“minnesota state and federal e-discovery law update – a year of change” webinar
DESCRIPTION
The panel provided an update about the most significant changes in e-discovery over the past year. The webinar was sponsored by Minnesota Continuing Legal Education (http://tinyurl.com/mxdfhov). Panel – Mike Unger; Unger Law Office – Mary T. Novacheck; Bowman and Brooke LLP – Brendan M. Kenny; Blackwell Burke PA – Katherine T. Kelly; Heins Mills & Olson, P.L.C. A special thanks to James Keuning for creating most of the infographics used in the presentation. James's work can be found on his personal website (http://www.fishandink.com) and on the LuciData blog (http://www.lucidatainc.com/blog).TRANSCRIPT
A Year of Change
2013 Minnesota State and Federal E-Discovery Law Update
September 9, 2013
Minnesota’s Amended Discovery Rules
PROPORTIONALITY
MORE DISCLOSURE
COLLABORATION AND INFORMALITY
Minnesota Amends Discovery Rules (link)
Amended rules have made proportionality a central guiding principle for all civil litigation in Minnesota.This is based on Civil Justice Reform Task Force recommendations. (link)
Civil Justice Reform Task Force Takeaways:● Discovery big reason for cost of litigation.
(link)
● Changes intended to “create a presumption of narrower discovery and require consideration of proportionality in all discovery matters...” (link)
● discovery & expense threaten the civil justice system; proportionality is probably one of the most important changes. (link)
Rule 1 “just, speedy, and inexpensive” (link)
Responsibility of &
Based on: needs of the case
amount in controversy
parties’ resources
complexity and importance of issues
More Disclosure
Rule 26.02: Narrower Scope of Discovery (link)
Discovery limited to proving or disproving
Claim
Defense OR
Impeaching a witness
More Disclosure
Rule 26.01 -- New Disclosures (link)
Initial Disclosures
Expert Disclosures
Pretrial Disclosures
Rule 37.03: Sanctions for non-disclosure (link)
If party fails to disclose information or witnesses, the court may Preclude information or witness
Money sanction
Inform jury of failure
Order “other appropriate sanctions”
Collaboration and Informality
Rule 26.06 -- Meet and Confer
Parties must meet and confer on discovery
as soon as “practicable” and no more than 30 days after answer due date,
and then file a discovery plan or else risk being sanctioned
Rule 115.04Motions to Compel
Court may resolve motions to compel through an informal telephonic conference with the court.
Minnesota State and Federal Case Law Update
Sanctions
Proposed Amendments to Federal Civil Rules
● These could go into effect in 2015.● In 2010, Duke Conference proposed ideas for
reducing cost and delay in civil litigation.● In April 2013, the Advisory Committee on
Civil Rules submitted a report regarding proposed changes [link].
● In August 2013, the Judicial Conference of the United States submitted a preliminary draft of amendments to the Federal Rules of Civil Procedure [link]. Link to section discussing proposed changes
Default for Discovery Violations
Aviva v. Fingerhut (Jan. 8, 2013)
Takeaways● Discovery mistakes start small, end big.● Attorney’s hands-off approach to difficult
client often backfires.● Once attorney loses credibility with the
court, it is very hard to get it back.
You Gotta Talk! (link to rule)(compare with committee’s proposed changes and comments)
Rule 26(d) -- Meet and Confer (link)(Compare with committee’s proposed changes and comments [link])
Rule 26(g) -- Know the answer
Link to proposed
rule
Link to current rule
Failure to Produce
Fields v. Emmerich (Anoka County District Court, Dec. 11, 2012)Defs intentionally violated duty to disclose and their counsel failed to adequately investigateTakeaways● Rule 26.07 (link) is Rule (link) 11.02 of discovery!● Can’t hide behind a vendor● Can’t hand the wheel to your client
Spoliation
Multifeeder Technology v. British Confectionery (D. Minn. Sept. 18, 2012)Takeaways● Attorneys should use a discovery tool to
prevent rogue client from deleting data.● Lost evidence can be a black box that can
contain whatever the opposing counsel wants it to.
● Might be good idea to bring in a neutral early.
Adverse Inference -- Intentional
Takeaways● Use witness testimony carefully to show
culpable -- or innocent -- state of mind.● Tell opposing counsel what documents you
want preserved -- the sooner, the better.● Consider creative sanctions, such as motions
in limine.
Sherman v. Rinchem (8th Cir. Aug. 6, 2012)
Adverse Inference -- Negligence
Sekisui v. Hart (S.D. NY Aug. 15, 2013) (case infographic [link])
Takeaways● Important that IT and attorneys
communicate.● Make sure what you tell opposing counsel
and the court is correct.● Attempt to quantify and specify what data
was lost.
Attorney’s Discovery Duties
Responding to Requests for Admissions
Bach v. Life Mortgage (Minn. Ct. Appeals, May 6, 2013) (unpublished)
Takeaways● Make sure that you have good grounds to
deny RFA under Rule 36 (link).● A qualified denial is not enough to escape
sanctions.● Responses may have violated Minn. R. Civ.
P. 26.07 (link).
Link to current
rule
Link to proposed
rule
Rule 30(b)(6) Deponent Fail
Aviva Sports v. Fingerhut (D. Minn. July 23, 2013)
Takeaways● A poorly prepared corporate representative
can sink your case.● Difficult clients do not absolve attorney of
duty to court.● “Empty head, pure heart” defense doesn’t cut
it.
Privilege Log
S.E.C. v. Welliver (D. Minn. Oct. 26, 2012)
Delay in raising claim of inadvertent disclosure caused waiver
Scope of Discovery
Compare with committee
proposed rule and comments
Current Rule
Link to current rule Link to proposed rule and comments
Redaction and Relevance
Burris v. Versa Products (D. Minn. Feb. 19, 2013)
Takeaways● Make sure discovery positions are supported
by statute and case law.● Protect confidential info through protective
order rather than redaction.● Taking unreasonable positions alienates the
court.
Link to current rule Link to proposed
rule
Rule 26(c) -- Protective Order, not redaction
Detailed Rule 26(c)
Infographic (link)
Link to current
rule
Link to proposed
rule