Discovery Resources

Ashcroft v. Iqbal, 556 U.S. ____ (2009) was a case in which the United States Supreme Court held that top government officials were not liable for the actions of their subordinates absent evidence that they ordered the allegedly discriminatory activity. The Supreme Court held that conclusionary facts, without more evidence, were insufficient to defend against a motion to dismiss. Iqbal sought to sue government officials for purposeful and unlawful discrimination. Then Attorney General John Ashcroft and other government officials, while responding to 9/11, had put forth programs to investigate and detain persons of Arab descent.

The Court made very clear that the holding of Twombly, once thought to be narrowly applied in continue…

The stewards of many of the leading law firms’ litigation support practices converged on Washington, D.C. for two days of no-holds-barred conversations, conviviality and convocation at the International Litigation Support Leaders Conference.

George Socha, e-discovery pioneer and initiator of analysis and standards, received a resounding standing ovation from the leaders gathered at the 2^nd Annual Betsy Ann Reynolds Awards for Excellence in Litigation Support. In his acceptance of the “Industry wide” award for helping the litigation support community explain to attorneys just how e-discovery works, George gave a moving speech about his purpose and intent in the work he does. A former lead paint litigator, George views his mission as reducing costs continue…

Charles Schumer will be introducing a “Shareholders Bill of Rights” that will, among other more widely known initiatives, require that corporate Boards of Directors must have a Risk Management Committee as they now have an Audit Committee.

Buried in the bill requiring “Say on pay” for executives and other shareholder rights is a provision that will elevate the role of the risk management professionals I am meeting at the Gartner Summit on Risk Management and Compliance this week.

Gartner may need to put “Governance” back as a headliner in their GRC practice.

Impact for Ediscovery:  More pressure to quantify and make costs predictable as they will be more visible at the Board level, less tolerance continue…

Total Revamp of Federal Rules of Civil Procedure?
By Mary Mack, Esq., Corporate Technology Counsel, Fios Inc.

The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System released a report in March calling for radical change in the Federal Rules of Civil Procedure (FRCP) that may, according to the ACTL website, “one day underpin the transformation of civil procedure in federal and state systems throughout the United States.”

This report was created through the collaboration of seasoned (average of 38 years of experience) peer-selected trial lawyers from both sides of the bar and a well-funded, politically savvy legal institute. The report has gained wide continue…

Magistrate Judge Andrew Peck, of the groundbreaking decision in  Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D. N.Y. 1995), issued a cautionary opinion for non parties in the Southern District of New York.  Stating that the non party had not been helpful in framing search terms (read–reducing their own costs), Judge Peck split the difference between the actual parties’ requests and added some more in this required reading for  SDNY litigants.  He also left the door open to further searches after the non party deposition.

Not content with reacting, Judge Peck suggested that cooperation and participation is key to cost reduction and gave us all a big hint about resurrecting continue…

Reuters reports that the SEC is back in the saddle probing feeder funds, the subprime lenders, hedge funds, builders and the underwriters, individuals and principals involved.

I spoke with the SEC a few weeks ago regarding the SEC Enforcement manual.  My concern was that it might be considered “last administration” and that new ediscovery protocols would be issued.  While maintaining that the Manual was a work in progress, the guidance provided in it is still good according to the very helpful public affairs officer.

Link to Enforcement manual here.  See Section 3.2.6.2 regarding form of production for electronically stored information.

I will be speaking at the ABA International Spring meeting in DC on Friday continue…

Interesting dialogue floating from my colleagues at Fios that I thought I’d share:

Allen Gurney (Director, Fios Consulting):

Some of you may have seen/heard this already –

“February 11, 2009: After more than two years of debate and deliberation, the Federal Court regime for eDiscovery in Australia has been finalised.”
http://www.idm.net.au/story.asp?id=16583

Excerpt –

“Practice Note 17 has been released on the Federal Court Web site. The Practice Note provides a platform for the use of technology in the management of discovery and the conduct of litigation. The document sets out a checklist for both parties in a federal court case to undertake before the process of discovery, and provides a basic document management protocol for matters continue…

LegalTech NY was different this year. Considered the Comdex or Consumer Electronics Show of the electronic discovery industry, LegalTech NY had declining attendance for the first time. There were fewer booths, and while the crush of attendees on the first floor still jangled the nerves, the upper floors were languid. Technical reporters were wondering where all the new products were.

Conversations in elevators, the polite kind like, “How are you finding the show?” elicited comments like “At least we’re financially sound” from total strangers. Craig Ball’s article in Law Technology News hit the mark.

It‘s not only the e-discovery community that is in turmoil. The legal community itself is at an “inflection point.” continue…

See you all at LegalTech–real or virtual.

Dinner with Craig, who has announced the spectacular “Absolutely Nothing” platform, on Sunday.  

While a high bar to overcome, we at Fios are certain our offerings will best Craig’s–although I bet Craig gets much more press.

I will be negotiating my best price on Absolutely Nothing, probably sweetened with an Absolut Something or Other.

Craig, never shying away from controversy, has set the industry abuzz about the financial viability of providers, law firms and clients in the economic crisis.  So much so, that I almost packed up our CFO, “Payless” Hesse, and sent him Fed Ex to the Hilton booth.

Seriously, financial viability is critical in this environment.  Normal continue…