“Minnesota State and Federal E-Discovery Law Update – A Year of Change” Webinar

A Year of Change

2013 Minnesota State and Federal E-Discovery Law Update

September 9, 2013

Minnesota’s Amended Discovery Rules

PROPORTIONALITY

MORE DISCLOSURE

COLLABORATION AND INFORMALITY

Minnesota Amends Discovery Rules (link)

Amended rules have made proportionality a central guiding principle for all civil litigation in Minnesota.This is based on Civil Justice Reform Task Force recommendations. (link)

Civil Justice Reform Task Force Takeaways:● Discovery big reason for cost of litigation.

(link)

● Changes intended to “create a presumption of narrower discovery and require consideration of proportionality in all discovery matters...” (link)

● discovery & expense threaten the civil justice system; proportionality is probably one of the most important changes. (link)

Rule 1 “just, speedy, and inexpensive” (link)

Responsibility of &

Based on: needs of the case

amount in controversy

parties’ resources

complexity and importance of issues

More Disclosure

Rule 26.02: Narrower Scope of Discovery (link)

Discovery limited to proving or disproving

Claim

Defense OR

Impeaching a witness

More Disclosure

Rule 26.01 -- New Disclosures (link)

Initial Disclosures

Expert Disclosures

Pretrial Disclosures

Rule 37.03: Sanctions for non-disclosure (link)

If party fails to disclose information or witnesses, the court may Preclude information or witness

Money sanction

Inform jury of failure

Order “other appropriate sanctions”

Collaboration and Informality

Rule 26.06 -- Meet and Confer

Parties must meet and confer on discovery

as soon as “practicable” and no more than 30 days after answer due date,

and then file a discovery plan or else risk being sanctioned

Rule 115.04Motions to Compel

Court may resolve motions to compel through an informal telephonic conference with the court.

Minnesota State and Federal Case Law Update

Sanctions

Proposed Amendments to Federal Civil Rules

● These could go into effect in 2015.● In 2010, Duke Conference proposed ideas for

reducing cost and delay in civil litigation.● In April 2013, the Advisory Committee on

Civil Rules submitted a report regarding proposed changes [link].

● In August 2013, the Judicial Conference of the United States submitted a preliminary draft of amendments to the Federal Rules of Civil Procedure [link]. Link to section discussing proposed changes

Default for Discovery Violations

Aviva v. Fingerhut (Jan. 8, 2013)

Takeaways● Discovery mistakes start small, end big.● Attorney’s hands-off approach to difficult

client often backfires.● Once attorney loses credibility with the

court, it is very hard to get it back.

You Gotta Talk! (link to rule)(compare with committee’s proposed changes and comments)

Rule 26(d) -- Meet and Confer (link)(Compare with committee’s proposed changes and comments [link])

Rule 26(g) -- Know the answer

Link to proposed

rule

Link to current rule

Failure to Produce

Fields v. Emmerich (Anoka County District Court, Dec. 11, 2012)Defs intentionally violated duty to disclose and their counsel failed to adequately investigateTakeaways● Rule 26.07 (link) is Rule (link) 11.02 of discovery!● Can’t hide behind a vendor● Can’t hand the wheel to your client

Spoliation

Multifeeder Technology v. British Confectionery (D. Minn. Sept. 18, 2012)Takeaways● Attorneys should use a discovery tool to

prevent rogue client from deleting data.● Lost evidence can be a black box that can

contain whatever the opposing counsel wants it to.

● Might be good idea to bring in a neutral early.

Adverse Inference -- Intentional

Takeaways● Use witness testimony carefully to show

culpable -- or innocent -- state of mind.● Tell opposing counsel what documents you

want preserved -- the sooner, the better.● Consider creative sanctions, such as motions

in limine.

Sherman v. Rinchem (8th Cir. Aug. 6, 2012)

Adverse Inference -- Negligence

Sekisui v. Hart (S.D. NY Aug. 15, 2013) (case infographic [link])

Takeaways● Important that IT and attorneys

communicate.● Make sure what you tell opposing counsel

and the court is correct.● Attempt to quantify and specify what data

was lost.

Attorney’s Discovery Duties

Responding to Requests for Admissions

Bach v. Life Mortgage (Minn. Ct. Appeals, May 6, 2013) (unpublished)

Takeaways● Make sure that you have good grounds to

deny RFA under Rule 36 (link).● A qualified denial is not enough to escape

sanctions.● Responses may have violated Minn. R. Civ.

P. 26.07 (link).

Link to current

rule

Link to proposed

rule

Rule 30(b)(6) Deponent Fail

Aviva Sports v. Fingerhut (D. Minn. July 23, 2013)

Takeaways● A poorly prepared corporate representative

can sink your case.● Difficult clients do not absolve attorney of

duty to court.● “Empty head, pure heart” defense doesn’t cut

it.

Privilege Log

S.E.C. v. Welliver (D. Minn. Oct. 26, 2012)

Delay in raising claim of inadvertent disclosure caused waiver

Scope of Discovery

Compare with committee

proposed rule and comments

Current Rule

Link to current rule Link to proposed rule and comments

Redaction and Relevance

Burris v. Versa Products (D. Minn. Feb. 19, 2013)

Takeaways● Make sure discovery positions are supported

by statute and case law.● Protect confidential info through protective

order rather than redaction.● Taking unreasonable positions alienates the

court.

Link to current rule Link to proposed

rule

Rule 26(c) -- Protective Order, not redaction

Detailed Rule 26(c)

Infographic (link)

Link to current

rule

Link to proposed

rule