New Federal Rules Amendments Now Effective

Last week, the long-awaited Federal Rules of Civil Procedure amendments became effective without changes to the proposed language by Congress. These rules importantly pertain to discovery of Electronically Stored Information or ESI-- a concept first introduced into the FRCP in 2006. The changes are essentially outlined as follows: Rule 1: The very first rule now specifies that both the court and the parties should interpret the rules to secure just, speedy and inexpensive outcomes. Rule 4: Plaintiffs now have only 90 days to serve a defendant after filing the complaint. Of course, courts may still extend the time for service upon a showing of good cause. Rule 16: Conferences set under this rule are now 90 days after service or 60 days after an appearance by a defendant, whichever is earlier. Rule 26: Scope of discovery substantially changes, requiring that discovery requests be proportional to the needs of the case, as opposed to just reasonably calculated to lead to the discovery of admissible evidence. Courts may now allocate discovery costs. Parties are to discuss preservation of evidence in their discovery plan and may serve document requests before the scheduling conference, having been considered served at the first Rule 26(f) conference. Rule 34: Responses to production requests now must state with specificity the grounds for objecting and whether any responsive materials are being withheld on the basis of that objection. Rule 37: The proverbial Safe Harbor relating to preservation obligations now lessens a court's power to impose sanctions for failure to preserve information, merely allowing ordering so-called curative measures based on a finding that a party is prejudiced from spoliation of evidence. More severe sanctions, such giving an adverse inference or entering default judgment, are permitted under proposed Rule 37(e)(2), but only after finding a party acted with intent to deprive another party of the information’s use in the litigation. Of course, despite a new emphasis on cooperation and proportionality, continuing E-Discovery skirmishes are expected. The use of confidential mediation for the resolution of such disputes by E-Neutrals is encouraged if the parties and counsel cannot settle the entire matter. E-Neutrals are mediators specializing in complex cases involving electronic evidence who can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of risks and perhaps dissuading them from merely using E-Discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. Getting back to the merits is the goal of this process and these new discovery rules. Until there are orders applying these amendments and some new FRDs reported, it remains to be seen how they will impact litigation in the federal courts. See more on this development here-- http://www.bna.com/new-rules-civil-n57982064088/ and https://www.law.cornell.edu/rules/frcp

Judge Lucy Koh Questions Tech Class Settlement

Major technology companies recently agreed to settle a class-action lawsuit in which 64,000 employees accused them of conspiring not to recruit each other's workers, suppressing compensation. The case alleged an inner circle of Silicon Valley executives communicated during a period when the interoperability of companies' products was often discussed. Embarrassing emails between company executives surfacing during E-discovery played a role in the settlement, with four tech companies agreeing to pay plaintiffs $324.5 million. Plaintiffs had planned to ask for about $3 billion in damages at trial, which could have been trebled under antitrust law. Last week, Judge Koh told plaintiffs during a hearing that they had leverage going into trial against the defendants, given the strength of emails showing former CEOs, such as Apple's Steve Jobs and Google's Eric Schmidt, were planning to enforce their no-poaching agreement. Reportedly, Judge Koh had concerns about whether the amount is really fair to the class and deferred a decision about whether to approve the deal. Though Plaintiffs' attorney said the workers faced serious risks on appeal all the way up, Judge Koh was skeptical the Supreme Court would get involved by further restricting class actions. She has previously approved separate settlements totaling $20 million reached by Disney's Lucasfilm and Pixar units, and Intuit. Apple, Google, Intel and Adobe are paying a higher premium to settle this case than Disney and Intuit did, as calculated by the number of employees from each company in the class. Avoiding executives appearing on the witness stand made a settlement attractive. The civil case followed a 2010 Justice Department case on the same matter. Trial was set to begin last month in California. See story here-- http://reut.rs/1q5cB3Y

E-Service and E-Filing to be mandatory in FL

In a pair of opinions, the Supreme Court of Florida formally adopted proposed amendments to the Florida rules of court to implement mandatory electronic filing procedures for all documents filed in Florida’s courts. The proposed amendments represent a significant and important step toward the goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing or e-filing. Also in furtherance of this goal, in a separate, related case the justices adopted amendments to the rules of court to require e-mail service of pleadings and documents between parties. All 67 county clerks of court have been directed to be prepared to accept e-filings through the statewide e-portal in the civil divisions by July 1, 2012-- but a subsequent filing by the E-Filing Authority indicates several clerks are still experiencing difficulties that would prevent them from accepting electronic filings on that date. Any clerk may submit a request with the Florida Supreme Court to delay the effective date of these rules in any division or court. If such a request is granted, an Administrative Order will be issued and published. However, mandatory e-service under Florida Rule of Judicial Administration 2.516 will begin July 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. Given the delay from oral argument last year to passage of these e-rules, it is possible electronic discovery rule amendments in Florida argued earlier this year may be adopted later than expected. That would be consistent with comments made regarding the need for educating the bench and bar on the proposals to include ESI in existing civil rules. See full opinions here - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf and http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf UPDATE: 6/26/12 - Florida Supreme Court sua sponte amends its opinion to change the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101_Order_06-26-2012.pdf SECOND CORRECTED OPINION: 6/28/12 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf