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  • "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
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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)




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 degrading the feed, here is the link.  You will need to download RealPlayer for it to work.  I will attempt to live tweet again at @mackmary.  @PBrianSee also live tweeted today.  Search #discovery #duke for the feed.

I’ll be getting up early to hear Judges Scheindlin and Facciola and my friend Tom Allman and their panel on whether the 2006 amendments are working.  A rule change around preservation proportionality will be proposed.

Link to live stream of Duke Conference (active only during sessions):  http://ow.ly/1Jfyt.

Official materials for Duke FRCP meeting: http://ow.ly/1IqxH

Agenda only here: http://ow.ly/1JiE2

Tomorrow’s agenda, all times EST:

Tuesday, May 11, 2010:

8:30-9:45          E-Discovery: Discussion of the Cost Benefit Analysis of

E-Discovery and the Degree to Which the New Rules

are Working or Not

Moderator: Greg Joseph (Joseph, New York)

Participants: Judge Shira Scheindlin (S.D. NY), Magistrate Judge

John Facciola (D. D.C.), John Barkett (Shook Hardy, Florida), Thomas

Allman (retired GC of BASF), Joseph Garrison (Garrison, Connecticut),

Dan Willoughby, Jr. (King & Spalding, Georgia)

9:45-10:30        Settlement: Is the Litigation Process Structured for

Settlement Rather than Trial and Should it Be? Should the

Answers Depend on the Complexity of the Case Including

Whether the Action is a Class Action?

Moderator: Judge Brock Hornby (D. ME)

Participants: Judge Paul Friedman (D. DC), Prof. Richard Nagareda

(Vanderbilt), Prof. Robert Bone (Texas), James Batson (Liddle, New

York), Loren Kieve (Kieve, California), Peter Keisler (Sidley Austin)

10:30-10:45       BREAK

10:45-11:45       Perspectives from the Users of the System: Corporate

General Counsel, Outside Lawyers, Public and Governmental

Lawyers

Moderator: Judge Koeltl

Participants: Alan Morrison (AU), Amy Schulman (Pfizer), Thomas

Gottschalk (Kirkland & Ellis, DC), Ariana Tadler (Milberg, New York),

Anthony West (DOJ, Civil Division), Joseph Sellers (Cohen, DC)

11:45-1:00        Perspectives from the States: Different Solutions for Common

Problems and their Relative Effectiveness – This Panel Should

Also Consider the Results of Any Pilot Programs by the IAALS

Moderator: Justice Andrew Hurwitz (Arizona)

Participants: Judge Kourlis, Paula Hannaford-Agar (National Conf.

for State Courts), Prof. Seymour Moskowitz (Valparaiso), William

Maledon (Osborn, Arizona), Judge Henry Kantor (Oregon)

1:00-1:30           LUNCH

1:30-2:00           Speaker: Chief Judge Holderman (N.D. IL)

2:00-3:15           The Bar Association Proposals: ACTL, ABA Litigation Section,

NYCBA, AAJ, LCJ, DRI

Moderator: Lorna Schofield

Participants: Lorna Schofield, David Beck (ACTL), Wendy Schwartz

(NYCBA), Bruce Parker (DRI, LCJ), John Vail (AAJ)

3:15-4:30           Observations from Those Involved in the Rule Making

Process Over the Years

Moderator: Dean Levi (Duke)

Participants: Judge Scirica (3rd Circuit), Judge Higginbotham, Prof.

Paul Carrington (Duke), Prof. Dan Coquillette (Harvard/Boston

College), Prof. Arthur Miller (NYU)

4:30-5:00         Summary and Conclusions: Judge Rosenthal, Judge Kravitz,

Prof. Edward Cooper (Michigan), and Prof. Rick Marcus (Hastings)


One Response to “Federal Rules of Civil Procedure (FRCP) Duke Conference Day 1”

  1. The Duke Civil Litigation Conference: Round-up of Coverage | Catalyst E-Discovery Blog Says:

    [...] her blog Sound Evidence, Mary Mack, corporate technology counsel for Fios Inc., posted summaries of day one and day two of the conference, based on watching the live stream. Gabe Acevedo, author of the [...]

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