Plan Ahead: Proposed Amendments to Rule 26 Would Extend Work-Product Protection : Electronic Discovery Law

One of the great things about the current rule-making process is the ability to see change on the horizon and adapt accordingly.  This year, absent any unforeseen objection or delay, Rule 26 will be amended to extend the scope of the work-product doctrine to encompass draft expert reports and most communications between experts and counsel.  Currently, the proposed amendment (and all proposed rule amendments, for that matter) is being considered by the Supreme Court.  Pursuant to statute, the Court must transmit prescribed amendments to Congress by May 1st.  Thereafter, absent legislation to reject, modify, or defer the rules, the prescribed amendments will take effect as a matter of law on December 1st.

The proposed amendment to Rule 26 would “apply work-product protection to the discovery of draft reports by testifying expert witnesses, and, with three important exceptions, communications between those witnesses and retaining counsel.”  The exceptions would allow for discovery of communications between the lawyer and expert regarding:  “(1) compensation for the expert’s study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming opinion; and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.”

via Plan Ahead: Proposed Amendments to Rule 26 Would Extend Work-Product Protection : Electronic Discovery Law.

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More Privilege Issues With Employee E-Mail

This article will explore the implications of the troubling privilege issues that confronted a lawyer in Brooklyn when he found that he owed conflicting duties to two clients in unrelated matters in connection with the same item of privileged information. Following that discussion, the article will return to the topic addressed recently in this column, namely whether or not the attorney-client privilege is lost when clients use their employers' technology to send e-mails to their lawyers. Two more cases have addressed the same issue in recent weeks, raising the question whether a consistent set of principles can be applied when these issues arise.

via More Privilege Issues With Employee E-Mail.

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The top 50 litigation practices

One of the key findings from The Lawyer’s annual round-up of the top 50 global disputes practices is that international arbitration is one of the main battlegrounds for the world’s top litigation teams.

What is also clear is that London is at the centre of the action, a fact that has not gone unnoticed by the top international firms.

“London certainly has to be a place where you increase resources,” argues Gibson Dunn & Crutcher partner Larry Shore. “The way we look at the world, there’s certainly significant growth in international arbitration in London and New York, with arguably some levelling off in Paris.”

Shore’s perception is backed up by statistics from the ICC International Court of Arbitration, which shows London is gradually closing in on the French capital as the world’s favourite city for arbitration (see below).

Globally, however, there is much more than just arbitration keeping firms busy. This year’s top 50 litigation practices, based on the proportion of firms’ 2008 revenue derived from disputes, reflects increasing levels of activity across a wide range of areas.

The list is inevitably dominated by US firms. Strategically and historically litigation is not as important to UK firms, a fact underlined by the presence of only five UK-headquartered firms in the list.

That said, the current performance of some UK firms with strong countercyclical practices (think Stephenson Harwood, where revenue was up 8 per cent at the half year) might encourage firms on this side of the Atlantic to invest a little more in building disputes teams.

[continued] Focus: Fight Club: The top 50 litigation practices | Features | The Lawyer.

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