Day 4: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Rule 34 Objections

magnifyingglass_000001973994_First Five QuestionsThe current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Rule 34 Objections

Like the other amendments to the Federal Rules of Civil Procedure, the amendments to Rule 34 seek to expedite the discovery process and encourage parties to communicate earlier about the availability of requested documents and any difficulties or restrictions on their production. In particular, pursuant to the amendments, objections to Rule 34 requests for production must be specific.[1] For example, if a request is overly broad because it calls for all documents relating to a particular subject, such as financial records, counsel should be prepared to discuss the various financial records and which ones should be produced in the matter. Given this, counsel should ask themselves the following questions when responding and objecting to a Rule 34 request. Continue Reading

Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Preservation

magnifyingglass_000001973994_First Five QuestionsThe current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Today we review: Preservation

Preservation is being added to both Rule 16 and 26 as a topic for meet and confers and scheduling orders. But with respect to the duty to preserve, it is the “new and (hopefully) improved” Rule 37(e) that holds a special place in the hearts of those practitioners who have been following its progression. Rule 37(e) as it existed from 2006 through 2015 provided for a limited safe harbor associated with the systematic loss of ESI[1] instead of imposing sanctions. However, determining what behaviors removed parties from that safe harbor became a court-by-court analysis that ran the gamut from negligence to recklessness to outright willfulness. The modified (and streamlined) Rule 37(e) has attempted to simplify that inquiry and is intended to require that, before a court determines sanctions, it is not considering the range of behavior described above. Instead, the court will examine simply whether the “loss involves ESI that ‘should have been preserved’ because the party failed to take ‘reasonable steps’ to prevent the loss of relevant ESI once the duty to preserve [is] triggered.”[2] Subsequently, if the court finds that a party failed to take reasonable steps and there is no alternative replacement evidence, then—and only then—will the court examine whether curative or other sanctions will be awarded under 37(e).[3] This underscores the importance of the required reasonable steps, as well as what it means for organizations to preserve and/or search for alternative evidence in the face of accidental deletion of ESI and other evidence. Both are examined more fully below. Continue Reading

Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case Assessment

magnifyingglass_000001973994_First Five QuestionsThe current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Today we review: Early Case Assessment

Changes to Rules 4, 16, 26, and 34 of the Federal Rules of Civil Procedure are meant to speed up case proceedings and to require counsel to quickly assess the case and what discovery is necessary. Although strategy and views on discovery will certainly change as the case proceeds, the amended rules require a solid assessment of case strategy and discovery issues—particularly electronic discovery—earlier than practitioners may normally be accustomed to. Practitioners who like to take their time should take special note: discovery is moving faster, and attorneys need to keep up. Continue Reading

Day 1: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Proportionality

magnifyingglass_000001973994_First Five QuestionsThe current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Today we start with Proportionality.

One of the purposes of the new amendments to the Federal Rules of Civil Procedure is to again address the problem of over-discovery. The 1983 and 1993 amendments to the Rules attempted to address this problem through an emphasis on proportionality, but found that a practical application was not always forthcoming when even “courts have not always insisted on proportionality when it was warranted.”[1] In particular, the amendments to Rule 26 serve to re-focus the scope of discovery on proportionality—and allowing parties to obtain the documents they truly need to prosecute or defend their case while simultaneously alleviating any unnecessary burdens on the opposing party. Proportionality is one of the central themes to the amendments, and several important questions relating to the effect of the amendments on this topic are addressed below. Continue Reading

December 2015 Changes to the Federal Rules of Civil Procedure: A BakerHostetler Q&A

In this video, E-Discovery Advocacy and Management team leader Karin S. Jenson answers questions raised by clients and colleagues about the December 1 expected changes to the discovery rules of the Federal Rules of Civil Procedure, their potential practical impact, and how to prepare, including:

  • What are the rules changes, and when do they take effect?
  • How will these rules changes impact discovery?
  • What can clients do to prepare for the changes?

Continue Reading

Developing or Enhancing “Bring Your Own Device” Programs – Your First Five Questions . . .

magnifyingglass_000001973994_First Five Questions

This is the second blog post in Discovery Advocate’s new series, “Your First Five Questions,” in which we identify a question commonly (or sometimes not so commonly) seen in practice followed by the first five questions you might ask and why. Have a scenario you’d like us to address? Contact us.

Your client, a multinational whose business involves regular cross-border data transfers, solicits your help with the development and implementation of an effective and compliant “bring your own device” (BYOD) program to address employee use of personal mobile devices for work purposes. What are your first five questions? Continue Reading

Preservation by Backup Tape – Your First Five Questions . . .

magnifyingglass_000001973994_First Five QuestionsThis is the inaugural post in Discovery Advocate’s new series, “Your First Five Questions,” in which we identify a question commonly (or sometimes not so commonly) seen in practice followed by the first five questions you might ask and why. Have a scenario you’d like us to address? Contact us.

Your new client, a Fortune 500 company with a significant litigation portfolio, has suggested that the easiest way to comply with legal hold obligations for 100 custodians potentially at issue in a new false advertising class action is to remove a set of disaster recovery backup tapes from rotation. What are your first five questions? Continue Reading

Preparing for the December 2015 Changes to the Federal Rules of Civil Procedure

The package of changes to the Federal Rules of Civil Procedure presents a powerful opportunity to cut litigation discovery costs, risks and burdens – particularly for skilled legal advocates and businesses that are prepared. And, although the changes are not expected to take effect until December 1, 2015, some courts are already looking to them as the benchmark for discovery best practices.

Watch E-Discovery Advocacy and Management team leader Karin S. Jenson discuss the expected practical impact of the changes and how we are working with our attorneys, clients, and contacts to get ready.

To help companies prepare, BakerHostetler’s E-Discovery Advocacy and Management team is offering in-house or webcast clinics to fully brief legal, business, and IT teams on the intricacies and practical application of the changes. We customize the clinics to cover anything from just the basics – packaged by subject matter, such as how the changes collectively will affect a company’s duty to preserve evidence – to a more in-depth analysis of the disputes we anticipate under the new rules. Click here for our detailed program brochure.

To arrange for a clinic or to learn more about the anticipated rules changes, please contact Karin S. Jenson at kjenson@bakerlaw.com or 212.589.4266.

James Sherer Discusses Cross-border Bring Your Own Device (“BYOD”) eDiscovery and Data Privacy Issues

Counsel James Sherer, co-leader of BakerHostetler’s Information Governance team, sat down with Kroll Ontrack’s Michele Lange and Eric Robinson for a Legal Talk Network ESI Report on 2015 Trade Shows and Trends in E-Discovery.  Sherer discussed trends associated with cross-border Bring Your Own Device (“BYOD”), related data privacy and eDiscovery considerations, and the upcoming amendments to the Federal Rules of Civil Procedure (“FRCP”) amendments.

Listen to the podcast on 2015 Trade Shows and Trends in E-Discovery here.

Sherer had previously joined Legal Talk Network for a podcast on 2015 resolutions in the field of eDiscovery, where he discussed trends in information governance and thoughts on the intersection between eDiscovery and data privacy in an age of growing connectivity.

Listen to the podcast on E-Discovery Goals and Resolutions for 2015 here.

Bring Your Own Device (Everywhere): Legal and Practical Considerations for International BYOD Programs

The cross-use of mobile devices for personal and professional purposes, commonly referred to as “Bring Your Own Device” or “BYOD”, is a relatively recent phenomenon that has created a host of legal and practical challenges for organizations of all sizes. Implementing a BYOD program is especially complex for companies that have employees who regularly travel internationally, taking their devices (and corporate data) along with them when they cross borders.

In a recent article published by the Richmond Journal of Law & Technology, Wherever You Go, There You Are (With Your Mobile Device): Privacy Risks and Legal Complexities Associated with International “Bring Your Own Device” Programs, we provide in-depth analysis of a number of key BYOD considerations, including:

  • Current BYOD adoption rates and trends around the world;
  • The tension between organizational control of mobile devices and employee privacy;
  • Existing laws, regulatory guidance, and jurisprudence applicable to BYOD programs;
  • Concerns associated with BYOD in the eDiscovery context; and
  • Approaches to BYOD in France, Germany, Spain, and the United Kingdom.

The article also provides a detailed list of questions and issues for organizations to consider when developing or improving a BYOD program.  For example, would the organization be better served by a “corporate-owned, personally enabled (“COPE”)” or a “corporate-owned, business-only (“COBO”) strategy?  How will the organization address employee separation and device disposal procedures?  And if the organization has operations in the European Union, how may the forthcoming revisions to the EU Data Protection Regulation impact the company’s BYOD program?  Thoughtful consideration of these and the many other issues discussed in the article should help organizations avoid implementation and compliance problems down the road.

Download a PDF of the article.

Editor’s Note: This blog post is a joint submission with BakerHostetler’s Data Privacy Monitor blog.

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