Posts Tagged ‘FRCP’

Everyone in an organization, especially managing attorneys, need to be aware of and understand their and their company’s responsibilities under the amendments to the federal rules of civil procedure (FRCP) as well as their respective states discovery rules. Any employee can, under specific circumstances, be held personally responsible for destruction of evidence. Now this almost never happen, but knowing what to do with ESI if litigation might or is happening will lower the individual’s as well as the company’s risk and costs.

One of the most painful and risky aspects of the EDRM process is the collection and preservation of uncontrolled custodian ESI on laptops and desktops for ECA and legal hold.

The two blog entries below point out some slightly different views of an interesting case about employee email privacy decided in France on Dec 15, 2009. The case was: Bruno B. vs. Giraud et Migot, Cour de Cassation, Chambre Sociale, Paris, 15 Dec. 2009, No. 07-44264

http://chrisdale.wordpress.com/2010/02/22/the-extent-of-te-right-to-privacy-in-french-employee%E2%80%99s-e-mails/

http://www.hhdataprotection.com/2010/02/articles/litigation/new-french-case-removes-automatic-privacy-shield-from-employee-emails-making-them-more-amenable-to-us-discovery/

There has been an ongoing argument as to the validity of concept search verses keyword search in discovery searches. The main arguments I have seen are:

1. Keyword searches tend to miss relevant documents and are under-inclusive in their search results.
2. Concept searches tend to produce too many non-responsive documents and are considered over-inclusive in their search results.

United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in 2003 and 2004,  on the now very much known case of Zubulake v UBS Warburg.  This case is generally considered the first definitive case in the United States on a wide range of electronic discovery issues. These issues include:

• Data sampling
• The scope of the duty to preserve electronic evidence during the course of the litigation

The revised Rules of Civil Procedure in Ontario Canada now includes Rule 29.2, the proportionality doctrine which states that the right to conduct discovery must be weighed against the time, expense and undue burden the producing party bears. This new rule sounds a great deal like the U.S. FRCP Rule 26(b)(2). The U.S. rule says that information is relevant and discoverable if there is any possibility it may be relevant to the claim. The new Canadian rules say that only information that is truly relevant in the case must be disclosed. The concept is to figure out what ESI is really relevant to the case instead of requiring production of all ESI that could be relevant to the case.

Thomas Allman recently publish an article titled: State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update. In it Tom points out that 23 states have adopted statewide e-discovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure.

Everyone in an organization, especially managing attorneys, need to be aware of and understand their and their company’s responsibilities under the amendments to the federal rules of civil procedure (FRCP) as well as their respective states discovery rules. Any employee can, under specific circumstances, be held personally responsible for destruction of evidence. Now this almost never happen, but knowing what to do with ESI if litigation might or is happening will lower the individual’s as well as the company’s risk and costs.e

California’s newly passed “Electronic Discovery Act” or Assembly Bill #5, now brings California civil litigation eDiscovery into the realm of the Federal Rules of Civil Procedure (FRCP).

Going forward, parties involved in civil litigation and discovery in the state of California have several new requirements to consider in reference to electronically stored information (ESI) including the meet and confer session, accessible verses inaccessible data, format of ESI production among others.