Search Results for: "proportionality"

International Ediscovery: Best Practices Around the World

International Ediscovery

Over six thousand athletes from eighty-five countries have gathered to compete. When you sit down to watch the events, remember that behind every flag is a unique legal system, with diverse privacy laws and ediscovery rubrics. As these laws become increasingly intertwined, legal professionals – like athletes – must constantly push themselves to manage international ediscovery in the digital age.

United States

A central theme in American discovery is that the search for truth in litigation outweighs individual privacy concerns, with the exception of personally identifiable information. The 2006 amendments to the Federal Rules of Civil Procedure are the heart of ediscovery, namely Federal Rules 26 and 34 which define electronically stored information (ESI) as a discoverable source of information. There are new proposed amendments to Rules 26 and 37 on the ediscovery horizon in 2014.

Guided by few appellate decisions, US district courts and magistrate judges are the architects behind an expansive body of ediscovery case law. Proportionality (barring unduly burdensome ESI production and preservation) and cooperation (mandating party-to-party ESI discourse early) are defining facets of American ediscovery. In 2013, courts have expressed unrivalled legal-technological proficiency by tackling several complex ediscovery issues: taxation of ediscovery costs,1 the role of wilfulness in the duty to preserve,2 and marrying smart technology with document processing and review.3

England and Wales

The shifting tides of ediscovery impact both sides of the Atlantic. In the UK, Civil Procedure Rule 31 governs disclosure. Its counterpart, Practice Direction 31B, is the primary source for coping with issues like the preservation of ESI, defining a “reasonable search,” and assessing the level of party communication required before the case management conference.

The UK takes a fundamentally different approach to discovery than the US. While US courts seek to produce all relevant documents to a case, CPR 31.5(7) limits disclosure in the UK “to that which is necessary to deal with the case justly.” Courts in England and Wales now have a “menu” of options for disclosure, which range from no disclosure to full blown train of enquiry disclosure with issues-based disclosure and reliance-based disclosure somewhere in between.

The European Union

The EU Data Protection Directive 95/46/EC (“the Directive”) mandates signatory countries to implement laws restricting the processing of “personal data”—information “relating to an identified or identifiable” person. Moreover, the Directive bars the transfer of personal data to non-EU states unless the country provides for “adequate protection” of personal data and marks a significant detour from the American approach to data protection.4

In 2012, the European Commission proposed a comprehensive reform to the Directive to protect “the fundamental right of data protection and to guarantee the free flow of personal data between Member States.”5 Set to take effect in 2015, the new data protection regime bolsters the rights of data subjects, imposes heightened obligations on organizations and strengthens enforcement measures. This rubric, combined with many civil law systems, provides for minimal discovery of ESI in EU litigation. Coupled with several countries adopting blocking statutes to prevent the transfer of personal data across borders, these new protection laws also create tension with the US Federal Rules of Civil Procedure, which seek to produce all relevant electronic records.


Throughout the Canadian provinces, the 2008 Sedona Conference® Publication, The Sedona Canada Principles, has provided an impetus for developing ediscovery rulemaking. For example, the Ontario Rules of Civil Procedure make an explicit call for cooperation and a meet and confer conference when discussing discoverability of electronic data. Further, they require counsel to consult with The Sedona Canada Principles.

However, following the footprints of the EU, Canada has taken a rigorous approach to data protection regulation at the legislative level. Private sector data use is controlled by the Personal information Protection and Electronic Documents Act, a federal privacy law designed to “support and promote electronic commerce by protecting personal information that is collected, used or disclosed.”

Asia (APAC)

Ediscovery law in APAC is evolving at the speed of light. Some countries have passed ediscovery guidelines (e.g., Singapore); however, many countries, like South Korea and Japan, are still considering implementing ediscovery laws. In the APAC region, ediscovery largely impacts international companies with US-based litigation and antitrust concerns. Local counsel and local service providers can provide immense value when attempting to successfully collect data in the region, while navigating the vast legal system differences.
As the market continues to blast through geographic boundaries, watch for countries to continue to parse their existing rules against the demands of litigation, develop laws that cushion these changes, and shift the burden of knowledge to attorneys engaging in international data discovery. It is only a matter of time before a case on your docket, in your firm or on your desk involves multinational discovery laws. Also, for a deeper dive into APAC ediscovery, view this previously recorded Kroll Ontrack/eDJ webinar, Ediscovery in Asia: What U.S. Legal Professionals Need to Know.

1 See Gabriel Tech. Corp. v. Qualcomm Inc., 2013 WL 410103 (S.D.Cal. Feb. 1, 2013).
2 See Moore v. Citgo Co., LP, 735 F.3d 309 (5th Cir. 2013).
3 See Gordon v. Kaleida Health, 2013 WL 2250579 (W.D.N.Y. May 21, 2013).
4 American data protection law involves a concoction of legislation (e.g., the Fair Credit Reporting Act), self-regulation, and industry regulation.
5 Available:

The Five Biggest Ediscovery Issues to Watch in 2014

five biggest ediscovery issues

1. Converging tools and processes blur lines between early data assessment (EDA) and review

Does an organization really need two separate tools for EDA and review? For over 15 years, organizations have been adopting litigation technologies a la carte (e.g., a review tool) that solve maybe one piece of a much larger ediscovery puzzle. Only now are practitioners finally stepping back to see the forest for the trees: this cycle of one-off adoption has bred a lot of inefficiency.  Every time electronically stored information (ESI) is exported, processed, and ingested into a different tool downstream, time and money is lost. If one tool empowered legal teams to filter, test and review in one place, many of these inefficiencies could be reduced. With an eye toward repeatability and long-term project management, expect industry leaders in 2014 to critically reexamine what is—and, perhaps more importantly, what is not—really necessary to react to ediscovery.

2.       The lack of legal avenues to shift ediscovery costs will become unavoidable

One of the biggest concerns ediscovery experts voiced in 2013 was that there are no well-paved paths for seeking ediscovery costs in court. In 2013, the Fourth and Federal Circuit joined the Race Tires America court in reasoning that 28 U.S.C.  § 1940(4) only applies to ediscovery functions that can be construed as “exemplification” or “making copies”—thereby excluding the bulk of ediscovery costs. At the same time, the rules espoused in Zubulake III and found in Federal Rule 26(b)(2)(B) are conditioned on a finding of some level of data inaccessibility, which, quite frankly, is becoming less of a problem than the gobs and gobs of accessible data increasingly wreaking havoc on producing parties. In 2014, expect more legal professionals to take issue with this rigid cost-shifting framework. Given the emphasis on increased proportionality radiating from the current federal rulemaking efforts, courts will probably become more creative and comfortable using less clear forms of authority and clever ESI protocols to rein in disproportionate discovery.

3.       Search law will move forward

One issue left in the wake of Da Silva Moore is whether a party may obtain discovery of training decisions made during the machine learning stage of a predictive coding case. The court in In re Biomet tackled this question for the first time in 2013, reasoning that a party’s request for the identification of coding decisions made on training documents was unfounded because parties are not permitted discovery of irrelevant and potentially privileged documents. Touching on the permissible bounds of the work product doctrine as it applies to the most talked about next-gen review tool, this exemplifies the type of intricate search dispute that will likely be opinion worthy in 2014. Because district courts from independent circuits so often look to each other for support in ediscovery opinions, it wouldn’t be surprising to see this hot-button issue revisited multiple times in the new year.

4.       Proposed amendments to the Federal Rules shake up preservation and sanctions standards

There is undeniable inconsistency across the nation with regard to the culpability standards required for different levels of spoliation sanctions. Proposed Federal Rule 37(e)—one of a handful of ediscovery amendments under public commentary—essentially replaces this inconsistency by requiring a showing of substantial prejudice plus willfulness or bad faith to allot serious sanctions. This is a higher standard than those imposed in many circuits and notably forecloses courts from issuing serious sanctions where gross negligence or negligence resulted in the loss of potentially relevant ESI. Despite the fact that the Committee on Rules of Practice and Procedure wants to wrap up this process by early 2015, many question whether any of these amendments will actually change anything, while others wonder whether the threshold for serious sanctions as espoused by Proposed Rule 37(e) has been set too high.

 5.       Predictive coding will become a question of when, not if

Predictive coding has been around since 2010. It was first endorsed for use in the ‘right cases’ in Da Silva Moore and was later ordered to be used sua sponte in EOHRB. In 2013, courts went even further by: (1) accepting—over the opposition’s objection—a party’s decision to apply predictive coding after culling the majority of a data set with keyword search (In re Biomet), and (2) opining that disclosure of training documents was not required (In re Biomet). Outside of the judicial arena, the notion of curbing costs with modern technology has spurred amendments to the ABA Model Rules, proposed amendments to many provisions of the Federal Rules, and amendments to several state rules of civil procedure (e.g., Minnesota). If one looks to recent commentary about how to really get to the nub of proportionate discovery, predictive coding is increasingly being offered as a potential answer. While 2014 probably won’t be the year this technology goes mainstream, massive change has probably become inevitable.

Ediscovery Year(s) in Review: The Bigger Picture from 2008—2013

ediscovery year in review

If you reviewed Kroll Ontrack’s annual press release, attended our “year in review” webinar, and read our wrap-up about my recent Google+ Hangout with numerous ediscovery experts, you probably have a pretty good handle on ediscovery in 2013.

While there is significant value in knowing the latest trends in ediscovery case law, I’m reminded of one of my favorite law school professors who always stressed that I try to see the forest for the trees. In other words, the cases observed this year are most valuable when taken in context of opinions from years past to discern trends and changes in the rapidly-evolving world of electronic discovery.

Over the past six years, ediscovery has changed a lot, and case law reflects some of those changes. Let’s take a quick look at some of the trends from 2008 to present:

  • Sanction disputes remain (relatively) constant as preservation and spoliation standards remain in flux – from 2008 to 2013, opinions about sanctions have, on average, accounted for over 20 percent of the cases summarized by Kroll Ontrack. Cases discussing preservation and spoliation—the two topics most frequently related to sanctions—have seen a significant jump over the past two years. These are tricky subjects, and numerous courts—most recently and notably in Sekisui Am. Corp. v. Hart—tend to apply standards that vary by the facts of the case and the judge. As courts continue to interpret common law and apply varied analyses with regard to preservation, spoliation, and sanctions, this number will likely remain somewhat constant. Although the proposed amendments to the Federal Rules of Civil Procedure aim to provide more clarity with regard to spoliation, public support for this change is anything but uniform and we could still be years away from actually amending the Rules.
  • Cases discussing production have tailed off – the number of cases focusing on production disputes peaked in 2009, where the topic accounted for 41 percent of Kroll Ontrack’s case summaries. Since then, that number has declined fairly steadily, with a slight uptick in 2013. The heavy number of production disputes from five years ago likely stemmed the rising challenges producing additional mediums in big data. The post-2009 decline was likely a product of savvier practitioners and judges meeting those challenges head-on.
  • Procedural Disputes expand – opinions focusing on search methodologies saw the most notable increase in 2012, where they accounted for a larger majority of the cases summarized. As new technologies like predictive coding rose to prominence in 2012, the courts showed a heightened interest in the finer details of search methodologies to determine whether they were reasonable. In 2013, many of these questions were resolved under the framework of a proportionality analysis, which might prove more popular as proposed amendments make greater reference to this bedrock discovery principle.
  • Cost Concerns rise and stay steady – cases discussing ediscovery costs truly rose to prominence in 2010, and cases such as Race Tires Am., Inc. v. Hoosier Racing Tire Corp. typified one side of the lingering debate about which costs related to ediscovery were recoverable. While courts remain relatively split over whether ediscovery is the modern equivalent of “exemplification” or “making copies” under 28 U.S.C. § 1920 (4), this subject will likely receive greater attention from the judiciary as litigants try to make sense of the existing standards. In fact, many peers in my recent Google+ Hangout believe this topic should receive greater attention as the existing channels to recover costs are far too limited.

As we look ahead to the future of ediscovery, understanding where we are and where we’re going is tremendously important to successfully navigating the pitfalls of unstructured data, rising litigation costs, and a litany of other concerns unique to this field of practice. If you’re still looking for more “year in review” content with some forward-looking discussion, be sure to catch my most recent ESI report podcast featuring Phil Favro.

My (Google) Hangout with the Ediscovery Experts

my google hangout with the ediscovery experts

What happens when seven of the smartest, most articulate ediscovery professionals come together for an hour talk about—quite frankly—whatever they want?

Just yesterday  Josh Gilliland, Samir Mathur, Barry Murphy, Ralph Losey, George Socha, and David Horrigan joined my esteemed co-moderator Phil Favro and myself —virtually—for a Google+ Hangout on the current state of ediscovery. The discussion was loosely framed on three topics: case law, predictive coding, and FRCP amendments, and the perspectives shared (as you may expect from this forward-thinking group) were anything but canned.

Topic One: Case Law This no-nonsense panel wasted little time cutting to the bone with an important and seldom-raised question: Just how much weight does a trial decision from Judge Scheindlin, the “grandmother of ediscovery,” really pull?

On one hand, practitioners and other courts are leveraging cases like Sekisui to start thinking about how to handle issues like spoliation, but as another panelist pointed out, the principles of stare decisis fully apply—moreover, Scheindlin often restricts her holdings to her court room, as no one judge controls preservation.

“Are new rules the answer?” pressed another expert. Preservation law has existed for around 400 years, so maybe the answer doesn’t lie in creating a new framework, but in using the tools we have today more effectively.

In a statement that was shared by most, one lawyer noted that “[Preservation has] always been about reasonable efforts and it always will be”—and what’s reasonable in one jurisdiction will differ from what’s reasonable in another. The bottom line hasn’t changed: these are fact-based determinations, and courts will find a way to sanction people who intentionally delete evidence.

On the issue of whether or not new rules would help, one member of the group concluded this topic by noting that “[W]e’ve been dealing with sanctions since Roman times, and that rules alone are probably not the end-all, be-all solution.”

Topic Two: Predictive Coding – Where do we stand right now in the adoption of this technology, and what will 2014 look like? Is this a mainstream technology? Will it ever be?

Fairly universally, the panel agreed with the notion that predictive coding has yet not totally taken off. “Even if X% of clients have used it, they aren’t using it in all of their cases because not all cases are right for this technology. Moreover, it has yet to be embraced by smaller firms,” as one panelist noted.

But at the very same time, another panelist fired back, “you’d be foolish” to not use it in the mega cases. Now that we have judicial approval—notably more than we ever had for keyword searching—he  expects the discussion about predictive coding to mature, and the more interesting prospective discussions will be about the appropriate methodologies required to successfully deploy this software.

Another panelist argued that we’re going to see more opacity—yes, the opposite of clarity or clearness—in using this technology in 2014. There are ramifications tethered to agreeing to share testing and seed sets, and litigants will begin to carefully examine whether this is the right direction for using these solutions.

Most professionals agreed with the statement that lawyers are at the “tip of the tail on the dog” with regard to predicting coding technology. However, as noted by one attorney, as this technology continues to become less costly, and integrated into more review solutions, its usage should trickle down to the smaller firms.

Topic Three: Potential Amendments to the Federal Rules of Civil Procedure Before wrapping things up, the group analyzed potential FRCP amendments currently on the table for public comment until early next year, specifically changes to FRCP 26 and 37.

To get the ball rolling, one participant opined that the renewed interest being injected into the 26(f) meet and confer conference obligation—“the lynchpin of successful discovery”—is a step in the right direction. Another countered, however, “there is only so much you can do to force people to get together and cooperate early.” This point was further echoed across the panel: there must be also be a parallel culture shift in how lawyers approach cooperation. Whether this will actually happen is an entirely different question.

While there was fairly universal agreement that the potential changes to the Federal Rules were positive additions to ediscovery law, especially with regard to bringing proportionality clearly into parent Rule 26, there was some hesitancy as to just how “game-changing” these rules will be. Addressing proposed rule 37, one expert noted that the culpability triggers defined by this rule will probably not significantly alter the current spoliation analysis.

On the whole, most participants agreed that the vehicles for shifting ediscovery costs are too limited. Section 1920 (4), which allows prevailing parties to recoup fees for “exemplification” and “making copies,” must be reworked in one way or another, as it’s the only place to currently hang one’s hat. Concluding the discussion, one expert stated it’s hard to stretch a statute, which has been around for over 100 years, to accommodate requests for costs associated with increasingly necessary ediscovery processes.

2013 Case Law: “Back to Basics” Approach Gave Us Something to Chew On

back to basics

2013 for ediscovery “was a very good year.” The courts’ unified message was simple (showing a renewed interest proportionality and cooperation), clear (attorneys in 2013 must know ediscovery), and even a bit provocative (see Sekisui). Considering that a bold and active judiciary is absolutely necessary to bring these elusive principles to life, I’m not even mad that the judiciary may have been listening to Ol’ Blue Eyes before Thanksgiving.

Attorneys are finally realizing that palpable value lies in fostering cooperation and proportionality by chasing carrots like reduced motion practice and less “discovery about discovery.” At the very same time, however, we’ve seen courts return to tried and true sticks like 26(g) as a vehicle for sanctions, all while making sense of the spoliation rulemaking quagmire playing out at the federal level.

Overall, Kroll Ontrack summarized more than sixty significant ediscovery opinions. Here are the topics those opinions focused on, by percentage:

  • 28% of case revolved around Preservation and Spoliation of ESI, including when the duty to preserve is triggered
  • 23% of cases had to do with Production of ESI for discovery disputes and the methods used
  • 18% of cases address Sanctions for spoliation, production disputes and noncompliance with court orders
  • 18% looked at Procedural Issues such as search protocols, cooperation and privilege
  • 13% dealt with Costs such as shifting and taxation of costs

Notable ediscovery opinions from 2013 will prove most important as efforts to amend the Federal Rules of Civil Procedure progress through 2014. Many of these cases provided standards that either aligned with the proposed rules or further fueled the debate over the proposed language to key amendments.

For a deep dive in the 2013 in ediscovery, check out Kroll Ontrack’s annual press release and check back at this site to watch our recorded webinar.

Changing the Federal Rules: Commentary Opens, Advocacy Thrives


Who should bear the burden of showing prejudice (or a lack thereof) as a result of spoliation? The innocent party or the spoliating party? This vexing catch-22, which requires proof of what isn’t there, has not only lead to some of the most recognizable ediscovery case law in the country (See Zubulake; Pension Committee), but remains a major obstacle in the Advisory Committee’s path to amending the Federal Rules by 2015.  To put it bluntly, if draft rule 37(e) went effective today, it would overrule Sekisui and fly in the face of one of the most prominent ediscovery judges in the world’s stance on this very issue. Add fierce advocacy from large companies who are struggling to tread water in seas of ESI and one can see that while we’re almost three years into the rulemaking process, the finish line might not even be in sight.

November 7th marked the first of three public hearings aimed at proposed ediscovery amendments to the Federal Rules of Civil Procedure. Preliminary draft rules 26 and 37 stole the spotlight during the first public hearing in DC, and lobbyists minced words over what verbiage will appropriately curb over-preservation woes without going too far.

Let’s take a look at which amendments are still on the table, and where the arguments lie:

Proposed Rule 26 moves the proportionality factors of Rule 26(b)(2)(C) to the forefront of parent Rule 26(1).  A party’s ability to “obtain discovery” is now clearly conditioned on proportionality, akin to relevancy or lack of privilege.

  • Plaintiff’s Point: Bringing the proportionality factors of 26(b)(2)(C) to 26(1) and using the word “proportional” in the rule goes too far. It sends a clear message to courts that they can deny discovery and will breed early motion practice. This will present a substantial obstacle to individual plaintiffs attempting to assert a claim, especially where extensive discovery may be necessary to vindicate their rights (e.g., employment law).
  • Counterpoint: These minor changes will not shift the balance of discovery because these factors already appear in the Federal Rules. Further, any added protection this new wording presumptively offers already exists in our rules in the form of certifying discovery disclosures under Rule 26(g).

Proposed Rule 37(e) removes the traditional verbiage of the ‘safe harbor’—instead if any party fails to preserve information in “anticipation or conduct of litigation,” a court may issue basic sanctions like further discovery, curative measures, or an order to pay expenses associated with the failure. However, if a court finds “substantial prejudice” plus bad faith or willfulness, more severe sanctions, like an adverse inference instruction, become available. These more potent sanctions are also unlocked where a court finds that that spoliation “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.” Courts are directed to consider five familiar factors (e.g,. proportionality, reasonableness) in making this determination.

Top 5 Ediscovery Case Summaries – October 2013

Read the very latest ediscovery case law summaries

Court Orders Sanctions, Threatens Order to Retain an Ediscovery Vendor for Late and Inadequate Production
Logtale Ltd.v. IKOR, Inc., 2013 WL 3967750 (N.D. Cal. July 31, 2013).

Citing Proportionality, Court Declines Motion to Compel Unnecessary Documents
Apple Inc. v. Samsung Elecs. Co. Ltd., 2013 WL 4426512 (N.D. Cal. Aug. 14, 2013).

Absent Requisite Specificity, Court Declines “Ultra-Broad” Motion to Compel and Forensic Examination
NOLA Spice Designs, LLC v. Haydel Enters., Inc., 2013 WL 3974535 (E.D. La. Aug. 2, 2013).

Court Refuses to Presume Prejudice Suffered by Deletion of ESI, Denies Sanctions 
Herrmann v. Rain Link, Inc., 2013 WL 4028759 (D. Kan. Aug. 7, 2013).

Court Allows Presumption of Prejudice, Overturns Previous Order Denying Sanctions
Sekisui Am. Corp. v. Hart, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013).

There’s No Place Like Home: Kansas Courts Issue New Ediscovery Guidelines

ediscovery guidlines

Cooperation, proportionality and efficiency. Oh my!

One of the first lessons we are taught as a child is how to share. Unfortunately, for decades, the opposite has been drilled into litigation professionals. Judicial patience has worn thin and judges have taken it upon themselves to re-teach lawyers the crucial lesson of cooperation. In Alford v. Rents, the court did not hesitate in making two attorneys personally liable for a monetary fine of $3,750 for a “conscious effort to maximize litigation” and making it as “unpleasant and expensive as possible.” Indeed, the exasperated warning of the court in B&B Hardware, Inc. v. Fastenal Co., that parties stop behaving as “armed combatants” and more like “professionals”, is no longer an aberration but rather common.

It was with concerns in mind such as these that the United States District Court for the District of Kansas appointed the Rule 1 Task Force who recently published new guidelines for ediscovery. The Task Force, a committee of three lawyers and two federal judges, is dedicated to strengthening Rule 1 of the Federal Rules of Civil Procedure which calls for litigation to be handled in a “just, speedy, and inexpensive” way.  While the guidelines are not binding, lawyers would do well to follow them.

In an introduction aimed at highlighting the importance of cooperation in the new guidelines, the Task Force explicitly endorsed the Sedona Conference Cooperation Proclamation and noted that they have already been adopted by seven Kansas judges. Throughout the guidelines, the Task Force bade counsel to “engage with opposing counsel in a respectful, reasonable, and good faith manner.”  The Task Force also recognized that the discovery of ESI “is unduly expensive if not managed properly.” Therefore, they recommended that counsel become knowledgeable about client’s information management systems before the discovery conference so they can effectively discuss the storage and retrieval of the ESI. The guidelines also noted that the parties should presume that the producing party will bear all costs for “reasonably accessible ESI” and that there will be cost-shifting for ESI that is not reasonably accessible.

The guidelines do not endorse any one method of reviewing documents, but the Task Force did point out that the proportionality principle must be considered and parties must confer and agree on a “reasonably specific protocol for retrieving and producing ESI.” With this in mind, the Task Force recommended that the parties agree on a neutral vendor and/or use one search protocol to reduce costs, noting, “an attorney’s representation of a client is improved by conducting discovery in a cooperative manner.

Whether or not your practice or docket brings you to litigate in the land of Dorothy and Oz, Kansas’ new approach to ediscovery will likely serve as a template for other jurisdictions across the country. To keep up on ediscovery developments in Kansas and other jurisdictions across the United States, visit the ediscovery Local Rules & Statutes guide.  Further, for more information on cooperation and the ethical challenges of ediscovery, check out a recent presentation Ethical Challenges in Ediscovery.

Top 5 Ediscovery Case Summaries – August 2013

Read the very latest ediscovery case law summaries

Court Declines to Rule on Discovery Dispute until Parties Meet and Confer                                                                                                                              AMEC Env’t & Infrastructure, Inc. v. Geosyntec Consultants, Inc., 2013 WL 3923459 (N.D. Cal. July 26, 2013).

Court References Defendant’s Previous Spoliation in Granting Sanctions Hart v. Dillon Cos., 2013 WL 3442555 (D. Colo. July 9, 2013).

Negligence Alone is not Enough for Spoliation Sanctions                      Sekisui Am. Corp. v. Hart, 2013 WL 2951924 (S.D.N.Y. June 10, 2013).

Stored Communications Act Can Block Employer Access to Personal Data on Company-Issued Devices                                                                                Lazette v. Kulmatycki, 2013 WL 2455937 (N.D. Ohio June 5, 2013).

Proportionality Must Be Considered for Spoliation Sanctions                     PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013).

Rulemaking Efforts Move Forward

Amended Federal Rules - Coming Soon!

Efforts to amend the Federal Rules of Civil Procedure took another step forward last week. On June 3, 2013, the Standing Committee on Rules of Practice and Procedure (“the Standing Committee”) approved a package of proposals to change several of the Federal Rules relevant to ediscovery. The package will be released to the bench and bar for a six-month public comment period on August 15, 2013.

The package approved by the Standing Committee was first adopted by the Civil Rules Advisory Committee (“The Rules Committee”) during its April 2013 meeting. The package combines nearly three years of initiatives handled by the Discovery Subcommittee and the Duke Subcommittee following the Duke Litigation Review Conference in May 2010. The package contains the following:

  • An amendment to Rule 1, addressing the issue of cooperation in discovery
  • Amendments to Rule 16 & 26(f), including preservation considerations as a component of discovery plans and scheduling orders
  • Amendments to Rule 26(b), adding proportionality to further define the scope of discovery
  • Amendments to Rules 30, 31, 33 and 36, imposing or reducing numerical limits on interrogatories, oral or written depositions, and requests to admit
  • An amendment to Rule 34, requiring greater specificity in objections to requests to produce
  • An amendment to Rule 26(c), further clarifying the courts authority to order cost-shifting
  • A replacement rule Rule 37(e), aiming to create a national, uniform standard for culpability with regard to spoliation sanctions

Following the comment period, public hearings will be held November 7, 2013 in Washington, January 9, 2014 in Phoenix and early February 2014 in Dallas. For the full text and comments about the Rules Package, check out the May 2013 Report of the Rules Committee to the Standing Committee.

Looking for more on this hot topic? Don’t miss Kroll Ontrack’s June 12th webinar,  Are Your Ediscovery Practices Ready for FRCP Amendments?, hosted by state and Federal rules expert Tom Allman. Additionally, Tom wrote this article with more details on the Rules Package.