Category Archives: Court rules

In First for UK, High Court Master Approves Use of TAR

Taking his lead from the seminal U.S. case, Da Silva Moore v. Publicis Groupe, a master of Britain’s High Court of Justice has approved the use of technology assisted review, becoming the first case to do so in the United Kingdom and only the second case outside the U.S. to approve TAR.

In a written decision issued Feb. 16, 2016, in the case Pyrrho Investments Ltd. v. MWB Property Ltd., Master Matthews, who is similar in responsibility to a magistrate judge in the U.S. federal court system – provided his reasons for his approval of the parties’ request to use TAR in a case involving some 3.1 million electronic documents. Continue reading

Massachusetts Adopts New Civil Rules Governing E-Discovery


John Adams Courthouse in Boston, home to the Supreme Judicial Court.

My home base of Massachusetts has become the latest state to adopt rules governing the discovery of electronically stored information in civil cases. The new rules, which the Supreme Judicial Court adopted on Sept. 24 and which take effect on Jan. 1, 2014, borrow heavily from the 2006 amendments to the Federal Rules of Civil Procedure, from the Federal Rules of Evidence, and from the 2007 Uniform Rules Relating to the Discovery of Electronically Stored Information developed by the National Conference of Commissioners on Uniform State Laws.

The changes come as amendments to the Massachusetts Rules of Civil Procedure and are applicable to all trial courts in the state. The purpose of the new rules, according to the Reporter’s Notes, was to craft a process that would address Continue reading

Proposed Federal E-Discovery Rules Approved for Public Comment

In a post here in April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. At that point, the Advisory Committee on Civil Rules had just voted to send the proposed changes to the Standing Committee on Rules of Practice and Procedure for consideration at its meeting June 3 and 4 in Washington, D.C.

Now, Milberg lawyer Henry Kelston is reporting at Law Technology News that the Standing Committee has voted to approve for public comment the full package of proposed rules changes. The vote to move the package to the next step took place “with minimal discussion and no significant dissent,” Kelston writes. Continue reading

New Federal E-Discovery Rules Move a Step Closer to Fruition

Changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality in discovery and to standardize sanctions rules came a step closer to fruition last week, as the Advisory Committee on Civil Rules, meeting in Norman, Okla., April 11 and 12, voted to send the proposed changes to the Standing Committee on Rules of Practice and Procedure for consideration at its meeting June 3 and 4 in Washington, D.C.

The package of proposed rules evolved out of the 2010 Duke Civil Litigation Conference, a major two-day conference sponsored by the Advisory Committee that brought together judges, lawyers and academics to explore possible solutions to the rising cost of civil litigation and discovery. Continue reading

Report: Predictive Coding Replaces Sanctions as the Big News in E-Discovery

For the last several years, year-end reports on e-discovery have highlighted sanctions as the lead headline. (For examples from this blog, see Report: Sanction Requests Rise But Awards Hold Steady for 2011 and E-Discovery Sanctions Reach an All-Time High, Survey Finds.) For 2012, however, a different story took the lead spot — the rise of predictive coding.

Such is the conclusion of the 2012 Year-End Electronic Discovery and Information Law Update published by the law firm Gibson Dunn. Continue reading

Proposed Rule Change Would Raise Threshold for Preservation Sanctions

The Advisory Committee on the Federal Rules of Civil Procedure has recommended approval for publication of a new Rule 37(e), governing sanctions for the failure to preserve electronically stored information. The proposed amendment would permit courts to impose sanctions only when the failure to preserve was willful or in bad faith. The proposed amendment is also intended to provide a uniform standard for sanctions to replace the various standards that have evolved across federal Continue reading

Discoverability of Social Media: Two Similar Cases Reach Opposite Results

Judges GavelGiven the popularity of Facebook, Twitter, blogs and the like, it is not surprising that social media are a frequent target of discovery requests. Neither is there any real dispute that, in the proper circumstances, one’s social media activity is discoverable. But what are the circumstances that justify production of social media communications and what limits, if any, apply?

Two recent and strikingly similar cases illustrate that courts are not in accord on the scope of social media discovery. On very similar facts–both involving claims of employment discrimination and emotional distress–the two courts Continue reading

Courts Should Consider Search Technology, Say New Penn. E-Discovery Rules


The Supreme Court of Pennsylvania

The Supreme Court of Pennsylvania has adopted new e-discovery rules that expressly distance federal e-discovery jurisprudence and instead emphasize “traditional principles of proportionality under Pennsylvania law.” Notably, the new rules provide that, when weighing proportionality, parties and courts should consider electronic search and sampling technology, among other factors.

The court promulgated the new e-discovery rules June 6 as amendments to the Pennsylvania Rules of Civil Procedure. They take effect Aug. 1, 2012. Continue reading

An Encyclopedic Review of Federal and State E-Discovery Rules



Thomas Y. Allman

As discovery in litigation evolved from paper to digital, old rules of civil procedure could not keep pace. Thus, in 2006, the Federal Rules of Civil Procedure were revised to specifically addressed e-discovery and electronically stored information. Some are saying that these revised rules are already outmoded, and the federal judiciary’s Rules Committee is in the midst of a comprehensive review to determine whether further changes are needed.

Meanwhile, state courts have written their own e-discovery rules, spurred in part by the federal revisions. As of February 2012, all but 13 states have adopted their own e-discovery rules or were about to. (Just last week, the Supreme Court of Pennsylvania adopted new rules for e-discovery.) Continue reading

New Model E-Discovery Order for Patent Cases Turns Fishing Expeditions into Games of ‘Go Fish’

Two weeks ago in his speech at the East Texas Judicial Conference, Chief Judge Randall R. Rader of the Federal Circuit Court of Appeals announced approval of An E-Discovery Model Order for patent cases. While not the first model order to hit the scene, this one could have far-reaching implications—not only for patent disputes but for other civil cases in federal and state courts.

As Judge Rader explained (and we all know), e-discovery in the digital age has gotten expensive. It turns out the situation is even worse for intellectual property disputes. One study suggested that this class of cases costs 62% more than the norm. At Catalyst, we host a lot of IP cases, so I don’t doubt those numbers one bit. Continue reading