The Four Most Significant Developments in Federal Practice in 2006
(1) The December 1, 2006 Electronic Discovery amendments to the Federal Rules of Civil Procedure and the increasing burden on outside counsel to monitor preservation and compliance.
(2) Increasingly stringent class certification requirements culminating in the Second Circuit's decision in the IPO Securities Litigation on December 5, 2006 (In re Initial Public Offering Sec. Litig., 2006 U.S. App. LEXIS 29859 (2d Cir. Dec. 5, 2006)).
(3) Increasing impingement on the attorney client privilege and work product doctrine as exemplified by regulatory and prosecutorial insistence on waiver as tangible evidence of "cooperation" (the Thompson, now McNulty, Memo); the Regulatory Relief Act of 2006 (§ 607 of which adopts the doctrine of selective waiver for disclosures to banking authorities); Proposed Federal Rule of Evidence 502 (waiver of privilege and work product); and the Third Circuit opinion in In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006), applying the crime-fraud exception to conversations between counsel and client because the client did not adequately prevent the deletion of electronic data.
(4) The continuing expansion of federal jurisdiction in light of three 2005 developments: Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005) (expanding supplemental jurisdiction); Grable & Sons Metal Prods., Inc. v. Darue Engr’g & Mfg., 545 U.S. 308 (2005) (expanding federal question jurisdiction); and the Class Action Fairness Act of 2005 (preempting state court jurisdiction over most class actions). (GPJ)
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