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Lawyers Journal

Impact of e-discovery rules, other new laws, lead 2014 predictions

It happens all the time - last year's changes turn into this year's challenges. When new laws get announced, new questions inevitably follow. The same can be said of 2014, if lawyers' predictions hold true.
Lawyers Journal asked many of our section leaders to address the issues they see coming up next for lawyers in year ahead. According to our responses, 2014 may be the year of the "e" - as in e-discovery, the economy and the effects of a number of new rules and regulations.

GREAT EXPECTATIONS


ACCESS TO JUSTICE


Isabel Sara Raskin and Susan G. Anderson


Two significant trends will force changes in the practice of law in Massachusetts: growing income inequality, and the aging of our population. When the ratio of the average household income of the richest 20 percent of households to the poorest 20 percent is compared, Massachusetts ranks eighth in income inequality, with the poorest losing income from the 1990s to the mid-2000s, the next bracket gaining less than 10 percent and the top bracket gaining three times that. Simultaneously, Massachusetts' population is becoming older (by 2030, 25 percent will be 60 and older), which will likely lock in these disparities for many people.

Those factors put obvious strains on programs that provide civil and criminal legal services to the poorest. Additionally, though, as the middle class is more and more stretched thin, the private sector market for legal services is also strained. Firms that serve this market - primarily small firms and solo practitioners - will have to adapt to a new economic reality, and find new and creative ways to provide personal, cost-effective legal services.

CIVIL LITIGATION


Holly M. Polglase


Discovery issues related to electronically stored information, so-called "ESI," are likely to gather steam in the new year, particularly in Massachusetts where amendments to the Rules of Civil Procedure regarding e-discovery took effect on Jan. 1, 2014. These amendments provide new requirements and guidance for state court litigants and are modeled in part upon the existing federal rules governing e-discovery. Courts, attorneys and clients will be forced to grapple with a quickly changing litigation landscape as the new rules become part of the practice; existing technologies, such as predictive coding, potentially gain broader judicial acceptance; and newer technologies emerge. In addition, there will likely be a continuing focus on client data retention and preservation policies regarding ESI. E-discovery will likely impact us all in the coming year.

CRIMINAL LAW


Radha Natarajan and Adam J. Foss

This is going to be an exciting year for criminal justice practitioners in Massachusetts. Here are just a few questions we can expect to be answered by the Supreme Judicial Court in 2014. (1) Is the law that expanded the jurisdiction of the Juvenile Court to individuals who are 18 years old, rather than 17, retroactive to cases that were pending when the law went into effect? (2) Are the provisions of the "Three Strikes Law" that changed the amounts of controlled substances necessary to qualify as trafficking retroactive to cases pending when that law went into effect? (3) Are current police and court procedures sufficient to prevent the wrongful convictions of innocent individuals based on eyewitness misidentifications? (4) Does the scheme for community parole supervision for life violate the doctrine of Separation of Powers? We look forward to hearing what the court has to say about these important issues.

FAMILY LAW


Michael I. Flores and Jennifer R. Clapp

The one constant in the practice of family law is change. We predict that family law practitioners will encounter at least the following two changes in 2014:

1.    As of Jan. 1, 2014, the Massachusetts Rules of Domestic Relations Procedure changed to reflect the SJC's amendments to the Rules of Civil Procedure. Primarily, the procedural rule changes affect how family law practitioners request and produce electronically stored information (ESI) as part of contested cases. The new rules also clarify how attorneys and the courts contend with the inadvertent disclosure of privileged information as part of discovery.

2.    There will be changes in how the courts enforce the provisions of the Alimony Reform Act of 2011 as the appellate courts issue decisions interpreting the act over the course of 2014.

HEALTH LAW


J. Michael Scully


As we see and hear in the daily news reports, the areas of health care and health law are constantly evolving and changing. The commonwealth's implementation of federal health care reform will continue to be a "hot" topic and continue to affect many areas of health law. The expanded use of health care information technology, including health care information exchanges, and its attendant efficiencies, risks and potential problems, will also be an important area for patients, providers and health law lawyers in 2014 and beyond.

IMMIGRATION LAW


Michael D. Greenberg and Alan M. Pampanin

If there is one new issue that all immigration attorneys are looking forward to in the next year it is the prospect of comprehensive immigration reform. Last year we had the impact of the end of DOMA and its effect on same-sex marriage issues in immigration. There are certainly issues with detention and removal. However, the big issue is whether we can achieve some legalization for the millions of people here without status and some peace for their families.

INDIVIDUAL RIGHTS & RESPONSIBILITIES


Michelle A. Keith and Richard W. Cole

The rise of 3D printing coupled with the growth in crowdsourcing will make way for the beginning of a Digital Industrial Revolution affecting consumer goods, medical and transportation industries. While IP theft will rise, the ability of individual designers, ordinary citizens and university researchers to extend the supply chain through innovation will create new paradigms, especially for STEM training and investment. Within the medical industry, scientists have already modified 3D printers to "bioprint" tissues and organs from stem cells. Within transportation, where weight is gold, 3D printing of lighter weight or replacement engine parts will allow on-site manufacturing. Control over both corporate and personal data will spark greater government regulation, global debate and a larger scale type of the "Occupy Wall Street" movement.

JUDICIAL ADMINISTRATION


John J. Morrissey and Michael T. Maroney


The new amendments to Rules 16, 26, 34, 37 and 45 of the Massachusetts Rules of Civil Procedure addressing discovery of electronically stored information (ESI) will have a substantial impact on the administration of justice in the commonwealth. The amendments went into effect on Jan. 1, 2014, and the rules apply in all courts and proceedings governed by the Massachusetts Rules of Civil Procedure. Accordingly, attorneys will need to review the rules and incorporate them into their practice.

Don Grady

One new trend in the legal landscape of our state and federal court systems is the recent filing and assignment of mass tort cases, involving trans-vaginal mesh (TVM) products, dialysis products and contaminated pharmaceutical compounding products. These three claims have spawned federal multi-district litigations: two of the MDLs which have been locally assigned to federal justices sitting in Boston. TVM state court actions against Boston Scientific have been consolidated in a specially created civil session in Middlesex Superior Court and have been assigned to Judge Judith Fabricant. Superior Court Judge Maynard Kirpalani has been assigned to Granuflo/Dialysis actions that have been filed against Fresenius and its holdings in Middlesex Superior Court.

These cases involve rulings and procedures that vary greatly from the standard tracking order process for the majority of civil actions. Special procedural rules and orders have been instituted in the specially assigned Middlesex sessions. Expanded technological systems in the filing of court documents, pleadings and motions has been instituted on a higher and more sophisticated level within the Massachusetts Superior Court system for these mass tort cases in comparison to other forms of civil actions. Coordinated discovery efforts have been instituted in the representation of the parties and between the federal and state courts handling these issues. On the practice level, the handling of these matters requires an in-depth knowledge of the procedural rules and orders instituted by the courts and sessions to handle this volume of work. Given Massachusetts' leading position within the biotechnology/medical device and pharmaceutical industries, this trend in filing mass tort actions in Massachusetts, on the state and federal level, will continue to grow and expand.

JUVENILE & CHILD WELFARE


Marlies Spanjaard and Jessica Berry

On Aug. 6, 2012, Governor Deval L. Patrick signed House Bill 4332, An Act Relative to Students' Access to Educational Services and Exclusion from School as Chapter 222 of the Acts of 2012. The new law adds procedural and reporting requirements for student suspensions and expulsions. It will also require school districts to provide students excluded from school for disciplinary reasons with the opportunity to make academic progress. Currently, a regular education student who is excluded from school does not have the right to any educational services. The Department of Elementary and Secondary Education will be issuing regulations to address the new responsibilities of school districts under the new law, which will take effect on July 1, 2014.

LAW PRACTICE MANAGEMENT


Cynthia E. MacCausland and Damian J. Turco

The most impactful factors of 2014 will be the further increase in the number of lawyers competing for the same business and a further integration of technology into lawyers' and clients' respective lives. How we communicate with clients, prospective clients, colleagues, adversaries and others will evolve at an increasing speed and our practices will need to adapt accordingly.

LABOR & EMPLOYMENT


Sheryl D. Eisenberg and John F. Tocci

There are a number of bills currently in the House and Senate, any one of which, if passed, would likely lead to an uptick in compliance activity and in litigation - among them, the following:
•    House Bill 1739, which would require employers to provide paid sick leave to employees;
•    House Bill 1774/S 865, which would, among other things, amend the Massachusetts Maternity Leave Act to apply to males and part-time employees; and
•    Senate Bill 856, which would regulate the use of non-competition/non-solicitation agreements.

PUBLIC LAW


Brian C. O'Donnell and David Hadas

Issues related to governmental transparency will continue to be actively debated in 2014. In particular the Massachusetts Legislature is expected to review multiple proposed amendments to the Public Records Law, which may be well intended with regard to shedding light on governmental operations, but also increase demands on the resources of municipal and state agencies to respond to records requests from citizens and the media. The transparency debate will play out at a time of escalating contentiousness between citizens and governmental bodies, posing enhanced challenges and opportunities for public counsel working to maintain governmental functions while encouraging civil discourse with citizens. Local and state governmental bodies will also consider whether limited financial resources necessitate the increased use of public private partnerships for carrying out traditional governmental functions in areas such as construction, education, social welfare services, etc. Because 2014 is a statewide election year we are certain to hear candidates addressing these topics with a variety of proposals.

REAL ESTATE


Michael E. Katin and Andrea A. Hickey

Since many of the Probate registries have been in the process of relocating Probate dockets off-site, title examiners have had great difficulty accessing those records. The Probate registers have become aware of this problem and are in the process of developing some uniformity for access procedures. We are hopeful that this will be resolved in 2014.

In 2013, the effects on foreclosures by the Ibanez and Eaton cases, as well as the revisions of M.G.L. Ch. 244 by way of the Prevention of Unlawful and Unnecessary Foreclosure Act, were making their way into decisions in the courts of the commonwealth and the U.S. Bankruptcy Court. The validity of foreclosures should still be the basis for many of the decisions coming before the courts in 2014.

The Consumer Financial Protection Bureau (CFPB) promulgated its "final" regulations that impact RESPA and the Truth in Lending Act in November. Although these regulations are not scheduled to go into effect until August 2015, we should be seeing many of the changes being implemented in 2014. It appears that the CFPB will incentivize this in light of its announcement of compliance guidelines and other information to help the industry understand, and implement the rules, which will be released over the "coming months."

SOLE PRACTITIONER & SMALL FIRM


Scott D. Goldberg and Beth M. Padellaro

We predict a growing need, and continuing trend, of networking and collaboration for sole practitioners and attorneys at small firms. By the nature of their practices, these attorneys - who constitute the majority of lawyers - benefit greatly from establishing networks of colleagues who they can contact for assistance with issues such as developing theories of a case, reviewing sample pleadings, and referring potential clients to more experienced attorneys and attorneys who concentrate in a specific area of law, to name just a few. Additionally, this network of sole practitioners and small firm lawyers furthers connections and congeniality across the bar. The SPSF council is working toward developing a network system where section members can better, and more easily, assist one another.

YOUNG LAWYERS DIVISION


Brian Bialas and Courtney Shea

We think that the economy will continue to affect young lawyers in 2014. New lawyers will have a harder time finding their first jobs than new lawyers did a decade ago, and all young lawyers will struggle to find consistent streams of work, whether they practice on their own or at a firm. That is why it is especially important for young lawyers to participate in professional organizations like the Massachusetts Bar Association to develop contacts, which can lead to jobs and new business.

©2014 Massachusetts Bar Association