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  16. Document Control Group E-Discovery Center


  • Agent's Spoliation Results in Serious Sanctions
  • "Bad Faith or Culpability 'May Not Mean Evil Intent, but May Simply Signify Responsibility and Control.'"
  • No Sanctions for Destruction of Data Resulting from Mistaken Belief that Computers had been Imaged
  • Court Sanctions Plaintiff and Counsel for Misuse of Discovery Process, Including Failing to Reveal That Relevant Cell Phones were Discarded

(news from K & L Gates)

Duke Conference on Civil Procedure and eDiscovery-Day 2

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

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

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 >


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

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….

NJ Appellate Court Reverses Course: Attorney-client privilege revived

By Fernando M. Pinguelo and Andrew K. Taylor

Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer. Recently, an appellate court reversed that ruling and framed the issue as “whether workplace regulations converted an employee’s emails with her attorney ” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”

Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that thecontinue…

Enslaved Priest’s Negligent Loss of Laptop Results in Spoliation Sanctions Recommendation

Legal Holds & Trigger Events, is a blog dedicated to cases, insights, developments and best practices relating to the development and implementation of legal holds relating to audit, investigation and litigation in the United States; and trigger events that give rise to the duty to preserve evidence in the United States.

Today they review a report of In Shukla v. Sharma (EDNY Aug. 21, 2009),in which a Hindu Priest, claimed that the Ashram he lived and worked for in New York illegally trafficked him into the US in 2000 and enslaved him.

The primary discussion of the Report is a summary judgment motion by defendants, but a spoliation motion alsocontinue…

FRCP moves from business days to calendar days

The Federal Rules of Civil Procedure are changing December 1, 2009.  Heads up to ediscovery teams to readjust calendars.  The changes give extra time and take time away.

The most significant changes are to Rule 6. Currently under Rule 6, intermediate weekends and holidays for some short time periods are excluded when counting deadlines…

The new Rule 6 adopts the “days-are-days” approach. When calculating a deadline, every day is counted, including intermediate weekends and holidays, for all time periods.

Docketing professionals will be quite busy figuring out the gift of time.

Other drastic changes to the FRCP are the new time periods in Rules 6, 12, 14, 15, 23, 27,


State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update from Thomas Y. Allman

As of September 2009, twenty-three states have adopted statewide ediscovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (2006 Amendments). In addition, several states have adopted, typically as a separate measure, an analog to the Federal Evidence Rule 502 dealing with waiver of the attorney-client privilege or work product protection.

Mr. Allman analyzes the continuing evolution of ediscovery at the state level here.

Tip of the hat to D and the fine bloggers at K&L Gates…..

Twombly revisited?

Arlen Specter (D-Pa) has proposed a return to prior pleading standards for civil lawsuits. This certainly could make for an interesting discussion on liberal pleading standards v. reasonable notice to defendant and excessive preservation requirements. Continue reading….

California? Swimming in the Deep End: Treading Water in e-Discovery Case

Not every judge has the experiences of Magistrate Judges Facciola, Waxse, Grimm or Peck when it comes to electronically stored information.  Some District Court judges are just now issuing their first ESI opinions, over 2.5 years since the December 2006 Amendments. And for those who have not followed the news, California state judges will now be facing these issues since California enacted its own Civil Discovery Act addressing e-Discovery. Continue reading….

Tip of the hat to Bowtie Law Blogger Joshua Gilliland, Esq.

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