Thursday, December 1, 2016
Today marks one year since significant changes were made in 2015 to the original 2006 federal rules for electronic discovery. Federal Rule of Civil Procedure 26(b)1 now emphasizes proportionality and seems to have influenced determining the expense or burden of proposed discovery in a more realistic way. The advent of technology assisted review has also brought costs down and is being employed more frequently by parties and is accepted and even encouraged by courts. My role remains as E-neutral, mediator or sometimes court-appointed special master to facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature private caucuses with retained experts or information technology liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding sanctions and unpredictable judicial outcomes. Cooperation using alternative dispute resolution may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawbacks or agreed confidentiality orders. Rule 37(e) improved the safe harbor for mistakes in deletion, recognizing the volume of data generated is ever increasing and has made preservation more challenging. Sophistication of the parties is still taken into account in reasonable steps taken to initiate holds, but a lawyer's duty of competence in technology in more important than ever. Our E-Discovery & E-Neutral Services can help in that area, providing assistance by hosting Meet and Confer sessions, facilitating cost effective, mutually cooperative, and relevant ESI programs-- even in state court, with Mediated Case Management or Pretrial Stipulations under Florida Civil Rules 1.200 or 1.201. As Special Magsitrates, we are available to monitor E-discovery compliance or perform complex in-camera reviews for which judges don't have time. See more here-- http://www.uww-adr.com/services/e-discovery-and-e-neutral-services/index
Thursday, June 23, 2016
In Palm Beach County, Florida there is a new discovery of electronically stored information (ESI) order waiting for practitioners in cases involving business torts, professional malpractice, antitrust, business transactions, IP, shareholder derivative actions, securities, or trade secret cases. Circuit Court Judge Meenu Sasser of the 15th Judicial Circuit Court has even mandated that within 20 days of the order, the parties are to schedule a “meet and confer” conference which shall occur within 60 days of service of the Order. It is interesting to note that The Florida Bar Civil Rules Standing Committee voted against a federal rules style mandatory meet and confer when I chaired the effort to amend the rules to include ESI. Counsel for the parties are to discuss whether this cases are to be considered complex litigation case, as in Fla. Rule Civ. Pro. 1.201. Topics for the conference include: ESI custodian information; structure of client computer systems, software, devices, and relevant email information; ESI policies; need for an ESI clawback agreement; costs; and whether ESI issues could significantly protract the litigation. Hmm, looks like a call for effective Special Masters or E-Neutrals... See Standing Order effective for new cases starting July 1, 2016 here-- http://15thcircuit.co.palm-beach.fl.us/documents/42596/0/ESI-Order.pdf
Friday, December 11, 2015
I'm pleased to announce that I've been named as one of only 50 attorneys to be honored as The National Law Journal’s 2015 Litigation Trailblazers. I'll be accepting this award at the inaugural reception of all distinguished recipients in New York City next week. “The National Law Journal proudly recognizes the people who have truly ‘moved the needle’ in facilitating the changing ways that law firms conduct business,” says Kenneth A. Gary, the journal’s vice president and group publisher. “Whether it be technological developments, operational efficiencies, marketing and business development breakthroughs or research – we think this list embodies the spirit that will shepherd and shape modern law firms as a business going into 2016 and beyond.” Only in their second year, the litigation awards recognize top legal professionals who have promoted significant change in the way cases are resolved, using inventive techniques or technologies, bringing unique types of cases to court, or executing novel approaches, according to ALM Media Publisher Tom Larranaga. “They have raised the bar in several meaningful ways and are establishing important new standards as the legal landscape continues to evolve,” he said. Winners last year included David Boies, one of Time magazine’s 100 Most Influential People in 2010, and Ted Olson, who was Boies’ opposing counsel in the Supreme Court case Bush v. Gore and a former U.S. solicitor general. This year’s group includes Barry Richard, also of the 2000 presidential election case, and famed national trial lawyer Billy Gunn. I attribute this win to chairing of pioneering efforts to modernize Florida’s civil procedure rules to include electronically stored information and to my innovative work in ADR, specifically promoting the use of E-Neutrals through this blog and other legal publications. My colleague at Upchurch Watson White & Max Mediation Group, Richard Lord, remarked it is "a great honor reflecting Lawrence Kolin’s serious, deliberate and long-term experience and thought leadership in ADR.” See this week's special Litigation Trailblazer publication from The National Law Journal here-- http://pdfserver.amlaw.com/nlj/flipbook/Litigation_TP2015/Litigation_TP2015.html and a full list of all 2015 Trailblazer & Pioneer category winners here-- https://www.eiseverywhere.com/ehome/150001/342183/ Thanks for your continuing support and readership!
Wednesday, December 2, 2015
Yesterday, the long-awaited Federal Rules of Civil Procedure amendments became effective without changes to the proposed language by Congress. These rules mostly pertain to discovery of Electronically Stored Information or ESI-- a concept first introduced into the FRCP in 2006. The changes are essentially outlined as follows:
- Rule 1: The very first rule now specifies that both the court and the parties should interpret the rules to secure just, speedy and inexpensive outcomes.
- Rule 4: Plaintiffs now have only 90 days to serve a defendant after filing the complaint. Of course, courts may still extend the time for service upon a showing of good cause.
- Rule 16: Conferences set under this rule are now 90 days after service or 60 days after an appearance by a defendant, whichever is earlier.
- Rule 26: Scope of discovery substantially changes, requiring that discovery requests be proportional to the needs of the case, as opposed to just reasonably calculated to lead to the discovery of admissible evidence. Courts may now allocate discovery costs. Parties are to discuss preservation of evidence in their discovery plan and may serve document requests before the scheduling conference, having been considered served at the first Rule 26(f) conference.
- Rule 34: Responses to production requests now must state with specificity the grounds for objecting and whether any responsive materials are being withheld on the basis of that objection.
- Rule 37: The proverbial Safe Harbor relating to preservation obligations now lessens a court's power to impose sanctions for failure to preserve information, merely allowing ordering so-called curative measures based on a finding that a party is prejudiced from spoliation of evidence. More severe sanctions, such giving an adverse inference or entering default judgment, are permitted under proposed Rule 37(e)(2), but only after finding a party acted with intent to deprive another party of the information’s use in the litigation.
Tuesday, October 20, 2015
Since 2011, the American Bar Association (ABA) has celebrated “ABA Mediation Week.” The ABA events bolster efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR), which have traditionally celebrated conflict resolution during October. According to the ABA, Mediation Week celebrates strides made in institutionalizing mediation as one of several dispute resolution processes. For many years, Florida has led the field of alternative dispute resolution which has grown in acceptance, especially as litigation has become more costly and lengthy with electronic discovery. There is certainly wide recognition that the majority of cases are resolved outside of the traditional adversarial process. Litigants, their attorneys and the judges they appear before routinely embrace multiple paths to settling lawsuits out of court, including mediation. The theme for this year’s ABA Mediation Week was: Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future. I am pleased to have been featured in the Dispute Resolution Section's Just Resolutions eNews on the subject of ESI Mediation. You can read my article entitled, "Joint Sessions and the Use of E-Neutrals in ESI Disputes" here-- http://www.americanbar.org/content/dam/aba/uncategorized/dispute_resolution/just-resolutions/kolin_joint_sessions.authcheckdam.pdf
Thursday, July 9, 2015
Please join me this month as I've been invited to speak about streamlining electronic discovery at the Masters Conference for Legal Professionals on Tuesday, July 21, in New York City. Having chaired the recent effort to amend Florida Civil Procedure Rules to include e-discovery and previously taught for the state’s Advanced Judicial College, I'll join other industry experts in taking attendees through the life cycle of a complex case. We'll be focusing on fixing problem areas for a more cost-effective approach in a panel discussion titled “How to Streamline E-Discovery,” which runs from 11 am to noon. All eight of the conference’s sessions will take place at New York’s famed Harvard Club. The conference will concentrate on e-discovery, data protection, records management and related topics. “Whether you’re dealing with e-discovery in a new, socially networked world, find your company expanding globally and thus facing international discovery issues, or planning for the future of e-discovery in your firm or company, you know there’s a divide between what is in practice today and where your firm needs to be in the near future,” according to conference organizers. “Legal professionals must develop strategies for spanning this e-discovery divide before it expands further across traditional borders, whether physical or technical.” My emphasis will be on avoiding discovery disputes in the courts through the use of E-Neutrals, Mediated Case Management and Special Masters in culling the universe of information available to parties, in order to let them focus back on the merits of the claims and defenses. For more information about our panel at the Masters Conference, please visit-- http://themastersconference.com/agenda/how-streamline-ediscovery and for the full agenda in New York, see-- http://themastersconference.com/events/new-york-city
Saturday, November 1, 2014
Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in ESI disputes, including serving as an Arbitrator, E-Neutral and Special Master. Please see our E-Discovery Services-- http://www.uww-adr.com/services/e-discovery-services. In this role, I'll keep writing and speaking on implementing innovative methods of ADR, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on my more frequently updated and officially ABA listed "Blawg" at www.abajournal.com/blawg/Orlando_Mediator
For more information on my new firm and scheduling:
For more information on my new firm and scheduling:
Labels: ACEDS, ADR, Case Management, E-Discovery costs, e-discovery mediation, E-Neutral, Early Neutral Evaluation, electronic discovery, ESI disputes, Lawrence Kolin, Special Master, Upchurch Watson White & Max, UWWM