The Sixth Circuit held that Fed.Civ.R. 54(d)(10 and 28 USC 1920(6) permit the charging of costs against the parties, not their attorneys. In re Cardizum CD Antitrust Litigation (Feb. 22, 2007), Sixth Circuit Case No. 05-2375.
Per the Myfairdebt.com Forum, the Sixth Circuit held that expert witness fees could not be taxed as costs because 28 U.S.C. 1920 does not so provide. Some of the expert witnesses expenses for travel and attendance may be recoverable as ordinary witness costs under 28 U.S.C. 1821. L& W Supply Corp. V. Acuity (Jan. 23, 2007), Sixth Circuit Case No. 05-6845.
The national Civil Subpoena form, AO-88 has been updated to reflect the new electronic discovery rules. See Update to National Civil Subpoena Form, Public Notices, Ohio Northern District of Ohio website.
The Ohio Supreme Court issued for the second public comment period Proposed 2007 Amendments to the Ohio Rules of Civil Procedure (Rules 10 and 86), Ohio Rules of Criminal Procedure (Rules 10, 43 and 59) and Ohio Rules of Evidence (numerous - to incorporate gender neutral language). Comments are due by March 7, 2007.
The proposed rules clarify what is good cause for an extension of time for an affidavit of merit in a medical malpractice case under Civ. R. 10(D)(2). The rules also allow for the use of videoconferencing in criminal cases. Crim R. 10 and 43.
See our prior post: Proposed Ohio Civil, Criminal and Evidence Rules ( re. first public comment period).
Ohio HB 336 , section 6, created the Joint Committee to Study Court Costs and Filing Fees, effective Jan. 18, 2006. The Committee's recommendations must be submitted by Jan 18, 2007, to the Ohio Supreme Court, the General Assembly, and the Governor. The Committee's meetings are open to the public. Chief Justice Moyer commented:
"We need to establish an orderly, coordinated process for determining court costs so that they are set at a level that provides citizens reasonable access to the courts. With few exceptions, they should be assessed for the operation and maintenance of the courts."
What do businesses have to do to be ready for electronic discovery under the new Federal Civil Rules? Must they take any steps, even if they are not involved in or anticipating any litigation?
"Companies will not have to alter how they retain their electronic documents, she said, but will have to do an “inventory of their IT system” in order to know better where the documents are." Companies Face New Rules on Keeping E-mails, Instant Messages by Associated Press, Globe and Mail.com, Dec. 1, 2006, quoting Martha Dawson, a partner at the law firm of Preston Gates & Ellis LLP who specializes in electronic discovery.
Attorneys must provide information on what electronic data is available, how it is stored and whether it is accessible, earlier in the lawsuit than ever before. IT departments have to be prepared to provide this information to attorneys quickly in case a lawsuit is filed. Companies should only retain information needed for a legitimate business purpose. Otherwise, the company will have too much stored information, and it will be too expensive to go through it all. See Are You Properly Preserving Your Electronic Documents?, Calfee, Halter & Griswald, 2006.
This article sets out 4 steps the IT department should take: New Federal Discovery Rules are Coming. How Can IT Get Ready? by Kevin B. Roden, Sarbanes-Oxley Compliance Journal, 7-7-06. Another great how-to article: Create the Perfect ESI Policy by Dean Gonsowski, E-Discovery Advisor Magazine.
This article details the rule changes, with a link to the text of the rule changes: E-Discovery Amendments to the Federal Rules of Civil Procedure Go Into Effect Today by Preston, Gates, Ellis, LLP. Note the "safe harbor" provision, described by the article as follows: "This rule provides that, absent exceptional circumstances, a court may not impose sanctions 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."
Instant messaging, voicemail and web-based e-mail should not be ignored, as these are discoverable too. E Discovery May Target Unexpected Sources by David Sumner and Damon Reissman, E-Commerce Law & Strategy, December 4, 2006.
Also see: New Rules Tighten Requirements for Electronic Document Discovery by Ogletree Deakins, Nash Smoke and Stewart PC, Nov. 2006; EDD-ucating Yourself About Electronic Discovery by Dennis Kennedy and Tom Mighell, ABA Law Practice Today, Oct. 2006. For a somewhat older, but useful article that addresses records retention issues pre-litigation (or expectation of litigation), see Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments by William R. Denny, Findlaw.com, 2005.
See our prior post: Pending Federal Rules Changes Regarding Electronic Discovery.
University of Cincinnati Law Professor Suja Thomas asserts that summary judgment is unconstitutional, and the U.S. Supreme Court has never truly determined whether the procedural device is constitutional. While the Court has considered whether jnov and directed verdicts are constitutional under the Seventh Amendment, the Court has never actually considered the same for summary judgments. The beginning of the article acknowledges the importance of summary judgment in today's judicial system, noting that before the civil rules (1938), nearly 20% of federal cases went to trial, while less than 2% went to trial in 2003. The article is: "Why Summary Judgment is Unconstitutional", Suja A. Thomas, 93 Virginia Law Review, Spring 2007, and is available for free at the Social Science Research Network.
Thanks to Jack Sargent for alerting us to this thought provoking article.
The Ohio Supreme Court has published Proposed Amendments to Ohio Civil, Criminal and Evidence Rules. The Court will accept public comments until November 8, 2006. The rule revisions include rules regarding video conferencing in criminal cases (Crim.R. 10, 43); numerous changes to criminal discovery rules (Crim.R. 16); and changes concerning the affidavit of merit in medical malpractice cases (Civ.R. 10(d)(2)). Numerous evidence rules are changed to incorporate gender neutral language.
Amended Ohio Civil Rules, Criminal Rules, Evidence Rules, Juvenile Rules and Traffic Rules effective July 1, 2006 are posted on the Ohio Supreme Court's website. Go to: Ohio Rules of Court
Legislation Affecting the Federal Rules of Practice and Procedure, 109th Congress summarizes bills, both passed and pending in the 109th Congress, first session, which affect the Federal Rules of Practice.
