Friday, December 11, 2015

Lawrence Kolin Named National Law Journal Trailblazer

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-- and a full list of all 2015 Trailblazer &  Pioneer category winners here-- Thanks for your continuing support and readership!

Wednesday, December 2, 2015

Federal Rules Amendments on Electronic Discovery Effective

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.
Of course, despite a new emphasis on cooperation and proportionality, we expect to see continuing E-Discovery skirmishes. The use of confidential mediation for the resolution of such disputes by E-Neutrals is encouraged if the parties and counsel cannot settle the entire matter. Getting back to the merits is the goal of this process and these new discovery rules. Until there are orders applying these and some new FRDs reported, it remains to be seen how they will impact litigation in the federal courts. See more on this development here-- and