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The K&L Gates Electronic Discovery Law Blog Team
A three-year pilot project studying â€œwhether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigationâ€� is now underway in the District of Arizona and the Northern District of Illinois.Â All civil cases in these jurisdictions, except those exempted by the programâ€™s Standing Order, will be subject to the provisions of the program.
As summarized by the N.D. Illinois Users’ Manual (a nearly identifcal summary appears in teh D. Arizona Users’ Manual):
The MDIP Can be described in a nutshell as follows:
(a) The MIDP requires responses to mandatory initial discovery in all civil cases other than those exempted by the Standing Order that implements the MIDP.
(b) The mandatory discovery is framed as court-ordered discovery that must be responded to before the commencement of broader discovery under Rules 26, 30, 31, 33, 34, 35, 36.
(c) The mandatory initial discovery replaces the initial disclosures otherwise required by Rule 26(a)(1).
(d) The parties may not opt out of the requirement to provide the mandatory discovery responses.
(e) The requirement to provide mandatory initial discovery responses includes both favorable and unfavorable information that is relevant to the claims and defenses in the case. This includes claims and defenses asserted by all parties to the litigation, and a responding party must provide relevant information regardless of whether it intends to use the information in presenting its claims or defenses.
(f) Parties must file with the Court a Notice of Service of their initial responses and later supplements, but not the responses or supplements themselves. If there is an unresolved dispute regarding the responses, parties must provide the Court with the responses or supplements at issue to enable the Court to resolve the dispute;
(g) The Court will discuss the mandatory initial discovery with the parties during the case management conference under Rule 16(b)(2), and resolve any disputes regarding compliance with the required discovery; and
(h) MIDP courts will vigorously enforce the requirement to provide mandatory initial discovery responses through the imposition of sanctions if appropriate under the Federal Rules of Civil Procedure.
Notably, the Standing Order includes a provision that directly addresses the production of ESI and mandates, among other things, that the parties confer and attempt to agree “on matters relating toÂ its disclosure and production” including:
i. requirements and limits on the preservation, disclosure, and production of ESI;
ii. appropriate ESI searches, including custodians and search terms, or other use of technology-assisted review; and
iii. the form in which the ESI will be produced.
Explanatory materials are available from both the Federal Judicial Center and the participating jurisdictions, and include the Standing Order, checklists, usersâ€™ manuals, and two video presentations that provide additional information.
A further explanation of the program and links to all written and presentation materials are available here.
Formal Opinion 749
In February, the NY County Lawyers Association Professional Ethics Committee issued Formal Opinion 749, addressing â€œ[a] lawyerâ€™s ethical duty of technological competence with respect to the duty to protect a clientâ€™s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.â€� The committee summarized its detailed analysis as follows:
DIGEST: A lawyerâ€™s ethical duty of competence extends to the manner in which he provides legal services to the client as well as the lawyerâ€™s substantive knowledge of the pertinent areas of law. The duty of competence expands as technological developments become integrated into the practice of law. Lawyers should be aware of the disclosure risks associated with the transmission of client confidential information by electronic means, and should possess the technological knowledge necessary to exercise reasonable care with respect to maintaining client confidentiality and fulfilling e-discovery demands. Further, a lawyerâ€™s duty of competence in a litigation or investigation requires that the lawyer have a sufficient understanding of issues relating to securing, transmitting, and producing electronically stored information (â€œESIâ€�). The duty of technological competence required in a specific engagement will vary depending on the nature of the ESI at issue and the level of technological knowledge required. A lawyer fulfills his or her duty of technological competence if the lawyer possesses the requisite knowledge personally, acquires the requisite knowledge before performance is required, or associates with one or more persons who possess the requisite technological knowledge.
RULES OF PROFESSIONAL CONDUCT: 1.1, 1.6, 5.1, 5.3
A full copy of the committeeâ€™s opinion is available, here.
The Sedona Conference has published revisions to its foundational Sedona Principles, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. As stated in the preface, the Third Edition was “necessitated by an even greater explosion in the volume and diversity of forms of electronically stored information, the constant evolution of technology applied to eDiscovery, and by further amendments to the Federal Rules of Civil Procedure” as well as by many years of experience in e-discovery. Thus, “[t]he Third Edition has been thoroughly updated to take into account evolving views on electronic discovery over the past decade, based upon the collective experiences of the WG1 membership in facing the myriad of practical issues that are influencing the development of the law in this area, the numerous important court decisions across the country, and, of course, the 2015 amendments to the Federal Rules [of] Civil Procedure.”
Interested parties are invited to “join the dialogue and expand the consensus” around the revised principles and may provide comments to the drafting committee until June 30, 2017.
The Sedona Principles, Third Edition is available for download, here.
It seems that predictive coding may be catching on in the UK. Not long ago, the English High Court approved the use of predictive coding for the first time in Pyrrho Investments Ltd v MWB Property Ltd  EWHC 256 (Ch). In that case, the parties agreed to the use of predictive coding software and merely sought approval from the court. Now, The Lawyer (registration required) reports that the High Court has once again weighed in on the issue, this time to approve the use of predictive coding despite the apparent objection of at least one party. This is the first time such an order has been granted. While the details of the order and underlying disagreement have yet to be revealed, the result bodes well for parties seeking to rely on such technology in future.
Stay tuned to this space for more information as it becomes available.