Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(f) and The Sedona Conference® “Cooperation Proclamation” was a hollow platitude or aspirational goal, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel, at least in his court.
Category: Litigation Preparedness and Strategies
Having recognized the challenges regarding jurors’ use of social media in the courtroom, the Committee on Court Administration and Case Management requested that the Federal Judicial Center (“FJC”) survey district court judges to identify effective mechanisms to curtail this growing problem. In response, the FJC queried 952 district judges and issued Jurors’ Use of Media During Trials and Deliberations, which demonstrates that despite the various strategies devised, it is virtually impossible to prevent jurors’ use of social media and is equally difficult to detect each and every impropriety. This issue is not novel; in fact, this blog has previously reported on instances where jurors’ use of social media had a significant impact on a proceeding as well as suggestions on how to avoid such pitfalls. Click here for those postings.
Ooops, They Did it Again — Jurors Continue to Improperly Use the Internet, and Courts Struggle with Solutions
All over the country, courts are struggling with how best to prevent juror communications and/or research on the Internet, including on social media such as Facebook. What’s the solution? Thus far, there is no clear answer, as evidenced by a recent New Jersey case in which a juror dodged sanctions for contempt after researching a child sex-crime case involving a former pastor on the Internet — even after being instructed to refrain from such Internet research.
It has become commonplace for parties engaged in electronic discovery to discuss and agree upon “keyword” searches in an effort to limit the overall scope of discovery. A recent decision in the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix, Civ. No. 03-3677 (DRD), (D.N.J. 2011), demonstrates the pitfalls that arise when the parties too eagerly agree to conduct a search for electronically stored information using an overly broad set of keywords. The case also demonstrates a court’s willingness to engage in proportionality analysis to cabin broad discovery.
Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases
The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).
The E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association recently issued a Report entitled, “Best Practices in E-Discovery in New York State and Federal Courts.” The Report offers fourteen (14) “Guidelines” for the New York litigator dealing with ESI, and includes a helpful glossary and bibliography. The Report provides a brief and straightforward interpretation of the current state of e-discovery law and recommendations on how to “best” navigate that current landscape.
The Fifth Annual Gibbons E-Discovery Conference Closes With Helpful Guidance on Drafting Records Management Policies
An effective and up-to-date set of records management policies may help companies reduce the likelihood of sanctions and other adverse consequences by ensuring records are retained and preserved in accordance with legal requirements, according to Gibbons Director Phillip Duffy; TechLaw Solutions’ Northeast Regional Director Michael Landau; and Inventus LLC Senior Consultant Bryan Melchionda.
Recently, a federal court in Illinois held in Thorncreek Apartments III, LLC v. Village or Park Forest that a defendant waived the attorney-client privilege when it inadvertently produced 159 documents that it later claimed were privileged. The defendant’s failure to take reasonably adequate measures to prevent such disclosure serves as a lesson for all attorneys, especially those who manage large, rolling document productions with the help of a vendor.
The Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year’s Pivotal E-Discovery Case Decisions
The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.
On October 3, 2011, the United States Court of Appeals for the Ninth Circuit determined that the Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. §§ 2510 2522, applies to foreign citizens, giving them the same privacy protections Congress afforded U.S. citizens in connection with the disclosure of electronic data by third-parties service providers.