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E-Discovery Rules

Finishing Discovery Right, eDiscovery Competence Series Part 3

The first five of California’s requirements for fulfilling a lawyer’s duty of technology competence for eDiscovery all pertained to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun. The remaining four requirements all pertain to successfully completing actual discovery, including negotiation, collection, search and production of ESI.

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Starting Discovery Right, eDiscovery Competence Series Part 2

California promulgated Formal Opinion No. 2015-193 in 2015, which established a duty of technology competence for eDiscovery and identified nine specific requirements for fulfilling that duty, which have been widely discussed as a useful model for all attorneys. The first five of those requirements all pertain to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun.

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The Evolving Duty of Technology Competence, eDiscovery Competence Series Part 1

In discovery specifically, and in legal practice generally, the role of electronically-stored information (ESI) and new technology has grown exponentially over the past decade. As a result, it has become a practical reality that effective legal practice and effective discovery requires some level of technology literacy and competence, and since 2012, that practical reality has been slowly transforming into a formal requirement.

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Five Key Points from the Sedona Conference Commentary – Proportionality Series, Part 8

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

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The Sedona Conference Commentary on Proportionality – Proportionality Series, Part 7

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

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Key Points from the Case Law Survey – Proportionality Series, Part 6

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

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Cases from 2017 – Proportionality Series, Part 5

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

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Cases from Late 2016 – Proportionality Series, Part 4

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

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Cases from Early 2016 – Proportionality Series, Part 3

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

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A Balm in Gilead – Proportionality Series, Part 2

In January 2016, just a few weeks after the amendments became effective, a court in California had the opportunity to apply the amended rule in Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF (N.D. Cal. Jan. 13, 2016).  This was a patent infringement case in which Merck alleged that Gilead was infringing “two of its patents to a certain kind of nucleoside analog.”  Gilead claimed that “it was the one to conceive and reduce to practice the inventions.” Read to see how the description of the Magistrate Judge’s summation of the proportionality requirement and discussion of recent amendments reflect the intentions of the amendments to elevate and emphasize proportionality as central to determining discovery scope.

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Everything in Moderation, Including Discovery – Proportionality Series, Part 1

On December 1, 2015, the most significant amendments to the Federal Rules of Civil Procedure became effective since the 2006 amendments that made the era of electronically-stored information official.  Among the rules revised was Federal Rule of Civil Procedure (“FRCP”) 26(b)(1), which defines the scope of discovery.  The change brought the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era. So, in the two years since this amendment became effective, has the role of proportionality in discovery actually changed?  How are courts applying the multi-factor proportionality test now enshrined in FRCP 26(b)(1)?  Have objections based on proportionality been successful?

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Privilege, Evolution, and Key Takeaways – Hold On Series, Part 7

In most situations, legal hold notices are communications from an in-house counsel or an outside counsel to employees of an organization, which brief them on a legal situation and the need to hold materials for it.  As such, legal hold notices are typically considered both privileged attorney-client communications (because they are the communication of legal guidance) and protected attorney work product (because they reveal the attorney’s thinking about the matter). In addition to remembering to think about newer sources like mobile devices and social media and about the deliberately-expansive definition of “documents” used by the rules, you must remember that technology is constantly evolving. Until recently, auto-deleting messaging apps did not exist, and now, they are used by 56% of smartphone owners ages 18-29. Technology will continue to leap forward, and legal expectations will follow slowly behind.  You won’t be expected to consider a newer source, until one day you are.

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