Judicial Perspectives on the Proposed FRCP E-Discovery Amendments
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E-Discovery has given rise to numerous legal issues and disputes. One currently dominating the news is FRCP E-Discovery Amendments. To date, vague standards and companies’ concerns about infractions have bred uncertainty and a culture of overprotection, which these amendments should be aimed to correct. This CLE course will explain the proposed amendments, where we currently stand in the process, the specifics of the amendments, the protections they offer, guidelines they establish and how they will address the needs of companies.
Join Magistrate Judge James Francis (S.D.N.Y.), District Judge Paul Grimm (D. Md.) and Chief Magistrate Judge John Ott (N.D. Ala.) to hear their thoughts on the potential effects of proposed changes to the FRCP and the impact they will have on the e-discovery process.
Hon. James C Francis IV
James C. Francis IV has been a United States Magistrate Judge in the Southern District of New York since October 1985. He received his B.A. from Yale College in 1974, his juris doctor degree from the Yale Law School in 1978, and a masters degree in public policy from Harvard University, also in 1978. Following graduation from law school, Judge Francis clerked for the Honorable Robert L. Carter in the Southern District of New York. He then joined the Civil Appeals and Law Reform Unit of the Legal Aid Society where he conducted impact litigation in the areas of housing and education and served as director of the Disability Rights Unit. Judge Francis currently serves as an Adjunct Professor at the Fordham University School of Law where he teaches Constitutional Torts.
In the field of electronic data and the law, Judge Francis is the author of Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002) (allocation of costs), Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004) (obligation to preserve ephemeral data), Treppel v. Biovail Corp, 233 F.R.D. 363 (S.D.N.Y. 2006) (standards for preservation orders), Rozell v. Ross-Holst, 2006 WL 163143 (relevance of e-mails to claim of computer hacking), Treppel, 249 F.R.D. 111 (S.D.N.Y. 2008) (remedies for spoliation of electronically stored information), Richard Greene (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009) (consequences of destruction of electronically stored information), Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010) (prerequisites for spoliation sanctions), Chen-Oster v. Goldman, Sachs & Co., 2012 WL 3964742 S.D.N.Y. 2012) (proportionality, sampling, and phased discovery), and US Bank NA v. PHL Variable Ins. Co. , 2012 WL 5395249 (S.D.N.Y. 2012) (proportionality, cost-shifting, and privilege review).
Scott M. Giordano, Esq.
Scott Giordano, Esq. is an experienced attorney with more than 16 years legal, technology and risk management consulting experience. Holding both Information Security Systems Professional (CISSP) and Certified Information Privacy Professional (CIPP) certifications, Giordano serves as Exterro’s subject matter expert on the intersection of law and technology as it applies to e-discovery, information governance, compliance and risk management issues.
Hon. John Ott
U.S. Chief Magistrate Judge, Northern District of Alabama
Hon. Paul Grimm
Judge Grimm serves as a District Judge for the United States District Court for the District of Maryland. He was appointed to the Court on December 10, 2012. Previously, he was appointed to the Court as a Magistrate Judge in February 1997 and served as Chief Magistrate Judge from 2006 through 2012. In September, 2009 he was appointed by the Chief Justice of the United States to serve as a member of the Advisory Committee for the Federal Rules of Civil Procedure. Additionally, Judge Grimm is an adjunct professor of law at the University of Maryland School of Law, where he teaches evidence, and also has taught trial evidence, pretrial civil procedure, and scientific evidence. He also is an adjunct professor of law at the University of Baltimore School of Law, where he teaches a course regarding the discovery of and pretrial practices associated with electronically stored evidence.
Judge Grimm is a frequent lecturer at CLE programs on issues regarding evidence and civil procedure, and has lectured throughout the United States regarding discovery of electronically stored information and its admissibility in civil and criminal proceedings. He has authored several opinions that have received national attention relating to electronically stored information, including: Thompson v. HUD, 219 F.R.D. 93 (D. Md. 2003) (discussing the factors that govern the scope of discovery of electronically stored evidence, and the duty to preserve such evidence, as well as spoliation sanctions for failure to do so); Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005) (addressing issues of inadvertent waiver of privilege by production of electronically stored evidence with respect to the recent amendments to the Federal Rules of Civil Procedure); Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D. Md. 2007) (comprehensively discussing the evidentiary issues associated with admissibility of electronic evidence); CNA v. Under Armour, Inc. 537 F. Supp. 2d 761 (D. Md. 2008) (discussing the circumstances in which inadvertent disclosure of electronically stored information waives privilege and work product protection); Victor Stanley Corp. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) (also discussing waiver of privilege regarding inadvertent production of electronically stored information, as well as proper methods of conducting search and information retrieval searches for ESI to fulfill preservation, production and privilege review functions); and Mancia v. Mayflower, 253 F.R.D. 354 (D. Md. 2008) (discussing the duty of counsel and parties to cooperate during the pretrial discovery process to reduce the cost and burden of discovery).
He has authored numerous books, book chapters, and articles on these topics. He also is a frequent lecturer at the Maryland Judicial Institute, the continuing education arm of the Maryland State Judiciary, as well as at programs for the ABA, ALI-ABA, and the United States Department of Justice’s National Advocacy Center, where he teaches courses on evidence, civil procedure, and trial advocacy.
In 2002 and 2006 Judge Grimm was awarded the Outstanding Adjunct Professor of the Year Award by the University of Maryland School of Law. In 2001, he was awarded the Maryland Bar Foundation’s Professional Excellence Award for the Advancement of Professional Competence. In 1998, he received the Maryland Institute for Continuing Professional Education of Lawyer’s Distinguished Service Award, and in 2004 he received the Daily Record Leadership in Law Award.
Before becoming a Magistrate Judge, Judge Grimm was in private practice in Baltimore for thirteen years, during which time he handled commercial litigation. He also served as an Assistant Attorney General for the State of Maryland, an Assistant State’s Attorney for Baltimore County, Maryland, and a Captain in the United States Army Judge Advocate General’s Corps. In 2001, Judge Grimm retired as a Lieutenant Colonel from the United States Army Reserve. Judge Grimm is a graduate of the University of California (summa cum laude), and the University of New Mexico School of Law (magna cum laude, Order of the Coif).