Category: Rules

The Ohio State Bar Association held it’s annual convention on May 14-16, 2008, and I was honored to be invited to speak on the topic of “The Internet and Web 2.0 in the Practice of Law.”

Fortunately, my session was in the afternoon, which allowed me to attend a morning session entitled “Developments in Federal Practice: Discovery and Motions” which featured a magnificent panel of federal district judges from around Ohio. The panel was expertly moderated by Elizabeth “Missy” Wright from Thompson Hine LLP and Charles Faruki of Faruki Ireland & Cox P.L.L.

Judge John R. Adams of the Northern District of Ohio started things off by discussing in detail his Case Management Conference Scheduling Order. He lamented how few attorneys that come before him actually read this order. He also repeatedly emphasized that he always prefers to have parties before him that can fully discuss the case. He highly encourages as much dialog about the case as possible and always likes to have folks before him that have full settlement authority.

Judge Adams noted that e-discovery is becoming a much bigger issue in his court today although he commented that the vast majority of issues that arise are summarily resolved by the parties. He also recognized the Default Standard for Discovery of Electronically Stored Information that have been adopted by the Northern District of Ohio.

Judge Adams commented that he has found parties have generally been working together on e-discovery issues although some disagreements inevitably arise. he mentioned that he has appointed a forensic expert in at least one case to look at a hard drive.

Judge Adams stressed that he knows e-discovery issues are coming and they’re just on the horizon. He also stated that he hopes parties continue to work together in this area.

The other judges on the panel contributed some interesting perspectives on contemporary federal discovery and motion practice, but hardly any of them mentioned e-discovery as a primary concern. I wonder if this is because a) the issue never comes up in front of them; b) parties settle their own e-discovery controversies; or c) it’s simply a non-issue.

(The materials from the session are available on this page, but be aware that they are a 13MB PDF.)

Law.com published my article today on software-as-a-service (SaaS) litigation support tools. I generally discuss the concept of SaaS as used in litigation matters and briefly spotlight Lexbe and ImageDepot.

As a result of the article, I found an e-discovery blog that I was not aware of before entitled “The eDiscovery Paradigm Shift” authored by Charles Skamser who is Vice President of Business Development of Trial Solutions, the parent company of ImageDepot. I’m adding Mr. Skamser’s blog to my blogroll, and enourage you to visit. He has an excellent post that links to the U.S. District Courts that have enacted special local rules addressing e-discovery.

Link to article.

I had the good fortune of taking a long vacation right after Thanksgiving, which meant I missed an opportunity to post on the one year anniversary of the so-called “e-discovery amendments” to the Federal Rules of Civil Procedure. These amendments went into effect December 1, 2006 and they have certainly rippled into the litigation landscape over the past year.

While there wasn’t a lot of fanfare about the anniversay (well, I didn’t get invited to any birthday parties), there was a smattering of press releases and information that dribbled around the Web to mark the occasion.

At least two vendors marked the anniversay with surveys. I presume a lot of folks are tired of seeing the constant stream of e-discovery surveys, but they are one of the best ways to get a good grasp of how the litigating world is dealing with the burden of e-discovery. Since so much litigation is understandably conducted behind closed, confidential doors, general surveys help us follow the evolution of e-discovery. (In fact, I’ve now added an “E-Discovery Surveys” category to this blog.)

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Océ Business Services and their CaseData division have published a survey entitled “In Pursuit of Proactive Litigation Preparedness: The Dawn of the Discovery-Ready Enterprise.”

The study was conducted in March & April of 2007 and the results are based on 101 completed surveys - 42% corporate counsel/legal department staff and 58% law firm attorneys/litigation support staff.

Generally, the results mirror what other surveys have found - that a large number of corporations are unprepared to respond to an electronic discovery request. In the Océ Business Services survey, only 10% of in-house counsel consider their company very well prepared to comply with a discovery request for electronic and paper documents, and 55% consider their company NOT well-prepared.

The survey further reports that both corporate and law firm attorneys agreed on five major factors that are important to effectively comply with an e-discovery request:

1. Having a functioning e-discovery response strategy in place
2. Having a well-planned and complete records management program in place
3. Knowing the IT structure of your company/client
4. Consistency in implementing discovery practices
5. Having a legal hold system in place

I enjoy the sections of the survey that examine scenarios such as “The ‘We are unaccountably unprepared’ effect” and “The ‘We agree we must be more committed’ deflection.” Here are some of the more pungent numbers from the survey:

• 33% of corporate counsel frankly state they do NOT understand the FRCP amendments very well
• 50% of large enterprises do not have a fully implemented program to manage records
• 92% of the surveyed companies with record programs are vulnerable when it comes to ESI and preparedness for e-discovery

Link to survey