Archive for the ‘Electronic discovery’ Category

I will be speaking on trends in e-discovery at the upcoming Federal Practice Update 2011, co-sponsored by the Federal Bar Association and the CBA Litigation Section.  I hope to be an adequate fill-in for my partner, Karin Jenson, who has an unavoidable client commitment.  In addition to a number of other presentations on a variety of federal practice topics, the afternoon session will highlight a don’t-miss panel presentation of the U.S. District of Colorado Magistrate Judges entitled Pointers for Successful Litigation: The Magistrate Judge’s Role in Your Case.

If you’re interested in attending, here is a link to the event page:


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The Seventh Circuit Court of Appeals has begun implementation of an electronic discovery pilot program, which will be conducted between October 1, 2009 and May 1, 2010.  The program is the result of recommenations of an e-discovery committee of private practitioners, in-house counsel, judges, and e-discovery consultants, “formed to consider what can be done to reduce the costs of electronic discovery, and the costs of discovery and litigation more generally.”  The pilot program is to be guided by a set of e-discovery Principles, which are intended to “incentivize cooperative exchange of information on evidence preservation and discovery.”  A full report on Phase One of the pilot program is available at the Seventh Circuit’s website

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Anyone who practices in the area of class actions is no doubt intimately familiar with the complex issues and potential pitfalls involved in the discovery of electronic data.  As reported by the National Law Journal (through Law.com), Congress has passed legislation designed to create a new Federal Rule of Civil Procedure 502, which is intended to reduce the cost of producing electronic information.  The bill, which President Bush is expected to sign into law, will limit inadvertent waivers of privileged information in discovery in federal court.  Section (d) allows a federal court to order prospectively that no privilege or protection of information is waived by disclosure in connection with a case pending before it, which, as the NLJ article explains, provides a mechanism to exchange e-discovery without having to create voluminous, time consuming privilege logs.  The rule will not be limited to e-discovery, but is motivated by a desire to make litigation less expensive.

The rule will not change parties’ desire to not give an opponent’s lawyers access to sensitive attorney-client or litigation strategy information in the first place, so time will tell whether it has any significant practical impact in reducing litigation costs.

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