+Mary Mack

Richard Braman, Warrior for Cooperation, 1953-2014

Richard Braman, our spirited warrior for cooperation, has passed away.

Richard created The Sedona Conference®, an oasis for dialogue around advancing the profession of law. All were welcome at his conclaves: plaintiff advocates, defense advocates, academics, judges, service providers, corporate counsel. All were expected to converse in the Sedona manner: respectful, insightful and with an open mind.

Richard’s revolutionary “Cooperation Proclamation” is enveloped in the new amendments to the Federal Rules of Civil Procedure, and emblazoned in court decision after court decision.

Craig Ball paid tribute to the man here:

Perhaps it was Richard’s keen appreciation for jazz—he’d owned a jazz club in Minneapolis—that allowed him to see how discord and harmony could co-exist. I don’t know his inspiration; but, I know he was right.

Ralph Losey on Richard’s impact:

Richard made a big impact on the legal world, especially in e-discovery. He tirelessly promoted legal education conducted in a new way, based on Dialogue, not lecture and argument.

Joe Looby created a movie about the evolution of ediscovery and Richard is featured. His friend and Sedona colleague, Jason Baron says about the film:

It is especially heartwarming that Joe has focused on Richard Braman’s role in advancing the law through The Sedona Conference, especially on the matter of how lawyers can and should cooperate in the context of litigation.”

Heartfelt wishes to his family and friends.

+Mary Mack

Ralph Losey calls for Attorney General Holder to be fired

by Mary Mack

Ralph Losey, one of the most prominent and respected e-Discovery leaders, has called for Attorney General Holder’s to be fired on the front page of his e-discoveryteam.com blog.

We demand that the government stop its illegal e-discovery of U.S. citizens, including, but certainly not limited to, illegal seizure of the records of journalists (such as the seizure of the phone records of twenty AP journalists revealed in 2013, or the surveillance and seizure of the email of Fox News reporter, James Rosen, which was personally approved by Holder himself). Judge Facciola’s Order needs to be both a wake-up call and a turning point.

Judge Facciola’s order is In the Matter of the Search of Information Associated with [redacted]@Mac.com that is Stored at Premises Controlled by Apple, Inc., Magistrate Case. No. 14-228 (JMF) (D.D.C., 3/7/14).

Ralph did some digging and found the opinion, and is hosting it for review.  He writes:

I have seen things like this disappear from the Internet before. But widespread distribution of Judge Facciola’s Opinion, and full publication of its terms, will make that impossible, even for the all-powerful NSA. Click here to download a full copy of the Opinion and share this document, this court order, with as many people as possible. Read it carefully and discuss it with your friends. That is our constitutional right.

While I agree with Ralph that the overreach in surveillance and privacy needs to be rectified, I do not join in his call for Holder’s firing now.

Rather, I call for the executive, legislative and judicial branches to seize the moment to reaffirm our constitutional protections for speech, association and freedom from unreasonable search, seizure, scanning and rummaging around.  I call on businesses, individuals, technical, legal, political, academics, military, security, privacy, marketing and other stakeholders to contribute.  The Obama administration did convene a group on surveillance.  We have Judge Facciola’s rulings related to criminal warrants.  A related issue is Google, Microsoft and other organizations using subscriber data at will according to the fine print in their Terms of Service.  Just this week, Brad Smith, General Counsel of Microsoft, announced that Microsoft reversed their self-help policy and Google’s GC denied opening a tech blogger’s email.

The issue whether we presume all data is up for grabs, or whether there should be a presumption that people’s data should not be accessed without permission or damn good reason.  It’s the damn good reason that is the rub.  How to define, how to request, how to object, how to decide.

It is bigger than government and law enforcement.  It is also commercial.

Should there be a Sedona Working Group?  Should this be part of the Information Governance Initiative?  Maybe it can be done during the rewrite of Safe Harbor, necessary to allow US companies to continue to compete in the EU and other privacy respecting regions.

Ralph is right about (at least) one thing.  Now is the time to raise our voices.

Permalink: http://evidenceinsight.com/losey-holder-resignation/

+Mary Mack

FRCP 37(e) as Totally Rewritten March 2014 (Proposed)

REVISED (Post-Public Comment) RECOMMENDATION OF DISCOVERY SUBCOMMITTEE  Rule 37.  (e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: (1) Order measures no greater than necessary to cure the loss of information, including permitting […]

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+Mary Mack

Facciola: General, exploratory rummaging prohibited by 4th amendment

This time, the government, Twitter and Yahoo are on the spot over a subpoena for electronic data that Judge John Facciola believes is overbroad. Facciola offered Twitter and Yahoo the opportunity to respond before granting the government request–publically. Zoe Tillman from ALM quotes Judge Facciola: Since the government has not taken the hint, the Court […]

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+Mary Mack

FRCP: Notes on changes to the Proposed Amendments

Tomorrow morning (to me) and afternoon to the east coast, I will be talking with Tom Allman about the changes to the Proposed eDiscovery Amendments.  The Agenda Book is 580 pages.  Of single spaced courier font type.  Tom’s distilled it down to about 40, and our slide deck is under 20. After the webcast, I […]

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+Mary Mack

Tom Allman: Proposed FRCP Rule 37(e) on Sanctions, Safe Harbor Dramatically Changed

Tom Allman

The Amendments to the Federal Rules of Civil Procedure took an unexpected turn late last week. The process around amending the eDiscovery Rules in the Federal Rules of Civil Procedure since the Duke Conference has been transparent, deliberative and only slightly heated.  Many of you have submitted written comments or testified live.  The Civil Rules […]

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+Mary Mack

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