discovery rules

Will New Electronic Discovery Rules Save Organizations Millions or Deny Justice? – Forbes

November 8, 2011 By Global EDD Group Leave a Comment

Special Post by Matthew Nelson, Esq.

Lawyers and federal judges are currently discussing a formal proposal to amend the Federal Rules of Civil Procedure (“Rules”) that could save some organizations millions of dollars. The Rules are significant because they dictate the procedures every party in federal civil court must follow when negotiating the exchange, or discovery, of documents and other information as part of a lawsuit. Sometimes Rule changes simply include minor modifications to add clarity. Other times, Rule changes like those being considered at this week’s Federal Rules Advisory Committee (“Advisory Committee”) meeting on November 7 and 8 in Washington, D.C., are potentially game changing.

A recent jury verdict for almost $1 billion following a court-ordered eDiscovery sanction, combined with a steady overall increase in eDiscovery related sanctions since last year, have helped fuel enterprise concerns about the cost of data preservation. See E.I. Dupont De Nemours and Company v. Kolon Industries, Inc., (E.D. Va. Jul. 21, 2011); and Gibson Dunn, “2011 Mid Year E-Discovery Update” (July 2011) (eDiscovery related sanctions nearly doubled between July 2010 and 2011). As a result of these concerns, many large organizations with massive amounts of electronically stored information (“ESI”), are calling for Rule changes. They are looking to curb the cost of identifying and preserving potentially relevant ESI that could help them avoid paying attorneys millions of dollars to sift through mounds of emails and other electronic files to find the right documents for each new case. These large enterprise litigants claim the lack of clarity in the current Rules unfairly requires organizations to err on the side of preserving evidence early and broadly or face the risk of stiff court sanctions if information that may have been relevant to a case is lost or deleted. They see the problem as a double-edged sword because in many cases, the more ESI preserved, the higher the costs of eDiscovery. On the other hand, failure to preserve enough ESI increases their risk of sanctions.

continued @ Will New Electronic Discovery Rules Save Organizations Millions or Deny Justice? – Forbes.

Filed Under: From The News Tagged With: Court, court sanctions, discovery rules, dupont de nemours, e i dupont de nemours, ediscovery, Electronic, information, kolon industries inc, Organizations

Current Listing of States That Have Enacted E-Discovery Rules : Electronic Discovery Law

October 19, 2011 By Global EDD Group Leave a Comment

More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions.

complete list: Current Listing of States That Have Enacted E-Discovery Rules : Electronic Discovery Law.

Filed Under: From The News Tagged With: complete list, Court, discovery law, discovery rules, Electronic, electronic discovery, Enacted, information, Listing, relevant provisions

The E-Discovery Implications of the News of the World Phone Hacking Scandal | Exterro

July 21, 2011 By Global EDD Group Leave a Comment

As reported in the UK’s Guardian Newspaper, the unnamed executive is alleged to have deleted files from an internal archive containing about 500 GB of data. The archive contained email correspondence between News of the World editors, reporters, and private investigators dating back to 2005.

The e-discovery implications of this scandal are twofold. For starters, the alleged deletions come amidst an active police investigation. Should police identify the executive – and any accomplices – and obtain the necessary evidence there is a high likelihood that criminal charges will be filed for obstruction of justice. Secondly, News Corp – the owner of News of the World – is bracing for a swarm of civil lawsuits filed by phone hacking victims and evidence related to those cases was likely deleted.

It is important to note that the e-discovery rules differ somewhat between the U.K. and the U.S. (incidentally, discovery is referred to as “disclosure” across the pond). Generally, e-discovery requirements are far more stringent in U.S. courts than in the U.K., and rulings of evidence spoliation are far more common. Moreover, the repercussions for evidence spoliation are considered far harsher in the U.S. (see the 2010 Victor Stanley case where Judge Grimm deemed the evidence spoliation so sweeping and egregious he recommended jail time). However, there have been cases in the U.K., notably Rybak & Others v. Langbar International Ltd (good analysis here), when deliberate evidence spoliation has resulted in severe consequences.

The bottom line, while there may be differences in discovery rules between the U.S. and U.K., punishment awaits those in either country who deliberately delete electronic evidence that could be responsive in litigation. In other words, News Corp’s attorneys will likely have a lot of explaining to do in court.

via The E-Discovery Implications of the News of the World Phone Hacking Scandal | eDiscovery, E-Discovery, Electronic Discovery Beat Blog | Exterro.

Filed Under: Tech Bytes Tagged With: civil lawsuits, discovery requirements, discovery rules, evidence, Hacking, Implications, news, phone, private investigators, world editors

PODCAST: Global E-discovery Rules and Challenges | Legal Talk Network

May 26, 2011 By Global EDD Group Leave a Comment

Interested in e-discovery rules across the globe? On this May edition of The ESI Report, host Kelly Kubacki, Staff Attorney in the Legal Technologies division at Kroll Ontrack welcomes Mark Surguy, Partner with Eversheds International and Tracey Stretton, Legal Consultant at Kroll Ontrack U.K., to explore electronic discovery rules, procedures and important developments from around the world. In the Bits & Bytes Legal Analysis segment, Ben Kirk, Kroll Ontrack Legal Correspondent, takes a look at In re Facebook PPC Advertising Litigation.

via Global E-discovery Rules and Challenges | Legal Talk Network.

Filed Under: From The News Tagged With: discovery rules, electronic discovery, kroll ontrack, legal consultant, legal correspondent

Connecticut Law Tribune: E-Discovery: Wisdom Or Worry: State Courts Lack E-Discovery Rules

February 8, 2011 By Global EDD Group Leave a Comment

Unlike most other states, Connecticut does not have e-discovery rules similar to the federal rule amendments adopted in 2006. Is this a cause for concern? No. The costs of e-discovery are simply too high to justify anything but a careful and thoughtful approach to adopting rules that potentially could change the playing field for parties and lawyers alike.

The risks of adopting e-discovery rules without a thorough analysis are obvious: e-discovery expenses should not be the gatekeeper that determines which litigants have a day in court. For example, certain parties and law firms may be deterred from bringing contingency fee cases involving terabytes of electronically stored information (ESI) because they lack the financial resources to bear the expense of collecting, processing, reviewing, and producing ESI in the absence of cost-shifting.

Even without specific e-discovery rules, Connecticut state courts have been applying existing statutes, rules, and causes of action to address e-discovery issues. Yet, the relatively low number of cases involving e-discovery issues, which are published or available on electronic databases, raises significant questions.

via Connecticut Law Tribune: E-Discovery: Wisdom Or Worry: State Courts Lack E-Discovery Rules.

Filed Under: From The News Tagged With: analysis, cause, concern, connecticut law tribune, contingency fee cases, discovery rules, electronic databases, gatekeeper, rule amendments, wisdom

U.S. Court Holds Litigant In Non-U.S. Suit Subject to American Discovery Rules | K&L Gates

February 5, 2011 By Global EDD Group Leave a Comment

On January 24, 2011, the United States Court of Appeals for the Seventh Circuit issued a decision broadly interpreting a federal statute affording parties in non-U.S. litigation access to American-style discovery. Heraeus Kulzer, GmbH v. Biomet, Inc., Nos. 09-2858, 10-2639 (7th Cir. January 24, 2011). The federal Court held that a party in a lawsuit pending in Germany could be subjected to American discovery rules – which it acknowledged are “far broader than in most (maybe all) foreign countries” – even though the Court assumed that the discovery sought would not be allowed by the German court in which the case was pending. Although the Court recognized that the discovery requests might be excessive and that a “discovery demand in our courts might yield a haul of 30 million emails, few of which would be admissible in evidence [in Germany],” it held that where the requirements of the federal statute are met, a litigant in a non-U.S. dispute is entitled to obtain discovery in accordance with the Federal Rules of Civil Procedure absent a showing that the discovery is sought for an abusive motive, or would have an abusive effect.

The case presented the Seventh Circuit with the issue of whether the plaintiff (a German company) in a theft of trade secrets case pending in Germany could employ American law to require the defendant, Biomet, Inc. (an international company with offices in the U.S.), to produce documents for use in the foreign proceeding. To obtain the documents, Heraeus relied upon a federal statute, 28 U.S.C. § 1782, which authorizes the federal court in “the district in which a person resides or is found” to “order” discovery of documents and other things from such person or entity for use in proceedings before foreign tribunals.

via K&L Gates : Newsstand : U.S. Court Holds Litigant In Non-U.S. Suit Subject to American Discovery Rules.

Filed Under: From The News Tagged With: american discovery, Biomet, biomet inc, Circuit, discovery requests, discovery rules, Heraeus, litigant, Statute, united states court

The Thin Line Between Electronic Discovery and Hacking | Catalyst E-Discovery Blog

December 25, 2010 By Global EDD Group 1 Comment

Is it ever appropriate to tap into someone else’s computer network in order to preserve documents for litigation?

An interesting decision from the 3rd U.S. Circuit Court of Appeals addresses this question, deciding whether a plaintiff’s attempt to preserve digital documents during litigation was appropriate under federal discovery rules or unlawful under state and federal computer anti-hacking statutes. In the Dec. 13 opinion, Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., the court introduces the issue this way:

“This appeal involves an overlap between substantive claims under state and federal anti-hacking laws and alleged electronic discovery misconduct.”

The facts are somewhat involved, but I’ll give you the bullet-point version of what happened, as recounted in the court’s opinion:

In February 2005, two wastewater-treatment companies, Biothane Corporation and RCM Digesters Inc., formed a joint venture, RCM Biothane.

In June 2005, the computer networks of Biothane’s parent company, Joseph Oat Holdings Inc., and the joint venture, RCM Biothane, were connected via a virtual private network. Biothane employees in New Jersey administered the VPN and controlled the RCM Biothane server located in Oakland, Calif.

In August 2006, the parties entered into a separation agreement purporting to end the joint venture. Evidence indicated that RCM continued to operate RCM Biothane after that date.

In September 2006, Biothane sued RCM for trademark infringement, unfair competition, breach of contract, and various other counts.

On Oct. 11, 2006, RCM’s attorney sent Biothane a litigation hold letter. On Oct. 20, he sent a second letter reiterating his request that Biothane preserve all electronic data.

Around the same time that Biothane received the litigation hold letter, it began to systematically copy the files from the joint venture’s server, to which it still had access. Internal memos referred to this as the “information copy project” and instructed employees to do this “under the rader.” A Biothane V.P. later testified that he ordered the copying in response to RCM’s litigation-hold letter and believed he had a responsibility to preserve these files.

When it discovered the copying, RCM, claiming the servers had reverted to its control, filed a motion to amend its counterclaim to add counts alleging violations of California, New Jersey and U.S. anti-hacking laws. RCM also filed a motion asking for discovery sanctions against Biothane for its copying of the files.

Ruling on the request for sanctions, a U.S. magistrate judge found that Biothane’s copying of the documents was “willful” but not in “flagrant bad faith.” He concluded that Biothane “accessed defendants’ computer to preserve business documents, not for the purpose of gaining an advantage in this litigation.” Finding that Biothane could have believed it was justified in accessing the documents, the magistrate judge imposed a fairly modest sanction of paying RCM’s costs, but not attorneys’ fees, incurred in discovery directed to finding out what documents were taken from RCM’s computer system.

via The Thin Line Between Electronic Discovery and Hacking | Catalyst E-Discovery Blog.

Filed Under: Tech Bytes Tagged With: Catalyst, computer, digesters inc, discovery rules, Electronic, electronic discovery, Hacking, internal memos, LETTER, rcm digesters

Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive? by Kristen Knapp | SSRN

August 21, 2010 By Global EDD Group Leave a Comment

Although the U.S. Supreme Court first considered the conflict between U.S. discovery rules and foreign non-disclosure law in 1958, a clear standard regarding how to enforce U.S. law against foreign domiciled companies has yet to emerge. As a result of the 2006 ammendments to the U.S. Federal Rules of Civil Procedure concerning electronic discovery (“e-discovery”) procedures “[m]ore and more companies with global operations are finding themselves enmeshed in e-discovery that requires a greater understanding of the issues and laws from a global perspective” because “[i]t is challenging to navigate and manage e-discovery when you have parent companies based overseas or U.S.-based companies with foreign subsidiaries.”

This paper looks at, in light of the 2006 amendments and the lack of case law regarding the affect of the 2006 amendments, whether the enforcement techniques, as applied to “paper” discovery should be applied to e-discovery and whether there is anything specific to the nature of e-discovery that necessitates a change in the application of the law. Specifically, the paper addresses how the European data privacy regime may affect the application of paper discovery enforcement techniques to e-discovery. The paper suggests that it would be unwise for U.S. courts to afford the European Data Privacy regime significant deference. Instead, the European Data Privacy regime should be treated with skepticism, similarly to how the U.S. courts have viewed “blocking statutes” contained in foreign law. In particular, treating the EU Data Privacy regime with skepticism will help to prevent the creation of perverse incentives for companies to store their data abroad that hope to avoid legitimate discovery production requests under the Federal Rules of Civil Procedure, by raising the transaction costs for such behavior.

via SSRN-Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive? by Kristen Knapp.

Filed Under: From The News Tagged With: application, Civil, discovery law, discovery procedures, discovery rules, Electronic, electronic discovery, enforcement, paper, perverse incentives

Piloting E-Discovery Rules in the 7th Circuit | Law.com

July 26, 2010 By Global EDD Group Leave a Comment

Magistrate Judge Nan Nolan of the U.S. District Court for the Northern District of Illinois had a long background as a criminal defense attorney before becoming a judge. She says that her background left her unprepared for the battles over discovery of electronic evidence she has encountered in the world of civil litigation. “I was not able to get my arms around all of the fighting over discovery,” she says. “I know that some people have snickered about this idea that you can get lawyers to make nice and cooperate on discovery. But I believe it is possible.”

Under the leadership of Chief Judge James F. Holderman, Nolan has helped launch a pilot program to address electronic discovery issues: 7th Circuit E-Discovery Pilot Program. Taking their cues from, among other sources, the Sedona Conference Cooperation Proclamation, the 7th Circuit E-Discovery Committee is attempting to fix some of the most intractable discovery problems in litigation.

via Law.com – Piloting E-Discovery Rules in the 7th Circuit.

Filed Under: From The News Tagged With: Circuit, civil litigation, com, criminal defense attorney, Defense, discovery rules, electronic discovery, magistrate, magistrate judge, pilot

Litigation Alert: Recent E-Discovery Decision Impacts All Companies, Including Hedge Funds | FINalternatives

June 13, 2010 By Global EDD Group Leave a Comment

Judge Scheindlin’s Latest Ruling

E-discovery rules first coalesced during 2003 and 2004 in a series of rulings by Judge Scheindlin known as the Zubulake decisions (named after Laura Zubulake, a plaintiff in a gender-discrimination case). Judge Scheindlin’s newest decision, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, No. 05 Civ. 9016, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), significantly alters the ground rules for preserving and storing electronically stored information relevant to an anticipated federal lawsuit.

In Montreal Pension Plan, aggrieved investors sued for $550 million after two British Virgin Island-based hedge funds in which they purchased shares entered receivership and were subsequently liquidated. Several defendants discovered gaps in the plaintiffs’ document production, and upon that discovery seized the opportunity to go on the offensive against their accusers. Depositions were taken as to plaintiffs’ information-retention efforts, sworn statements as to information preservation were procured, yet the court imposed sanctions even though intentional wrongdoing was absent. The court, specifically noting that this was not a case of “egregious examples of … destroying evidence,” sternly warned that companies must preserve, collect, and review potentially-relevant information in a meaningfully-diligent way whenever litigation reasonably is anticipated.

Hindsight Reigns Supreme – Anything Lost, Even Innocently, May Result in Sanctions

What makes Judge Scheindlin’s decision relevant is that you now have an obligation to preserve electronic information as soon as litigation reasonably is anticipated, meaning that your preservation obligations can be triggered before the lawsuit is even started. The court’s decision makes clear that your best efforts may not satisfy the court and that lost or destroyed information potentially relevant to a litigation could result in a finding of negligence. Even unintentional negligence can result in a material sanction against your company. To paraphrase the court, “a pure heart and an empty head” is no defense.

via Litigation Alert: Recent E-Discovery Decision Impacts All Companies, Including Hedge Funds | FINalternatives.

Filed Under: From The News Tagged With: british virgin island, Court, Decision, discovery rules, discrimination case, information, intentional wrongdoing, Judge Scheindlin, lawsuit, Pension