The United States District Court for the Northern District
of California has revised Civil Local Rule 16-9 and issued
a new Standing Order for all Judges regarding the
required contents of Joint Case Management Statements
filed pursuant to recently-amended Federal Rule of Civil
Prior to this change, each Judge in the Northern District
could (and often did) have his or her own standing order
regarding Joint Case Management Statements. Effective
for all civil cases filed on or after March 1, 2007, the new
Standing Order will be standardized for all Judges and will
require identical information in all Joint Case Management
Most importantly, paragraph 6 of the new Standing Order
specifically addresses the issue of evidence preservation in
civil cases and requires discussion of the following topics in
the Joint Case Management Statement:
6. Evidence Preservation: Steps taken to preserve
evidence relevant to the issues reasonably evident in
this action, including interdiction of any document destruction
program and any ongoing erasures of emails,
voice mails, and other electronically-recorded
The requirement that routine record retention programs
be suspended when litigation is reasonably anticipated or
pending (commonly referred to as a "litigation hold") has
been in place for some time. The express expansion of this
requirement to include voice mails and other "electronically recorded
material," however, represents an important
development – particularly for corporate litigants that
may encounter substantial technological and monetary
challenges and limitations in stopping the erasure of voice
mails. Indeed, for companies operating on older and/or
proprietary voice mail systems, targeted stoppage of voice
mail erasure may be impossible as a practical matter.
Coupled with the December 1, 2006 expansion of Federal
Rule of Civil Procedure 34(a) to cover "sound recordings…
and other data or data compilations stored in any medium from which information can be obtained," the Northern
District's new rules may present significant electronic
information management challenges to companies.
The full text of the local rules changes and new Standing
Order are available on the Public Announcements page of the
Court's website at http://www.cand.uscourts.gov. The Court
has specified a public notice and comment period through
March 30, 2007 regarding the new rules.
Our firm's overview of the December 1, 2006 FRCP changes is summarized at www.fenwick.com/docstore/publications/Litigation/Litigation_Alert_04-25-06.pdf
If you have any questions about what next steps your
company should be taking to ensure the proper handling of
electronic information and to enable cost-effective responses
to discovery requests, do not hesitate to contact us.
More information about our Electronic Information
Management (EIM) Group is available on our Web site http://www.fenwick.com/services/2.23.0.asp?s=1055.
Bob Brownstone, Director, Law and Technology
Bill Fenwick, Partner, Litigation Group
Mike Sands, Chair, EIM Group
©2007 Fenwick & West LLP. All Rights Reserved.
This update is intended by Fenwick & West LLP to summarize
recent developments in the law. It is not intended, and should
not be regarded, as legal advice. Readers who have particular
questions about these issues should seek advice of counsel.