The Discovery Update – January 2014

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01Jan2014

The Discovery Update – January 2014

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January 2014

From the President

With the beginning of a new year comes new goals for continuing to advance with steady momentum, in what has become a very competitive market for our clients and ourselves.

To help us ensure we are providing you with what you need, please let us know what we can do to improve. Your feedback will help us meet our goal to serve you in the best possible way.

We sincerely value your business.  We wish you the best in 2014, and we hope you and your firm prosper and grow throughout the year.

Best regards,
Sheila Atkinson-Baker

The Psychology of Law and Discovery

By Ralph Losey, e-Discovery Team

Reasonability is a core concept in the law, right up there with the idea of justice itself. It not only permeates negligence law, it underlies discovery law as well. For instance, a party in litigation, and the attorneys representing them, are required to make reasonable efforts to find relevant documents requested. They are required to make efforts that are good enough to be considered reasonable. But lawyers and litigants are not required to make efforts beyond that: not required to make super-human, stellar efforts, and certainly not perfect efforts.

Conversely, litigants and their lawyers are not permitted to make anything less than reasonable efforts to find the information requested. They are not permitted to make sub-standard, negligent efforts, and certainly not grossly negligent efforts. Let us not even talk about intentionally obstructive or defiant efforts. The difference between best practice and malpractice is where the red line of unreasonable negligence is drawn.
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Assessing the Impact of the Newly Proposed Amendments to the Federal Rules of Civil Procedure on the Discovery Process

By Philip Favro, Senior Discovery Counsel, Recommind, Inc.

This will probably sound familiar. Changes are in the works for the rules governing the discovery process that will make discovery more efficient and less costly. Once these changes are in place, matters can finally be litigated on the merits instead of in costly discovery satellite litigation.

This preamble might seem like a repeat of the 2006 amendments to the Federal Rules of Civil Procedure (Federal Rules or Rules). Instead, it describes a new package of proposed amendments to the Rules. Approved for public comment in June 2013 by the Standing Committee on Rules of Practice and Procedure, the draft amendments are generally designed to streamline the federal discovery process, encourage cooperative advocacy among litigants, and eliminate gamesmanship. The Civil Rules Advisory Committee (Committee), which drafted the amendments, has also tried to tackle the continuing problems associated with the preservation of electronically stored information (ESI). As a result of its efforts, the Committee has produced a package of amendments that affects most aspects of federal discovery practice.

In this article, I provide a comprehensive overview of the newly proposed amendments. This includes the changes that are designed to usher in a new era of cooperation, proportionality, and active judicial case management in discovery. I also review the Committee’s re-write of Federal Rule 37(e) and its attempt to create a uniform national standard for discovery sanctions stemming from failures to preserve evidence. I conclude by describing the timeline for moving the amendment package forward.
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THE PSYCHOLOGY OF LAW AND DISCOVERY

ASSESSING THE IMPACT OF THE NEWLY PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE ON THE DISCOVERY PROCESS

COLLECTING GMAIL FOR PRESERVATION

EXPERT DEPOSITIONS – 5 TIPS TO IMPROVE YOUR EFFECTIVENESS

WHAT YOU MIGHT HAVE MISSED

Recognizing Reality with Preserving Social Media ESI

Anonymous Bloggers and the First Amendment: Identifying

John Doe Defendants

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Collecting Gmail for Preservation
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Expert Depositions — 5 Tips to Improve Your Effectiveness
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