The first issue is that unless the code at hand is “open source,” is it typically a trade secret. Most of the major tech companies depend on a closed source business model, in which a user purchases the right to use the software rather than the software itself. While it is obvious that such a model may greatly increase the profitability of the software, it may also be used for security reasons. The second issue is that source code, while readable by a human expert, may comprise millions of individual lines, corresponding to thousands of printed pages. Trying to find a few lines amongst all of this chaos presents substantial discovery challenges.

Delaware’s Default Standard for Access to Source Code addresses both of these issues. In order to preserve as much confidentiality as possible, a single copy of the source or executable code would be located on a single password protected computer provided by the originator of the code. The computer would be located with an independent escrow agent and access restricted to two outside counsel and two experts from the requesting party. Furthermore, the code may not be printed unless it is agreed upon by the parties or ordered by the court. These provisions help ensure that when it is necessary to provide source code for discovery purposes during litigation (patent or otherwise), the software will be protected.

What the standard does not address is that electronic access may be necessary during deposition, and that some selected printouts may be required early during the litigation process. Another concern is that source code is frequently updated and it may be necessary to choose a single representative version of the software to use. Individual courts may enact protective models that draw much of their content from Delaware’s standard while also including material that allows for greater flexibility.

For those who lack familiarity with how the US legal system regards torture, a short background:

Since at least the 1890s, the US Supreme Court has held that torture of American citizens is unconstitutional, because it violates the Eighth Amendment, which prohibits the use of “cruel and unusual” punishments. Torture is also prohibited under Title 18 of the United States Code, §2340. As defined under United States Code, torture is an act that is designed to inflict severe physical or mental pain or suffering. Despite the protections against torture afforded to criminals by both the Constitution and the United States Code, the Military Commissions Act of 2006 authorized “enemy combatants” to be held indefinitely without judicial review under the terms of habeus corpus, and for military tribunals to be held of these persons.

Under the act, techniques used to extract evidence from enemy combatants are not limited by the Geneva Conventions and can be used in the military tribunals. In essence, the act permits torture, as long as the person being tortured is defined as an unlawful enemy combatant, either because they have committed acts of violence against America – without being part of a state recognized and organized belligerent group – or because they have been declared as such by a Combatant Status Review Tribunal or another tribunal. These tribunals are directly established by the president.

After being arrested on May 9^th 2002, Mr. Padilla was originally detained, and then classified as an enemy combatant by President Bush on June 9^th; at that point, he was taken to a military brig in South Carolina under high secrecy. However, because of the fact that Mr. Padilla was and is an American citizen, the provisions of the Military Commissions Act of 2006 do not apply, since the act only discusses the alien unlawful enemy combatants. Nevertheless, Mr. Yoo drafted three memos, each approved by Assistant Attorney General Jay Bybee, a member of the Ninth Circuit since 2003, that interrogation tactics such as sleep deprivation, stress positions, waterboarding, and other techniques commonly regarded as torture were permissible. In order to justify this conclusion, the language of Title 18 §2340 was examined in the most minute detail.

In 2009, U.S. District Judge Jeffrey White of San Francisco ruled against Mr. Yoo, and opened the door for him to be personally sued by Mr. Padilla for authoring the so-called “Torture Memos.” The Ninth Circuit’s reversal of this ruling was celebrated yesterday by Mr. Yoo himself in an article in the Wall Street Journal. In the article, Mr. Yoo paints a dire picture of justice gone amuck, with presidentially supported legal investigations brought by terrorists penetrating the highest levels of the government as the consequence of a ruling in Mr. Padilla’s favor. However, others are less complimentary. A website called FIRE JOHN YOO! is the 5^th Google result for his name, and criticizes, among other things, the “cover your as*” legal reasoning used to protect Mr. Yoo.

The controversy stirred up by this ruling is unlikely to die down anytime soon, with various high profile names alternately affirming and condemning the decision. It certainly raises big ethical questions, both for the legal field and for the general American public and the government which represents them. Is “torture” a relative or absolute term? How do we handle terrorist threats which originate from our own soil? When does a citizen cede their rights, if ever? Who can and/or should be held responsible for these decisions? While the case has been settled, these questions will surely resonate within the fabric of the justice system, the military, the government, and American culture at large for quite some time.

So what does CISPA allow, in the name of increasing internet security and thwarting the efforts of cyber criminals? Private companies – read internet service providers and online entities such as Facebook – and agencies of the U.S. government – both military and intelligence – would be able to freely share any information that could be judged as relating to “cyber threats.” Companies who share private information would be protected from any liability for doing so as long as the data shared falls under the umbrellas of cyber security or national security. Furthermore, companies are not required to remove sensitive details from the information they share. All of this adds up to a bill that organizations such as the ACLU say could violate the Fourth Amendment, which protects citizens against unlawful searches and seizures.

The main problem with CISPA is that cyber threats and cyber security are both ill-defined terms. Overly broad language throughout the bill increases the likelihood that it will be abused and misused and that ordinary, law abiding internet users could have their confidential information placed in the hands of powerful governmental military and security agencies such as the NSA. Some proposed amendments would narrow the scope of the bill as well as placing limits on the type and amount of data collected; whether any of these amendments will pass in currently unclear. Another issue with the current incarnation of CISPA is that information may be retained indefinitely once gathered and distributed. In many ways, CISPA is analogous to the infamous Patriot Act, passed in the wake of September 11^th with immense public support but reviled after closer examination.

Before dismissing CISPA entirely, its potential upsides need to be examined. By removing barriers to the flow of data related to internet security, private corporations would be able to collaborate without fear of liability to identify and eliminate vulnerabilities and flaws in their security plans. This could potentially increase the efficiency and effectiveness of response to security threats, ultimately benefiting the end users of online products and services. Companies such as Facebook and Microsoft have thrown their support behind CISPA for this reason. There could also be national security benefits. However, the general consensus appears to be that the potential for abuse and misuse of CISPA is currently too great, and that a serious reworking of the bill would be necessary for it to pass into law. President Obama has promised to veto the measure if it passes the Senate and ends up on his desk.

In the Senate, CISPA will go up against other internet security acts proposed by Sen. Joe Lieberman and Sen. John McCain. Whether or not vocal online protest and comparisons to SOPA will stop it remains to be seen.

Mr. Cicero brought these allegations to Maritza Munich, then the general counsel of Wal-Mart, in 2005. As general counsel, Ms. Munich had implemented rigorous anticorruption protocols just a year earlier, in 2004. After Mr. Cicero and Ms. Munich met, an internal investigation was triggered, a move typical of how such matters are usually handled. However, after first hiring an independent law firm to lead the investigation, Wal-Mart chose to go it alone and keep all efforts internal, confined to the privacy of the company.

To make a very long story short, the investigative efforts did not result in any consequences for those involved in the under the table transactions that propelled Wal-Mart de Mexico into its current position as the largest private employer in all of Mexico. Blame was put onto Mr. Cicero, who has been depicted as a spiteful former employee who had profited from the system of bribery. Wal-Mart only disclosed the allegations to the DOJ and SEC at the end of 2011, when it informed the organizations that it had initiated an internal investigation into potential violations of the Foreign Corrupt Practices Act (FCPA). The FCPA makes a distinction between “grease” payments, which are paid to government officials in order to expedite services that they were already obligated to perform, and bribery. Bribery entails payments that influence a government official to act in violation of his or her duty, or give an unfair advantage.

Under the FCPA, grease payments may be legal, if they are legal in the country that they occurred in. This is because, unlike a bribe, a facilitating payment only influencing the timing of a legal event or action, rather than whether or not it occurs at all. Determining whether or not a particular transaction is a facilitating payment or a bribe may be difficult, if not impossible, especially if there is no conclusive paper trail. However, many countries do not differentiate between the two; Mexico is one such country.

Regardless of the fact that they are illegal in Mexico, facilitating payments are commonplace. This discrepancy between typical cultural and business practice and the letter of the law complicates the already difficult process of international expansion. Scholars of business ethics are divided on how appropriate such payments are. Some arguments against them include that they are unfair to small businesses that are unable to participate due to lack of opportunity and financial constraints and that they create excess risk and discourage investment because they are inherently unpredictable. In contrast, some argue that where they are a routine part of the business culture, it negatively impacts the company and keeps them from competing effectively with businesses that do choose to “play the game,” so to speak.

Legally speaking, companies also have to grapple with the fact that the provisions of the FCPA are not always clear. In her article, Great Expectations for Forthcoming FCPA Compliance, Alexandra Wrage states that, “Compliance is subtle and judgment-laden. In the end, compliance counsel must make decisions based on very specific—and often complicated—confluences of facts.” Phrases like, “due diligence,” “all necessary precautions,” and “corrupt intent” pepper the official layperson’s guide to the FCPA, published by the DOJ. Often, clarity only exists in the most extreme circumstances, where every person, every time, would come to the same conclusion.

For example: the CEO of a company gives the president of a foreign country a 50 million dollar payment so he changes the law and allows the company exclusive operating rights. It would take a miracle for this to be interpreted as any other action except bribery. However, the business decisions that must be made every day, often at a lightening fast pace, are hardly ever this cut and dried. In multi-national corporations with complex, decentralized operating structures, the number of tricky compliance issues multiplies exponentially.

The Wal-Mart de Mexico drama also serves to highlight the central roles of lawyers in this and other similar cases. When people think of fraud, they usually picture company accountants and other financial personnel either cooking the books, acting as whistleblowers, or sometimes both. While the alleged bribery was indeed covered up by some creative accounting, it was lawyers – Mr. Cicero, Ms. Munich, and others – who were at the front lines, in both positive and negative capacities. Law students aspiring to a corporate career ought to take notice of this; law schools should do so as well. Education may be the first line of defense against serious future ethical and legal mishaps in the business world.

The talks were entered into only semi-voluntarily. Both companies were ordered to indicate their availability for an attempt at Alternative Dispute Resolution, which forced their hands; had one company indicated that their CEO could participate and the other had not, it would have reflected poorly upon them. The Magistrate Judge Settlement Conference will have to take place within 90 days of the court order, or by July 22nd. Given that both parties intend to stick to the August 25^th trial date, it remains to be seen what sort of timing strategy they intend to pursue.

Both companies are still doing approximately $8B of business per year with each other, according to analyst estimates; Apple purchases memory chips, displays, and other components from Samsung. In Germany and Australia, Apple has won injunctions against Samsung’s tablet computer, but Samsung was able to overcome them with design revisions and appeals. However, legal battles continue in several other countries, and as Q1 earnings reports are announced, these will possibly intensify. On Friday, April 20^th, Forbes reported that Samsung sold over 40 million smartphones in this time period, significantly outdoing the predicted 33 million iPhones sold by Apple. The official report from Apple will appear tomorrow.

Mr. Sommer begins his guide by emphasizing the distinction between a Disaster Recovery Plan and a Forensic Readiness Plan. Disaster Recovery Plans typically address how to respond when business is impacted by a natural disaster or other catastrophic event; the main focus of such plans is to minimize the damage done to the business and resume normal operations as soon as possible. To put it another way, Disaster Recovery Plans are responsive or reactive. In contrast, Forensic Readiness Plans focus on what to do before a crisis situation, specifically one with legal dimensions, is actually at hand. These plans are also broader in scope, and frequently cover events that are less severe; Mr. Sommer delineates between issues with high impact/low frequency and those with low impact/high frequency.

The main goal of a Forensic Readiness Plan is to anticipate litigation and the corresponding requirements for preservation and discovery (known as disclosure in the UK) of ESI. Legal proceedings can be as mundane as a dispute with an employee over their contract, or as serious as criminal charges or investigation for fraud. In either case, ESI still needs to be handled appropriately. As Mr. Sommer notes, it is imprudent and nigh impossible to try to develop an action plan for ESI in the middle of litigation. This needs to be done well in advance, so that business is not significantly interrupted or compromised when requirements to preserve and discover ESI are triggered. Senior executives, lawyers, and IT experts all need to be involved in creating a Forensic Readiness Plan, which will support the efforts of lead decision makers during litigation.

Preservation and collection of ESI needs to be done in an efficient, cost effective, and low impact way. Businesses should also be sensitive to the privacy issues surrounding preservation of data, especially where clients and employees are concerned. However, the main concern is to meet obligations to customers and clients as well as to debtors, employees, and the public. With this in mind, Mr. Sommer spends a significant portion of the guide familiarizing readers with the lifecycle of an incident that would necessitate the legal use of ESI, as well as with types of evidence.

The lifecycle is divided into: detection, reporting, initial diagnosis, initial actions, evidence collection, mature diagnosis, mature actions, recovery activity, remedial activity, civil legal activity, law enforcement activity, and criminal and regulatory proceedings. “Evidence collection” is actually an early part of the cycle, and needs to happen before formal discovery requests are made; this will help businesses to avoid sanctions because of improper discovery or preservation, and will also streamline the discovery process. Collection of evidence also assists in the maturation of diagnosis and action, so even if no legal proceedings actually occur, the business still benefits. In terms of types of evidence, Mr. Sommer’s list is extremely comprehensive. A few sources that deserve mention here are PDAs, outsourced data, and data in the cloud; these have all come under increased scrutiny in the US.

Mr. Sommer provides an extensive corporate action plan at the end of the guide – pages 34 through 37 –, which walks the reader through the response to an incident. Specific actions are given for each step of the process, which include continuous updates to existing procedures and policies. Also included are details on organizing a team or teams to deal with the incident, and the identification of key personnel. Overall, the guide provides an excellent case for the development and implementation of a Forensic Readiness Plan, and includes the information that a business would need to begin this process. Readers in the UK and in the US will find it to be of great use.

As well as blasting Urban Outfitters for being “tacky,” “cheap,” and “…[professing] extreme ignorance and bigotry,” Ms. Brown raised the point that by using the Navajo name, Urban Outfitters may be in violation of the Federal Indian Arts and Crafts Act of 1990, as well as guilty of infringing on the trademarked Navajo name. The act prohibits misrepresentation in marketing of Indian arts and crafts, which entails falsely identifying the product in question as being made by an Indian tribe or craftsperson. A few months prior to when Ms. Brown published her infamous letter, the Attorney General of the Navajo Nation actually sent their own, a cease and desist notice. In the notice, the Attorney General noted that consumer confusion would be created if Urban Outfitters continued to use the Navajo name and requested that the product line be discontinued immediately.

On February 28^th, 2012, the Navajo Nation filed suit against Urban Outfitters in New Mexico, alleging trademark infringement and dilution as well as violation of the Arts and Crafts Act. The case states that the use of the Navajo name and traditional patterns causes confusion as to the source of the products and weakens the distinctive nature of the trademarks held by the Navajo Nation. It also asserts that dilution has specifically occurred because products such as a hip flask and panties are “derogatory and scandalous.” Multiple commentators on the original letter by Ms. Brown were especially distressed by the flask, given that alcohol sales are banned on Navajo lands and alcoholism is an extremely serious issue in the Native American community at large.

While the trademark protection of “Navajo,” as well as alternative spellings is strong and the claims of infringement and dilution are likely to be upheld, it is less clear if the court will uphold that Urban Outfitters violated the Arts and Crafts Act. Clothing is neither and art nor a craft. Also, Urban Outfitters is likely to argue that consumer confusion is unlikely, given that the items are clearly manufactured and sold by them rather than by the Navajo Nation.

Prior to the suit being brought, a spokesperson for Urban Outfitters defended the use of the Navajo name and derivative prints, saying, “The Native American-inspired trend and specifically the term ‘Navajo’ have been cycling thru fashion, fine art and design for the last few years.” However, items that had previously featured the word “Navajo” in their titles have either been removed from the online shopping portal or renamed. The suit raises complex questions about how intellectual property should be handled in fashion; complaints of cultural appropriation of both traditional Native American and African tribal designs have been raised time and time again. Designers and companies are usually able to deal with this criticism by claiming ignorance or denying that they did anything wrong. Oftentimes, they successfully claim “inspiration” rather than outright theft of a design. Since Urban Outfitters used “Navajo” very explicitly, it is unlikely to be able to do the same.

Is it reasonable to say that any one person or entity owns a name or pattern, especially ones as globally well known as the Navajo name and associated patterns? Much like the case of India patenting yoga postures, these intellectual property protections assure that the proper associations are maintained. Just as India does not want yoga to be improperly identified with the United States or a particular famous practitioner, the Navajo Nation does not want material that is unique to their culture and history to be claimed by another party. They want to control how they are represented, and their suit against Urban Outfitters shows that they not only have the will to do so, but the legal savvy.

A little bit of background on the case…

The plaintiffs allege that the defendants engaged in a series of parallel capacity reductions and price increases even as consumer demand for their product – containerboard, the primary component of innumerable packaging products for industrial and consumer use – was increasing. While the defendants submit that the capacity reductions were not carried out in parallel, they have not denied that the price increases were. However, they state that because the containerboard industry is highly consolidated, oligopolistic in nature, and has inelastic demand, contemporaneous price increases are lawful interdependent conduct. Put in plain English, if one company in the industry raises their prices because of increased costs and/or weakened demand, the others must follow suit or risk being forced out of business.

The defendants failed to convince the court to dismiss the antitrust claim, and were ordered to respond to the complaint on or before May 2^nd, 2011. Factoring into the court’s decision was the fact that prices were increased even as capacity was decreased, in the face of increased demand, and the timing of these changes, which occurred after industry-wide meetings. Currently, the case is well underway, with 99% of the defendants’ discovery process complete. However, the plaintiffs are asking Judge Nan Nolan to compel the defendants to redo their discovery because they used keyword searching rather than predictive coding.

Boolean keyword searches are often regarded as the “gold standard” of e-discovery. When performed correctly, they combine the efficiency and thoroughness of a computer with the judgment of a human reviewer. During e-discovery, the main benefit of keyword searches is that they can greatly assist the process of identifying relevant documents. While it is true that there are significant limitations with keyword searches (for example, they are blind to the context in which a word or phrase is used, and if a relevant search term is simply left out there is no way to know), they are also what every other e-discovery technology is compared to.

In Kleen, the defendants have used keyword searches to produce over a million documents already, and have put thousands of hours into review. Even so, the plaintiffs want Judge Nolan to issue an order that would have the defendants redo discovery using predictive coding because they feel that the limitations of keyword search are such that a significant number of documents relevant to the case have not been identified.

While the fact that 99% of discovery has been completed seriously weakens the strength of the plaintiff’s argument that discovery needs to be redone, there are other issues as well. In contrast to Da Silva Moore, in which the plaintiffs have applied endless amounts of scrutiny to the protocols for the use of predictive coding in review, the plaintiffs of Kleen have neglected this piece of the puzzle almost entirely. Predictive coding technology is still very much in its early days, as far as the legal community is concerned, and is far from achieving the each of use that keyword search enjoys. An expert in the case must carefully train the program in order for it to be able to identify the correct documents with accuracy equal to that of a human reviewer; even a tiny mistake in the algorithm can turn into huge deficiencies in quality. It is better to use a less advanced tool very well than to place an extremely complex tool in the hands of someone who doesn’t know how to use it.

During the hearing, the plaintiffs did shift their gaze to the actual process for keyword searches employed by the defendants, rather than solely criticizing the technology itself. Despite the best efforts of their testimonial expert, the plaintiffs were unable to convincingly portray the defendants’ keyword search methodology as flawed, and the cross examination of the expert actually cast it in a very favorable light, when compared to the status quo.

As both Kleen and Da Silva Moore continue their time in the spotlight as the predictive coding cases du jour, further critical comparisons are sure to prove very illuminating.

The complaint details at length exactly how the fierce price competition in the e-book market in late 2009 motivated the price fixing. Apple and the publishers apparently moved quickly and had signed agreements to move from the traditional wholesale model to the agency model by January 2010. These agreements went into place in April of 2010 and were almost instantly felt by the rest of the players in the e-book market. Also feeling the effects were consumers; a letter from the Consumer Federation of America, dated April 9^th, states that in 2012 alone, the price increases will result in overcharges to consumers in excess of $200 million. The number used in the complaint from the DOJ is $100 million of overcharges to date.

On the same day as the complaint was released, the DOJ also settled with Hachette Books, Simon & Shuster, and Harper Collins. This settlement strengthens the antitrust case (which has been filed as related to cases brought by 16 other states on similar charges) against Apple, Macmillan, and Penguin substantially. However, the DOJ is not seeking monetary damages, only a decree that a conspiracy to fix prices did occur, an injunction against collusion, and costs of the scheme. Private lawyers will determine the damages in the class action, seeking to “…pry the ill-gotten profits from Apple and the publishers and return them to consumers.”

While the complaint is welcome news for e-book vendors such as Amazon and consumers of e-books, the publishing industry is almost certainly disappointed. As more and more products move into the digital realm, the roles of brick-and-mortar producers and merchants are increasingly in question. The outcome of the case against Apple and the remaining publishers surely will be a milestone in the ongoing battle between those who stand to benefit from “digital disintermediation” and those who are fighting it tooth and nail.

The project to patent asanas was initiated by Council for Scientific and Industrial Research (CSIR) in 2006; at that time, 16.5 million people were practicing yoga in the United States alone and the size of the yoga market was $2.96 billion annually. Those statistics have only become more impressive in the intervening years. The “yoga industrial complex”, as it has been christened by the website YogaDawg, will doubtless continue to grow and thrive as more people find their way to a mat for various reasons – to relieve stress, look younger, lose weight, or even for spiritual reasons.

In the United States, there are currently over 130 patents, 150 copyrights, and 2,300 trademarks to yoga related products and services, although no poses have been recognized as intellectual property. India believes that these statistics, when viewed in combination with the ones above, represent a threat to its role as yoga’s birthplace and cradle. The tradition is over 2,000 years old and is still widely taught in India, mostly in public parks and free of charge (in contrast to the highly commercialized American model). By patenting asanas, the CSIR hopes to prevent other countries from infringing on what is seen as a uniquely Indian invention.

There is a precedent for patenting postures. Bikram Choudhury, a native of Calcutta, invented the eponymous and wildly popular bikram yoga and patented his series of 26 postures which take place over 90 minutes in a room heated to 105 degrees Fahrenheit with 40% humidity. In 2002, Bikram successfully shut down studios offering “bikram hot yoga” when they deviated from his exact methodology by playing music and changing the temperature. When Bikram was asked why he would seek to patent his yoga, he simply stated that, “…it’s the American way.” Allegedly, outrage over Bikram’s patent was part of what sparked the CSIR project to patent asanas.

It remains to be seen how effective the patents within the TKDL will be at quashing the efforts of entrepreneurs in other countries to create their own yoga brands. As experts note, none of the intellectual property protections have been granted to the posture itself, only a particular set of conditions or environment. Also, it is up for debate if other methods of protection (such as an approach similar to the one taken by France regarding champagne) would be more successful. However, Japan’s patent office has already entered into an agreement to use the information on yoga contained within the TKDL, and other international patent offices are sure to follow. At the very least, the patents will provide protection for yoga in the broadest sense of the word and significantly tighten the legal association between yoga and India.

Currently, the FRCP do not address preservation requirements or sanctions at all. So what has this void been filled with? The Model Order from the Eastern District of Texas, introduced in February of this year, and the Revised Default Standard from Delaware, introduced in December 2011, both go into detail about what types of ESI are exempt from preservation. However, the Florida Rules of Civil Procedure follow the lead of the Federal Rules of Civil Procedure by sidestepping the issue. If the agenda from the meeting of the Advisory Committee is any indication, the time has come for sanctions and preservation to be tackled, which will doubtless be a relief for attorneys who are currently practicing without firm guidelines.

The Discovery Subcommittee decided that if they directly addressed preservation requirements, it would actually impose greater burdens on parties who are producing ESI because it would limit flexibility. Since the types, volume, and complexity of ESI often vary from case to case, the subcommittee instead chose to focus on preservation through the lens of sanctions.

The gist of the draft of Rule 37(g) is that if parties fail to preserve discoverable information that reasonably should be preserved during or in anticipation of litigation, and this failure was in bad faith, willful, and caused irreparable prejudice, then sanctions – including extra discovery, curative measures, and fees – will be imposed. In order to determine if the failure to preserve was in bad faith, the court needs to consider all relevant factors. Some of these factors include how much notice the party had that the information was needed for litigation, the party’s “resources and sophistication in matters of litigation,” and whether or not the party sought guidance from the court to resolve disputes over preservation. If adopted, this draft would indicate valuable guidelines, but some big questions still remain.

First, what does “discoverable information that should be reasonably preserved” really mean? In the article When Data Disappears, published in August 7, 2011 by the New York Times, it is noted that “…we generate over 1.8 zettabytes of digital information a year. By some accounts, that’s nearly 30 million times the amount of information contained in all the books written.” The scope of discoverable information has and is expanding at a rate that the human mind cannot even comprehend. Especially with the rising prevalence of cloud computing, storing massive volumes of data is not a significant challenge. Given this reality, is it really reasonable to say that everything relevant needs to be preserved?

Second, should any amendments to Rule 37(g) focus specifically on ESI, or on all discoverable information? As written, the draft does not treat ESI differently from any other type of information, although there are arguments to be made that a distinction is necessary. The primary argument in favor of making Rule 37(g) all about ESI is that it was technological developments like PDAs, social media, and the “bring your own device” movement that provoked the current discussion of preservation and sanctions in the first place. However, it is difficult to articulate precisely what makes ESI different from any other type of information that could be used as evidence. It will be interesting to see which position is taken once the amendments are in place.

In conclusion, the proposed amendments to the Federal Rules of Civil Procedure would give structure to the currently chaotic jumble of rules concerning preservation and sanctions. The draft of Rule 37(g) raises several fundamental questions about the nature of discoverable information and how we deal with it. Any changes would not go into effect until December 2015, so there is plenty of time for further developments to arise.

In constructing the rules, the Joint Working Group relied on 10 principles, of which a select few discussed here.

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.

Given the amount of time and energy that the e-discovery community has devoted to advocating increased technical education for lawyers, it is hardly surprising to see this principle listed at number one. In the past, it was common to regard cross pollination between the legal and IT professions in a negative light. Lawyers practiced law, and IT professionals supported that practice, contributing their technical expertise as needed. However, this paradigm is changing, and now lawyers are taking on more project manager type roles in the e-discovery process that force them to have more than a passing understanding of how it actually works.

Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.

As seen in the case of Da Silva Moore, agreement on the nitty gritty details of the specific e-discovery procedure(s) proposed is essential. The difference between ten thousand and ten million documents is substantial in terms of cost, time, and man power, and this difference may potentially be decided by a single poorly chosen search term or technique. Also, the importance of “on-going dialogue” cannot be emphasized enough, as this allows parties to stay on top of a constantly evolving case. After the meet and confer, Principle 6 entails notifying the court of any decisions that the parties have made about ESI discovery and of any problems they anticipate that would add to the difficulty of handling the case.

Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.

Appointing a discovery coordinator takes the burden of constant communication and records keeping off the lawyers and technical personnel and allows them to focus on their specific duties. Managing an e-discovery project can be a full time job even in some single defendant cases, and can be dealt with most effectively by someone who can devote their full attention to the task. A coordinator can help to ensure that the process runs smoothly and doesn’t get hung up on completely avoidable issues, such as a lost email message.

As for the rules themselves, they mostly mirror the e-discovery methodology that applies in civil cases. However, the criminal rules go into significantly more detail; for example, the rules include 15 different categories of ESI that may be produced. It is interesting to note that while other guidelines – such as those produced in Delaware and the Eastern District of Texas – have specifically excluded phones, voicemails, and PDAs from discovery requirements, the criminal rules do include third party devices with ESI as a category. Other categories of note are documentation of tangible objects, photographs and audio recordings, and materials with special considerations (trade secrets, tax returns, etc.).

Also included in the rules is an “ESI Discovery Production Checklist,” which comprehensively details the considerations that parties should keep in mind when commencing a criminal case involving e-discovery. This checklist offers criminal lawyers a simple, single step way to make sure that they address the most pertinent issues involved in the e-discovery process. But before diving into the recommendations, keep in mind a quote from the introduction, which states, “These Recommendations are intended for cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case. In simple or routine cases, the parties should provide discovery in the manner they deem most efficient in accordance with the Federal Rules of Criminal Procedure, local rules, and custom and practice within their district.”