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  • Upcoming Events: Summer 2011
  • Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration
  • Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)
  • Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format

(news from K & L Gates)

Swan song for Mary; Ralph encores for Fios Fall Case Law Update

by Mary Mack

Ralph Losey graciously agreed to continue our conversation over emerging case law tomorrow (Wednesday, October 27) at 1PM EST/10 PM EST.  Register here.

We will be talking about the “gang that couldn’t spoliate straight”,  Judge Grimm’s highly instructive and entertaining look at Victor Stanley Revisited.  We will also talk about an ERISA case (YAWN) with ediscovery wagging the tail of the dog (ok, awake now).  We are probably going to walk through the Maguire Woods opinion on the unrequited 502 clawback.    Ralph has written on these three cases extensively, as is his custom, for his wonderful ediscovery team blog.

Fios graciously moved upcontinue…

Ralph Losey and Brett Anders, Case Law Update Part 2

by Mary Mack

Ralph Losey, Brett Anders (both of Jackson Lewis, the national workplace  law firm) and I will finish our discussion of the hot cases of last quarter on Wednesday, August 4, 2010.  Register here.

With an embarrassment of riches of cases to delve into, it was not surprising that we have a couple left over.

We’ll be talking about the Crispin case (Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010)).  This case has the SCA (Stored Communications Act), Facebook, and the balancing act between what is public and what is private.

Bray and Gillespie, the case thatcontinue…

Scheindlin – Pension Committee – Negligence Standard Revised

by Mary Mack

The ever alert Ralph Losey posted a note about another amendment to the Pension Committee decision by Judge Shira Scheindlin:

At page 10, lines 7-10 replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issued in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.

Judge Scheindlin’s last amendment was to correctcontinue…

Duke Conference on Civil Procedure and eDiscovery-Day 2

by Mary Mack

by Mary Mack, Corporate Technology Counsel, Fios.

Duke University hosted the 2010 Civil Litigation Conference for the second day, again live streamed. Ediscovery was discussed through the day, even when the topic was fact pleading or other procedural elements.

There was a consensus that preservation needs to be called out, triggers to preserve identified and a more clear safe harbor constructed (FRCP 37(e)). Other consensus items include the need for judicial management, quick rulings and education of the bench and bar.  The Seventh Circuit pilot project was very well received, as were state innovations (including Oregon).

There is less consensus on fact pleading, early mandatory disclosures, separatecontinue…

Federal Rules of Civil Procedure (FRCP) Duke Conference Day 1

by Mary Mack

Duke University hosted the 2010 Civil Litigation Conference today in person and amazingly, live streamed.

Both video and audio were available and good, opening up the rule making process in an unprecedented way.  There was frank and lively discussion. It was a demonstration why public trials are important to model behavior when ideas are contested and passions high.

The participants had clearly done their homework as they quoted liberally from each other’s submitted papers to agree with some and disagree with other points.  I say point rather than argument, as conference encouraged interaction.

Day 2 of the conference will also be live streamed.  At the risk of degradingcontinue…

Webcast: e-Discovery Case Law Update – Winter/Spring 2010

by Jim Woolfrey

Wed. 3/24 – Mary Mack welcomes Charles W. Cohen (Partner, Co-Chair, eDiscovery Practice Group, Hughes Hubbard and Reed LLP) for Fios’ quarterly e-discovery case law update. They will explore recent court decisions, including Judge Scheindlin’s most recent ruling; the impact these cases may have and are already having; and tactics and strategies organizations should consider to help control their e-discovery costs and risks. More info / register >

Webcast: The End of e-Discovery As We Know It?

by Jim Woolfrey

12/9 – Be sure to register for this webcast featuring an outstanding panel of e-discovery experts discussing what’s wrong (and right) with the current e-discovery rules and system.  Moderated by Mary Mack, the panel members include:

  • Richard Braman, Executive Director of the Sedona Conference
  • Craig Merritt, Christian & Barton LLP & former member of The American College of Trial Lawyers Task Force on Discovery
  • Bruce Parker, Partner, Venable LLP – Lawyers for Civil Justice

More information / register >


AZ Supreme Court says metadata a public record

by Mary Mack

Records managers will be taking a new look at “Create dates” after the Arizona Supreme Court mandated production of metadata in public records.

The case involved a demoted police officer who wanted access to the metadata to prove notes were backdated.  Up until now, most cases have held that there must be a showing that metadata is necessary before ordering its production.  While this case may be applied narrowly for Arizona public records, it may impact other governmental entities and courts.

“It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in


Webcast: 25 and Counting – State e-Discovery Rules Taking Shape

by Jim Woolfrey

Wed. 12/16 – As of Sept. 2009, twenty five states have adopted e-discovery procedural rules that reflect the 2006 FRCP amendments. Many others are considering changes. In this 3rd annual webcast, Tom Allman and Mary Mack provide an update.  More info / Register >

$4.2 million misconduct sanction in railroad death case sends strong signal

by Reporter

The money quote: “BNSF, through its spokesperson, Suann Lundsberg, told Minnesota Lawyer that there was an issue six years ago regarding evidence preservation and acknowledged that BNSF could have done a more thorough job of documenting that the gates and lights were properly activated.”

This fascinating story, from Minnesota Lawyer, of sanctions and fully complying with discovery is a good read. Continue reading….

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