RULES, RULES & MORE RULES!

At the recent annual ABA Technology Show, several presenters conducting e-Discovery sessions made it perfectly clear that big changes are on the way regarding the discovery process, specifically involving electronic data. After several years of discussion and review, a number of changes to the Federal Rules of Civil Procedure have been approved by the United States Supreme Court; unless Congress fails to enact the legislation, the changes will take effect on December 1, 2006.

While not always citing exact language from the new rules, I will provide an overview of concepts and changes to specific rules. The first concept that the presenters repeatedly mentioned is....drum roll please....

PLAY NICE!

While it may be difficult to change a major litigation strategy, cooperation is the new name of the game when it comes to discovery of electronic data. And, speaking of new names, the new term for electronic data is "Electronically Stored Information" or ESI. No matter what you call it though, "adversarial" parties will not be permitted to play some of the usual (or unusual) games at this point of the litigation process.

Some of the major changes occur in Rule 26 and various sub-clauses. These rules concern the meet and confer process and the new rules address many topics, including discussion of disclosure and discovery of ESI, the form(s) in which it will be produced, preservation of evidence and clawback agreements.
During these conferences, it is highly recommended that the parties include senior attorneys, (who are ultimately responsible), other lead inside or outside counsel, senior client managers and key employees, IT managers and subordinates who "know" the systems and finally, e-Discovery experts and vendors. Since this is the stage where the discovery plan is prepared, it makes sense to include all of the above participants, especially when considering the changes to Rule 26(b)(2); these changes address reasonability, cost and "good cause" aspects of sources of ESI.

Also highly suggested by the presenters were two final items regarding the conference process. One, brush up on your knowledge and understanding of technology terms and procedures - you're going to need to know this information to effectively participate in the meet and confer process. Second, document as much information as possible from this entire process, as it may become useful if disputes arise regarding the preparation of and/or agreement on the final discovery plan submitted to the court.

There are many more rule changes, too lengthy to address here. If you want to see the comprehensive report, go to http://www.uscourts.gov/rules/newrules6.html#cv0804.

CITRIX IS A GODSEND

Midwest has added Citrix to its arsenal of resources. The experienced remote coders we have on staff are now able to work live in our system by logging in through the Citrix Server that was set up earlier this year.

Likewise our clients are able to approve productions through Citrix before we send them out on their behalf. This eliminates the need to transfer disks to offices for review - and gives the client an instantaneous reference point. In addition, Citrix allows Midwest and clients to transfer slightly larger amounts of data between sites that could not efficiently be sent via email.

We have also been able to use databases by launching them and managing them on Citrix for the benefit of attorney clients that do not have the desire or IT resources to manage the products in-house.

The combination of services between Midwest Paralegal and Midwest Imaging has afforded many of our clients a closed loop for productions. Dealing with one vendor increases the comfort level when dealing with complicated productions and designations of Confidential and Privileged material.

If you're interested in a one-stop process, contact Ron Kroes, Imaging Manager, at 414-764-2772.