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  • "[T]hrowing the Laptop Off a Building; Running Over the Laptop with a Vehicle; and Stating 'If This Gets Us into Trouble, I Hope We're Prison Buddies,' Unquestionably Demonstrate Bad Faith."

(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, separate sets of rules for complex cases and what kind of judicial management is desired (trier of fact or magistrate/ADR).

The Standing Committee will be reporting out to the Chief Justice regarding specific steps sparked by this conference.  The Civil Rules Committee will meet in June to capitalize on the momentum generated by this conference.  The Federal Judicial Center (FJC) is already creating workshops, pilot projects and other “opportunities for learning” for new and experienced judges.  The FJC is also surveying the impact of Twombly and Iqbal (fact pleading cases) on current and recent cases.

Judge Lee Rosenthal summed up the session for the extraordinary event it was.  A group of seasoned lawyers, jurists, academics, stewards of Bar groups from both sides of the aisle, the DOJ and staff members from the House and Senate Judiciary Committees gathered to solve problems in our procedures.  Preparation included a wide variety of workshops, discussions and disciplined empirical research.  The result was a tight, lively (for the most part) exposition and inquiry by some of the nation’s finest minds and hearts.

It was streamed, it was spirited and it was collaborative. It was a demonstration of the best of a self regulating profession.  Even the judges were advancing measures for their own accountability.  There was a degree of mastery, professionalism and civility shared amongst colleagues and adversaries.

Today, even the breaks were streamed.  Brian See (pBrianSee) and I tweeted parts of the conference with the tags #ediscovery #duke.

Fios will host a webcast with Maura Grossman and Bill Butterfield to get their bird’s eye view of the proceedings on June 2, 2010 at 1pm EST/10 AM EST.  Register for the webcast here.

Yesterday’s proceedings here.


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