eDiscovery is a fast-paced field. The technology that fuels the discipline and its constant expansion of capabilities has had a marked impact on the practice of law. For some time, it’s been possible for lawyers and litigation support teams to avoid keeping up with advances in technology – like predictive coding. But in a few weeks—on December 1, 2015, to be exact—the new rules of Federal Civil Procedure (FRCP) will codify many of these changes and assign sanctions for failing to keep current with the field and take advantage of eDiscovery tools. And yet, even before the FRCP updates occur, courts have issued decisions that continue to challenge the rules of engagement.
To keep up with the breakneck pace of change, we’ve highlighted a couple of articles that showcase these shifts. Keep reading below to find out more.
Jennifer A. Foster, a litigator at Gordon & Rees, LLP, summarizes the pending changes to the Federal Rules of Civil Procedure and explains how these amendments will affect eDiscovery activities as well as practitioners and clients. The article provides context for the introduction of the new rules and explains that they not only intend to speed up eDiscovery (Rule 16) but also to encourage parties to consider proportionality in issuing discovery requests (Rule 26) and to create a uniform standard for the imposition of sanctions when electronically stored information (ESI) is intentionally lost or destroyed (Rule 37).
The rule changes reflect a growing awareness and sophistication among courts about eDiscovery practices and a desire to ensure greater understanding of rules and procedures within the wider legal community. As Foster notes, “[a]t heart, e-discovery is an issue of ethics and one that practitioners and clients must take seriously in order to avoid potentially draconian consequences.”
You can read the entire article here.
Just as the Federal Rules of Civil Procedure are being updated, decisions from federal courts in Oregon and New Mexico provide new insight for strategies relating to preservation, collection and production of information for a matter. In particular, these decisions focus on the role of practitioners—those “responsible for actually searching for documents” and technical specialists.
In the case of the missing emails from Oregon—Grove City Veterinary Service, LLC v. Charter Practice International, LLC—the judge ruled that a defendant who hosted an email account for one of the plaintiffs, a former employee, was not responsible for helping the plaintiff find documents responsive to the defendant’s document requests. Although the plaintiff insisted that the emails were missing, there was no evidence the defendant deleted any of the plaintiff’s emails; thus, there was no obligation for the defendant to assist the plaintiff.
Meanwhile, in New Mexico, the issue of fee shifting for expert services was at stake in the case of General Protecht Group, Inc. v. Leviton Manufacturing Co. Here, the judge ruled that a prevailing party should be entitled to recover the costs of “technical specialists conducting research in the case.” The court opined, “[W]hile technology specialists’ duties are not strictly legal in the traditional sense, the court believes that these technicians provide meaningful value to law firms and, ultimately, clients during litigation; those contributions should not go overlooked.” Moreover, the judge concluded that “[t]o do otherwise would be to allow the case law to lag behind the introduction of document management products and databases in the twenty-first century.”
You can read more here.
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