  Because the Act contains an urgency provision, it is effective as of June 29, 2009.

Here’s the Electronic Discovery Act in its entirety.

…. Tip of the hat to Michael J. Eng at the Electronic Discovery Navigator

By Fernando M. Pinguelo and Andrew K. Taylor

From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message wascontinue…

” California’s deviation from the federal rules with respect to the burden of the responding party in producing purportedly inaccessible information indicates California’s recognition that Zubulake is outdated due to technological advancements.” Continue reading….

New regulations on storing personal data have businesses up in arms — and not just in Massachusetts. But the state keeps delaying its compliance deadline.

This article from ComputerWorld Magazine takes a look at the issues facing Massachusetts officials who gave companies a second reprieve on complying with new regulations aimed at any entity that stores the personal data of state residents.  Continue reading

Under the Federal Rules of Civil Procedure (and in an increasing number of state courts), litigants must meet early in a dispute – generally within the first 60-90 days of a case—to discuss the scope of discovery and to hopefully reach agreement on how best to proceed with the discovery of potentially relevant electronically stored information (“ESI”). Results of this meet and confer session are formalized in a court order following a Scheduling Conference. What happens, though, when fundamental assumptions used to reach agreement at that early stage in the case turn out to be incorrect? Continue reading