All posts tagged FRCP

Hot Topics in Ediscovery

As you get ready to head back to the office this fall, make sure you’re up to speed on some of the most significant developments in ediscovery from this summer.

New Data Protection and Transfer Laws in Japan and China

Earlier this summer, Japan and China enacted significant changes to their data protection and transfer laws. In Japan, the Act on the Protection of Personal Information (APPI) went into full effect on May 30, 2017 and companies are expected to make immediate changes. China’s controversial Cybersecurity Law went into full effect in early June 2017 and focuses on network operators managing data in the country.

Antitrust Law and Technical Innovation

Technological advancements throughout the world have transformed policies and institutions that enforce antitrust law. Check out parts one and two of our video series focusing on how policy and technology changes create implications in the many fields of antitrust law.

Civil Procedure Rules in State Court

Following the release of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), states have taken different approaches to updating their own rules. Some states have adopted the new FRCP, other states are currently considering changes and a handful of states march to the beat of their own drum. Learn more about your state and states that may be important to you in the future.

Fighting Fraud in France

Fraud, corruption and bribery hit close to home for legal and IT professionals around the globe. In France, game-changing legislation has taken effect to strengthen anti-corruption efforts. Sapin II, as the legislation is called, is modelled on the U.S. Foreign Corrupt Practices Act (FCPA) and the U.K. Bribery Act. U.S. businesses with global operations should be prepared with renewed understanding of France’s regulations.

Whether you have a matter that requires collection of electronically stored information (ESI) in a country with strict data protection rules or have questions about state rules of civil procedure, you can keep up to date on everything ediscovery with weekly updates from The Ediscovery Blog.

Last Year’s Cases; This Year’s Practices

Last week I had the opportunity to speak at the February meeting of the Minnesota Association of Litigation Support Professionals chapter. About 50 people gathered for lunch and learning, sharing in a retrospective of ediscovery case law in 2016. This was a chance for me to “go deep” into the facts and holdings of some of the foremost judicial opinions in the past year and, for me personally, the experience was enjoyable. In full disclosure, I have been asked to speak at MALSP on this topic in years past; however, the assignment never grows monotonous. Each year there are always interesting and meaningful developments to discuss, with no shortage of captivating facts.

In addition to examining Bard, Gilead Sciences, CAT3 and Hyles, we talked about how the decisions of 2016 will shape ediscovery law and practices in 2017. There was great consensus that in 2016, courts and parties were finding their footing applying the 2015 FRCP amendments to ediscovery. In 2017, it is anticipated that courts will be off and running, digging into thornier issues as parties make stronger arguments for and against proportionality under Rule 26(b)(1) and sanctions under Rule 37(e). At the end of 2016, I published an article focused on both of these topics and more. As you prepare for ediscovery in 2017, be sure to take five minutes and read “How This Year’s Experience With the New Rules Will Shape Next Year’s Ediscovery.”

A Warm Fire, a Hot Drink and a New Legal Hold Guide

Snow flakes, steaming drinks and friendly gatherings are some of the best parts of December – and no classic winter gathering is complete without a roaring fire. But practitioners know not all fires bring great memories: legal hold wildfires and resulting sanctions can dampen winter joy. Fortunately, Kroll Ontrack has just released a newly updated guide, Preventing a Legal Hold Wildfire, so that nothing ruins your winter delights.

The Sanctions Outside are Frightful

The December 1, 2015 FRCP amendments and this year’s court decisions, such as GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016), reiterate the importance of the duty to preserve electronically stored information (ESI). Recognizing your company’s or client’s duty to preserve, when it begins, what it entails and when it ends are key strategies that can save your organization time, money and stress.

But Proper Preservation is so Delightful

The newly updated guide from Kroll Ontrack, Preventing a Legal Hold Wildfire, has tips and tricks so that you do not get caught in the flames. This compact guide features 2016 case law and gives practitioners the starting points that they need to make their own strategies for navigating legal holds.

Since We Know Just Where to Go

Knowing what your organization needs to do and how to do it are two very different tasks; parties need to have their legal hold processes and systems in check. Kroll Ontrack has professional consultants for every aspect of the ediscovery process. And, when it comes to legal holds and how to implement them, Jackie Warner, one of our legal hold consultants, is a pro. Contact Jackie today for an initial legal hold consultation.

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

A Tale of Two Rules

The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on proportionality and Rule 37(e) with its “reasonable steps” language have impacted the ediscovery environment.

To guide practitioners, Kroll Ontrack has compiled an extensive case law digest containing case summaries and analysis to guide practitioners through the nuances of these new rules. In addition to the downloadable e-book, Kroll Ontrack partnered with Judge Elizabeth Preston Deavers of Ohio and nationally renowned civil procedure expert Tom Allman to present a webinar that explored the most prominent cases and developments.

Rule 26(b)(1): The Age of Proportionality

In the webinar, Judge Deavers discussed the changes to Rule 26(b)(1) and their resulting impact on ediscovery. Most notably, the old and often cited “reasonably calculated” language of this rule has been removed, and the rule was revised to emphasize the need for proportionality. Webinar speaker Tom Allman referenced a new research paper he authored, Proportionality Today, which he made available to webinar attendees.

As the new rules take hold, one theme clearly emerges: There is no substitute for specificity. Parties need to be prepared to explain why their discovery request is both relevant and proportional, while parties that are objecting to discovery need to be able to explain why it is not.

In the background of this is newly amended Rule 1, which encourages cooperation between the parties. Keeping discovery proportional and manageable is no longer solely the responsibility of the courts: parties are now expected to do their part to contain the parameters of discovery and resolve any disputes.

Rule 37(e): Preservation Under the Shadow of Inherent Power

In addition to the Rule 26 discussion, Tom Allman reviewed the amendments to Rule 37(e) in regards to sanctions for ESI spoliation and directed webinar attendees to another piece of his research, Applying Amended Rule 37(e). The new language specifies that “reasonable steps” must be taken to preserve ESI, however the rules do not specify what this constitutes, leaving it to the courts to determine depending on the facts of the case.

Despite the lack of explanation of what constitutes “reasonable steps,” the rule clarifies that a party must still have act with intent or “bad faith” before sanctions will be imposed. Suspicious activity or honest mistakes are not enough to warrant sanctions, in most cases. However, if a party acts irresponsibly to preserve evidence, a court may infer a finding of intent.

In addition, Rule 37(e) has attracted attention because some courts are going beyond the parameters of Rule 37(e) and using their “inherent power” to sanction parties. In these cases, the court reached the conclusion that Rule 37(e) did not provide a suitable remedy for the behavior.

With new opinions emerging on an almost daily basis, the impact of the 2015 FRCP amendments continues to evolve, changing the ediscovery landscape.

6 Months of Case Law Under the New FRCP

Six months have passed since the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took effect. What has been the impact of the new rules on civil litigation and discovery?

In particular, Rule 26(b)(1) and Rule 37(e) have attracted a sizeable amount of jurisprudence, as both courts and parties grapple with the applications of these new rules. To aid today’s practitioner, Kroll Ontrack analyzed the most significant judicial opinions of the last six months relating to Rule 26(b)(1) and Rule 37(e).

How have the amendments impacted discovery? Download the FRCP case law digest.

Proportionality Reigns Supreme

In the first six months since the 2015 amendment to Rule 26(b)(1), courts have struggled with the removal of the “reasonably calculated” language, and the additional emphasis on proportionality. Pioneering lawsuits have fleshed out the most pressing questions such as what factors matter the most when arguing proportionality? In what way should a party object to discovery under the new rules? Looking at the totality of the case law, one new theme has emerged—there is no substitute for specificity. Both parties are required to state with specificity why they are requesting or objecting to discovery.

Safe Harbors for “Reasonable Steps”

In the past, organizations have been pressured to preserve massive amounts of ESI at tremendous expense. The 2015 amendments have attempted to require only “reasonable steps” be taken to preserve the information. But is it actually advancing adequate data preservation causes? What constitutes “reasonable steps” under the new FRCP amendments? If evidence was preserved and then lost, what level of intent is needed before a court will impose sanctions?

Each of these questions are addressed in Kroll Ontrack’s case summary digest, with the most relevant case law opinions highlighting the expectations from the courts in the first six months since the 2015 FRCP amendments. Download a copy of the FRCP case law digest by Kroll Ontrack, which not only summarizes key findings but also contains a circuit-by-circuit list of judicial opinions referencing FRCP amendments to Rule 26(b)(1) and Rule 37(e).

Still catching up on the 2015 amendments? Download a copy of Kroll Ontrack’s 2015 FRCP Amendments guidebook, which contains each of the December 1, 2015 amendments and full text of the Advisory Committee notes.

The 2015 FRCP Amendments: ‘Tis the Season

Hoping to find the perfect gift for the ediscovery professional in your life? Look no further than the 2015 Amendments to the Federal Rules of Civil Procedure (FRCP).

The FRCP Amendments Are Here

Significant changes to the FRCP affecting the legal discovery of ESI become effective on December 1, 2015. At the heart of the amendments is a renewed effort to provide judges and lawyers with practical tools to help move the discovery process along and keeps costs in control. The amendments, including revisions to Rules 1, 16, 26, 34, and 37, are intended to provide new guidelines on the scope of discovery and the spoliation of ESI while emphasizing the need for proportionality and cooperation between parties.

Now, more than ever, both counselor and client will need to familiarize themselves with the rules changes and prepare for their impact on discovery. Kroll Ontrack has a new guide on the FRCP amendments, which provides the text of the major rules amendments and the accompanying Committee Notes. It also examines their impact on key ediscovery rule provisions, along with analysis for organizations and their legal teams.

Rule 16

Active case management is a prominent theme throughout the amendments to Rule 16. The reduction of time for courts to issue a scheduling order and the bolstering of the meet and confer aim to reduce delays at the outset of litigation. This will make early case assessment even more important. Parties should know where their data lie and on what data sources, what types of data are implicated, and how data will be reviewed and produced. The amendments also allow for a more inclusive scheduling order, where courts are empowered to address preservation of ESI, clawback agreements under Federal Rule of Evidence 502, and a required discovery conference before either party moves for a discovery order.

Rule 26

A major headline from the 2015 amendments is the deletion of the “reasonably calculated to lead to the discovery of admissible evidence” language in Rule 26(b)(1). In its place, the new Rule 26 emphasizes that parties may obtain discovery of non-privileged information, including ESI, that is both relevant and proportional to the needs of the case, and lists relevant considerations in determining whether discovery is proportional.  While the new Rule 26 eliminates an often cited basis for allowing virtually unlimited discovery—the “reasonably calculated” language—it remains unclear as to the extent the new rule will limit the scope of discovery.

The new Rule 26 also allows for delivery—not service— of discovery requests prior to the meet and confer, with the intent of relaxing the existing “discovery moratorium” and to facilitate more meaningful discussion during the Rule 26(f) conference. Allowing early Rule 34 requests for production demonstrates a coordinated effort among the amendments for the need for greater urgency to get discovery issues worked out early before collection, review, and production.

Rule 34

The new Rule 34 aims to limit any confusion in regard to production obligations and objections to requests for production. As mentioned above, the Rule is amended to align with new Rule 26 to deliver early discovery requests. Amended Rule 34 also requires that objections to Rule 34 requests must be “stated with specificity,” with the likely effect of broad and boilerplate objections no longer allowed in discovery disputes. Further, the new Rule 34 requires that an objection must also include whether any responsive materials are withheld on the basis of that objection, with the intent to prevent misleading objections which leave the requesting party in the dark about whether information is nonetheless being withheld after a partial production.

Rule 37

The amendment to Rule 37(e) completely replaces the previous version, and addresses and resolves a historical split among the Federal Circuits concerning the level of culpability required to issue severe sanctions, including adverse inferences, for failing to preserve ESI. The most serious sanctions will only attach when there is proof of an “intent to deprive” a party of the use of ESI in the course of the matter.  The Committee Note clarifies that “reasonable steps to preserve suffice; it does not call for perfection,” but mentions that proportionality, including consideration of the parties’ resources, will be a factor when evaluating the reasonableness of preservation efforts. The “reasonable steps” test is designed to encourage responsible and targeted preservation and retention efforts.

To find more analysis and impact of these amendments, download your copy of the Federal Rules of Civil Procedure Ediscovery Guide: Practical Analysis for Organizations and Legal Teams.  It’s the perfect gift for those tough-to-shop-for ediscovery professionals (and it’s free!).

Ediscovery 2014 Mid-Year Update: What’s Trending Now

The sun is shining, the birds are chirping, and the polar vortex is slowly becoming a distant memory. July 4th is just around the corner and that means we are almost half-way through the year – just in time for a mid-year update on the latest trends in ediscovery!

This week I was invited by an Am Law 100 law firm to provide its practice support team with an update on the latest ediscovery trends for 2014. When I was preparing for my presentation, I realized how quickly the trends in ediscovery evolve and discovered that the latest trends are different now than they were only 6 months ago. For example, many of the CLE sessions Legal Tech New York in February anticipated that predictive coding and information governance were going to be the hottest trending topics in 2014. As we reach the mid-point of 2014, these two topics and more are what’s hot in ediscovery. The top 5 currently trending areas in ediscovery are:

1) Predictive Coding – Predictive Coding is being used on an increasing number of ediscovery projects. It reduces litigation expenditures and is a great resource for both small and large ediscovery proceedings.

2) Data Triage – Downward cost pressures are driving new EDA and document review practices. Searching strategies are shifting which forces innovative and creative ediscovery practices.

3) Portfolio Management – Ediscovery services and software are being purchased at the portfolio level to curb costs. Buying patterns are changing resulting in more fixed-cost and subscription pricing models.

4) Information Governance – Big data is king and causing struggle now more than ever for corporations. The interplay of ESI and big data is still a conundrum for a large number of companies.

5) FRCP – US Civil Procedure Rules are likely to change in December 2015.  With two major hurdles down and three to go in the amendment process, by 2015 there will be new versions of Rules 1, 4, 16, 26, 34, and 37.

Get Ready for New Ediscovery Rules in Minnesota

The month of July ensures some much needed warmth in Minnesota after an offensively wintery spring, but July also brings an exciting new set of amendments to the Minnesota Rules of Civil Procedure. From July 1, 2013 onward, Minnesota lawyers are obligated to cooperate and be more upfront during the discovery process. In an effort to mirror the crux of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP), electronic discovery and proportionality will be the focus of the new Minnesota Rules of Civil Procedure, due in no small part to the resounding plea from lawyers all over the state for the judicial enforcement of cost-effectiveness and manageability in civil litigation.

Particularly interesting is the new Rule 1, which explicitly addresses proportionality – a welcome step that actually goes above and beyond the FRCP. The specific mention of proportionality takes the wiggle room away from litigants tempted to play fiscal “chicken” with opposing counsel via discovery costs. It puts the onus on each party to work across the aisle and limit discovery to a practicable scope.

The most expansive change comes in Rule 16, by which Minnesota lawyers must make an earlier investment on tailored ediscovery plans. Lawyers must conduct ediscovery management with more effort than ever by way of compulsory initial disclosures related to custodians, data sources, litigation holds, scheduling, production format, and everything in between. A strict new timeline will be enforced – thirty days after the answer to the complaint, the discovery conference must take place, and fourteen days after that, the parties must file a discovery plan with the court. No longer will “Yep, we talked about ediscovery” end the story, as the court will now be more involved in early planning to ensure that the discovery beast stays tame. In fact, no discovery will be allowed until after the initial disclosures and scheduling order pass the court’s muster. In essence, early preparation and a strengthened call for cooperation are certainly the themes of the new rules in Minnesota state court.

Updates to the Minnesota Rules come at the perfect time, when high-level discussions are occurring about similarly strengthening the FRCP to reflect the growing need to address proportionality in litigation. All in all, the updates reflect the legal system moving forward on a path towards the “North Star” in ediscovery.

The text of the new Minnesota Rules of Civil Procedure can be found here.

What U.S. Legal Ediscovery Professionals Can Learn from the New U.K. Rules of Civil Procedure

What U.S. legal ediscovery professionals can learn from the new UK rules of civil procedure

In the last year, Americans have had a great deal of exposure to our British ally across the pond: we caught glimpses of the Queen’s Diamond Jubilee, we were awed by the London Olympics, and don’t even get us started about Downton Abbey. In 2013, ediscovery enthusiasts have something new to witness from our British counterparts – the updated U.K. Rules of Civil Procedure (CPR), which went into effect on April 1, 2013.

Significant Ediscovery Themes

Overall, there are a handful of significant ediscovery themes that come with these new civil procedure rules: proportionality, case management and budgeting, early and efficient disclosure, and the emphasis on the critical role of technology.   Below is a breakdown of some of the new provisions as they relate to ediscovery (or “edisclosure” as they call it in the U.K.).

The key concept underpinning the change in the U.K. is that of proportionality when it comes to litigation costs, and this is now made clear in the “overriding objectives” of the rules (Rule 1.1 of the CPR). It speaks volumes that this rule was amended to enable the “court to deal with cases justly and at a proportionate cost.” Interestingly, the new U.K. rule explicitly uses the word “proportionate,” while the U.S. Federal Rules of Civil Procedure (FRCP) fails to explicitly include the term. U.S. parties continue to struggle with proportionality, especially when large volumes of electronically stored data (ESI) are involved. Currently, there is much discussion in the U.S. as to whether the U.S. rules are in need of a change similar to that which has taken place in the U.K..

Case Management and Cost Management Powers

Part 3 of the revised rules in the U.K. provides the court with new case and cost management powers. The most important section requires the parties to file a budget early in the case, which allows the courts to actively manage cases within the parameters of these budgets. The court may make at any time a “costs management order” to control the parties’ budgets. Only costs that have been budgeted for and approved by the court in advance will be recovered at the end of a case by the successful party. As a result of these new rules, U.K. lawyers must now consider disclosure much earlier in the process, scope their projects more carefully, and cooperate with opponents sooner. While American lawyers must “meet and confer” early on with regards to the scope of discovery, there is no formal requirement in the U.S. to submit a litigation budget as is now required in the U.K.

U.K. lawyers must also now file a formal disclosure report early on in the case, which sets out the option chosen and describes the documents and a rough estimate of the costs of standard disclosure. In the U.K., the old forms of CPR 31.5 and 31.6 set out the default rules for standard disclosure, which require each party to examine all of their own documents and pick out the ones that will help or hinder any party’s case. This approach has become untenable; the costs of analyzing the enormous volume of electronically stored information can exceed the value of the case itself. However, the new Rule 31.5 provides a menu of disclosure options for the court’s disclosure orders, which provide for a more tailored approach in meeting the overriding objective of proportionality. These range from no disclosure to full blown train of enquiry disclosure with issues-based disclosure and reliance-based disclosure somewhere in between.

The option in the new U.K. CPR most likely to garner debate broadly states that courts can issue “[a]ny other order in relation to disclosure that the court considers appropriate.” Concerns swirling around this new language suggest that it could lead to a “key to the warehouse” approach by which each party hands over all non-privileged documents from which the other side can pick and choose what it needs at its own expense. Such options, as now standard in in the U.K. CPR, are also churning in the U.S., as courts look for flexibility in adopting tailored approaches to ediscovery given the specific circumstances of the case type and volume of data at issue.

Leveraging Technology in EDiscovery Litigation

As such provisions break new ground in the U.K., these new rules emphasize one theme applicable to U.K. and U.S. legal professionals alike – it has become essential to competently leverage the power of technology to manage .discovery in litigation. From litigation databases in the “cloud” to Technology Assisted Review (TAR), new technology developments will continue to emerge that make proportionality achievable, keep litigation costs within budget, and protect privileged information from disclosure.

 
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