Discovery Resources

The new decade has begun with conflicting and complementary opinions from Judge Rosenthal of Texas and Judge Scheindlin of New York. These opinions, penned by United States District Court judges, will frame the behavior and motion practice around federal e-discovery sanctions into the near future.

Before the ink was dry on Judge Scheindlin’s groundbreaking “no written legal hold = gross negligence” opinion in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), subtitled “Zubulake Revisited: Six Years Later,” Judge Rosenthal, in Rimkus v. Cammarata, 07-cv-00405 (S.D. Tex. Feb. 19, 2010) drew careful lines continue…

The 2010 Spring Meeting of the ABA International Law Committee will be held April 13-17 at the Grand Hyatt New York.

The meeting will feature the exhibition, “Lawyers Without Rights,” created by the German Federal Bar and made available for the first time in the United States. The exhibit features detailed and poignant accounts of the lives and fates of Jewish lawyers throughout Germany who suffered at the hands of the Nazi regime.

On April 14, the “Managing Partner Summit” will bring together leaders from 20 law firms from around the world to discuss shifting paradigms in the legal profession caused by the global economic crisis.

On April 16, experts from academia, and continue…

Government regulators lose sleep, too. This was the message delivered by Leonard Gordon, director of the Federal Trade Commission’s Northeast Region during a spirited panel discussion that also featured David Keyko, litigation partner and regulatory expert from Pillsbury Winthrop; Josh Weiss, special counsel from Cadwalader, Wickersham & Taft; Fios’ Director of Strategic Account Relationships, Dennis Kiker; and me, Mary Mack, as moderator.

The panel discussion took place at an invitation-only lunch hosted by Fios during Legal Tech New York, and focused on helping outside counsel prepare for an anticipated increase in e-discovery and regulatory actions in 2010.

Gordon was the recipient of most questions, as the attendees tried to understand where the continue…

In 2000, after the Y2K scare passed and computers did not crash – although telecom and IT did – Fios started to define electronic evidence with the small group of lawyers, technologists and government people (yes, Ken Withers, that is you). There were four major companies in the electronic evidence space, including Fios.

Technology

Dial-up was still the norm for Internet connections, with T1 lines for corporations. Not everybody had BlackBerrys. Forensics was still done in DOS, mostly by ex-law enforcement. All but a few attorneys ignored electronic evidence and agreed not to produce it, or produced it by printing it out and hand-stamping a BATES number on it. Most electronic discovery was continue…

In keeping with tradition, here are my (Mary Mack’s) top 10 predictions for the e-discovery market in 2010:

1. There will be increased adoption of early case assessment. Early case assessment will include early evidence assessment focused on risk, budget and other factors.
2. The majority of service providers will embrace the ACC Value Challenge from the unit price perspective and cause issues on the service side (otherwise known as the race to the bottom).
3. Certification will start to be a prerequisite for an entry-level job in e-discovery services.
4. Data reduction validation affidavits will move toward the mainstream.
5. Cloud computing will be embraced without concern for jurisdiction and nexus issues, leading to surprises in taxation, intellectual property, privacy, continue…

In December 2008, I was asked to develop a list of predictions regarding the e-discovery market in 2009. I was spot-on for 14 of 20 predictions, even including the silly ones. That is a 70% hit rate. Not bad….considering the year is not over.

Following were my predictions and what actually happened this past year:

1. White collar defendants will be sunk by criminal e-discovery evidence rules created by case law involving drug dealers and child pornographers. Although the first high-profile trial resulted in acquittal (Bear Sterns), the FBI conducted dawn raids and sweeps related to subprime lending, insider trading and other fraud. +1
2. The financial crisis will increase the volume of e-discovery in continue…

The tipping point for the ACC Value Challenge has passed. The majority of attendees at the Boston ACC meeting were buzzing about the Value Index (where clients rate law firms), cost control and predictability.

There was a rumbling anger beneath the usually calm demeanors of the employed counsel. This article will discuss the Value Challenge and Index as defined by ACC members. It will also give you a flavor of the divide between law firms and clients, with suggestions for what that divide means for those of us who are stewarding the electronic discovery process.

The ACC Value Challenge

Last year, the ACC released the ACC Value Challenge:

According to a recent issue continue…

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 an electronic document, such as continue…

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 determine with continue…

The Federal Rules of Civil Procedure are changing December 1, 2009.  Heads up to ediscovery teams to readjust calendars.  The changes give extra time and take time away.

The most significant changes are to Rule 6. Currently under Rule 6, intermediate weekends and holidays for some short time periods are excluded when counting deadlines…

The new Rule 6 adopts the “days-are-days” approach. When calculating a deadline, every day is counted, including intermediate weekends and holidays, for all time periods.

Docketing professionals will be quite busy figuring out the gift of time.

Other drastic changes to the FRCP are the new time periods in Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, continue…