Thursday, December 1, 2016

Anniversary of E-Discovery Amendments

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--

Thursday, June 23, 2016

ESI Orders Go Local in PB FL

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--