“The law of e-discovery has largely been driven by a handful of federal judges who realized early on [that] electronic evidence was going to be a big issue in their courtrooms. Sound Evidence blogger and e-Discovery Corporate Counsel Mary Mark of Fios, says. “Fortunately, some of them have tackled it aggressively and have given guidance to a lot of other courts and judges.” Read some fun facts about one of the pioneering e-Discovery judges,Kansas Magistrate Judge David J. Waxse here.
Connolly Bove Lodge & Hutz partner Kevin F. Brady reviews the latest judicial cautionary advice to counsel to collaborate on formulating the parameters for searching electronically stored information. This article, originally published in BNA’s Digital Discovery & E-Evidence can be found here.
Tues. Feb. 24 — Mary Mack to interview e-discovery/computer forensics expert Craig Ball. Discussion: Recent advancements in e-discovery, data collection and computer forensics, and what the courts and standards bodies are saying about forensics practices and collection protocols. Details and registration info.
This past year saw a wide range of rulings on e-discovery issues and enforcement of The Federal Rules of Civil Procedure. Following are what I believe to be the most influential cases and rulings from 2008:
1. Mancia v. Mayflower Textile Services Co., 2008 WL 4595275 (D. Md. Oct. 15, 2008)
Result: Magistrate Judge Paul Grimm writes that Fed. R. Civ. P. 26(g) requires counsel to cooperate in e-discovery and that failure to do so can be construed as a violation of the duty of “reasonable inquiry” prior to certifying demands or responses. Cited The Sedona Conference® Cooperation Proclamation.
Significance: Influential opinion to jump-start the Cooperation Proclamation; will increase the use andcontinue…
This article, from The Legal Intelligencer, looks at recent court decisions which now seem to demand a standard of near perfection from in-house and outside counsel in managing e-discovery. Indeed, courts are showing little patience for preservation, privilege review or production mistakes and are not hesitating to hold parties and their counsel responsible for such mistakes. Read more….
Judge Grimm’s decision in the Victor Stanley case has a chilling effect on lawyers who craft their own key word searches, absent advice from experts who can provide quality assurance and quality control. Read Craig Ball’s article about it (registration required).
The July 2008 edition of the ABA Journal provides insight into the judicial view of e-discovery: “When electronic discovery disputes get heated in his courtroom, Magistrate Judge David J. Waxse of the U.S. District Court in Kansas has a simple strategy: “If someone comes to me and says, ‘So and so is impossible to deal with and we can’t get a deal done,’ I tell them, ‘Well, videotape the next [discovery conference] and let me watch it to see what’s going on.’
Just the idea that I’ll be watching it seems to put them all on their best behavior and suddenly they have an agreement.”
Slowly but surely, U.S. Magistrate Judge Paul Grimm is writing a treatise on electronic discovery. H. Christopher Boehning and and Daniel J. Toal discuss Judge Grimm’s recent rulings around privilege and his comments on search methodologies in the New York Law Journal.
Federal Magistrate Judge John Facciola is a remarkable fellow….But his most heretical act may be his observation in United States v. O’Keefe, No. 06-249 (D.D.C. Feb. 18, 2008), that keyword search of ESI is a topic “clearly beyond the ken of a layman.” Read more by Craig Ball on Law Technology News & Law.com.