+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)


 Rule 37. 


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 additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A)               presume that the lost information was unfavorable to the party;

(B)               instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)               dismiss the action or enter a default judgment.

[(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A)               the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B)               the reasonableness of the party’s efforts to preserve the information;

(C)               the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D)               whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.]

See Current 37 (e) Failure to Provide Electronically Stored Information below:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

+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 will be more explicit: the government needs to provide a sophisticated technical overview of how it plans to conduct the search,” Facciola wrote. “It need not be overly detailed—the Court is not asking for a list of search terms—but the overview must provide this Court with sufficient information such that it will not be authorizing the ‘general, exploratory rummaging in a person’s belongings’ that the Fourth Amendment prohibits.”


+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 will post here with some additional links, including to Tom’s paper.  He spent the better part of last weekend revising it due to the total rewrite of what many consider the lynchpin of the new amendments, Rule 37(e).

I’ve made myself a few notes outside of the 37(e) sanctions/curative measures discussion where we will spend most of our time.


1.  Proportionality moves to 26(b)(1) from 26(b)(2)(C)(iii)
the parties’ relative access to relevant information added as a factor

cost moved to number 2, after importance of the issues

2.   26(c)(2) includes “the allocation of expenses” in a protective order for production

Discovery Plans:

On the one hand, the changes remind about the “get out of jail free” card for inadvertent production afforded by FRE 502 protection, and on the other hand, explicitly call out preservation as an item to be included in the scheduling order.

3.    26(f)(3)(C) includes any issues about disclosure, or discovery, or preservation of electronically stored information,
including the form or forms in which it should be produced;

4.     26(f)(3)(D) whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502

Time Limits:

5.   All new limits are out, except for the soul crushing 7 hour deposition reduction to 6 hours.

Committee Notes Changes:(underline is new language, bold is mine):
A portion of present Rule 26(b)(1) is omitted from the proposed revision. After allowing discovery of any matter relevant to any party’s claim or defense, the present rule adds: “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. The discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case. Framing intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.
The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Re: Protective orders allowing allocation of costs:
Recognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.
+Mary Mack

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

The Amendments to the Federal Rules of Civil Procedure took an unexpected turn late last week.

Tom Allman

Tom Allman

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 Advisory Committee has just issued their Agenda Book for the meeting in Portland April 10-11, 2014.

Some of the surprises:  a total rewrite of the proposed amendment FRCP Rule 37(e), formerly on sanction limitation and preservation, and removal of presumptive limits.  The limitations on scope survived intact.

Tom Allman and I will be discussing the “amended amendments” with a view toward what is likely to happen in Portland (revise, republish, approve) and the impacts on the eDiscovery community and the people and organizations we serve.

The complementary webcast, Tom Allman on Federal Rules Amendments (FRCP) in the Final Stages, is sponsored by ZyLAB (my employer) and hosted by ACEDS.

Date:  March 25, 2014 at 1PM EST.  Register here.



+Mary Mack

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