Here is the second installment of insights I gleaned from the ABA National Institute on E-Discovery

  • Federal Rules Amendment Process:  Judge Koeltl of the Southern District of New York led a panel that provided a thorough update on potential amendments to the Federal Rules of Civil Procedure.  Consideration is being given to making the proportionality requirement of rule 26(b)(2)(c)(iii) more prominent.  Judge Koeltl noted that in his view lawyers are not focusing on that as much as they could be and he tends to raise that rule more than the lawyers practicing before him do.  It is a strong tool for judges to limit the scope of discovery where the burden and expense outweighs its benefit.  Also under consideration are proposals to shorten the time to serve a summons and complaint, limit depositions to 5 per side and to 4 hours instead of 7 hours, limit interrogatories to 15, limit requests for production to 25, and limit requests for admission to 25 except for admissions with respect to the genuineness of documents.  (Judges would retain discretion to modify these limits where necessary and appropriate.)  In my view, requiring both sides to employ more limited, focused discovery instead of the “uncover everything” mindset that some lawyers (and clients) have is probably the only way to significantly restrain litigation costs and allow more cases to be tried.  But it requires a real culture change among many civil litigators.  Another rule change under consideration would amend Rule 34 to require that responses to requests for production be made with more specificity and prohibit evasive responses.  Other proposals include a requirement that the parties discuss and agree on the scope of preservation of documents at the outset of a case, and a formal requirement in Rule 1 that counsel cooperate with each other.  Also under consideration is a change to Rule 37 that would prohibit sanctions for a failure to preserve evidence (except in exceptional circumstances) unless a failure to preserve evidence was willful or in bad faith and caused prejudice.   
  • Predictive Coding:  As explained in my March 9, 2012 blog post, new software is now enabling computers to cull through a set of electronic documents and, based on an experienced lawyer’s review of a sample of documents, the computer will make determinations on whether documents in the remainder of the set are likely to be responsive or non-responsive.  The consensus of a panel of lawyers who have used this software is that it works well, what the computer does is really quite similar to what a team of junior or contract lawyers attempts to do, and studies consistently have shown that the computer review is more accurate than human eyes.  The consensus seemed to be that this is the wave of the future, will bring substantial cost savings to complex litigation, and lawyers and judges should get comfortable with it.  There was also some interesting discussion about whether the opposing party needs to be provided with more access to information regarding this type of review (e.g., being provided with a sample of “nonresponsive” documents) that is not provided when lawyers are performing the same type of work that the computer will do.
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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.