Discovery

Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.

When it comes to depositions, it doesn’t always reach “fatboy” levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.

Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….

double red triangle arrows Continue reading “Biglaw Firm Ordered To Make A Video Apologizing For Discovery Abuses”

Rarely are the stakes of a benchslap elevated to the level of life and death.

And yet, a federal judge made just such a life and death call recently in swatting down an annoying lawyer wasting the court’s time with a litany of discovery disputes.

Thankfully, despite the stakes it’s a pretty funny benchslap….

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Isn’t discovery fun?

You sometimes hear Biglaw litigators complain about courts not publishing enough opinions about discovery issues. Discovery (especially e-discovery) is such a major — and majorly expensive — part of the complex litigation in which large firms specialize, but there aren’t that many decisions on the books over such nuts-and-bolts issues as responsiveness, privilege, and work-product doctrines.

So it’s noteworthy that the Massachusetts Appeals Court just issued an opinion featuring extended discussion of the work-product doctrine. Some Boston Biglaw litigators will surely welcome the additional guidance on this subject.

But not all of Boston Biglaw will be pleased by this decision. Certainly not the major firm that could wind up getting hit with sanctions as a result….

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It’s the nightmare scenario of every discovery: what if the client forged all these documents? There really are very few checks upon your own client beyond crafting careful instructions and trusting that it dutifully fulfilled all of them in gathering documents for your review (or at least your contractors’ review). Hounding the client for assurances can only go so far if the client is committed to deceiving the tribunal.

That’s the nightmare a Biglaw firm just faced, and after the firm won a big jury verdict in its client’s favor, the truth came out. How would the firm react?

double red triangle arrows Continue reading “Biglaw Firm Withdraws, Citing Client’s Systematic Falsification Of Evidence”

Yes, benchslaps are great fun to read about, especially if you enjoy a little schadenfreude. But benchslaps are not fun to receive — and they’re not always justified.

Because of the prestige of judicial office, judges generally get the benefit of the doubt when dishing out benchslaps. But sometimes judges go too far. For example, some observers felt that Judge Richard Posner crossed the line when interrogating a Jones Day partner during a recent Seventh Circuit argument.

This brings us to today’s benchslap — directed at a lawyer for the federal government, no less. It’s harsh, but is it warranted?

double red triangle arrows Continue reading “Benchslap Of The Day: Just. Produce. The Documents!”

Judge Diarmuid O’Scannlain (my former boss)

* Virginia is for lovers — gay and straight alike. Judge Arenda L. Wright Allen (E.D. Va.) just struck down the state’s ban on same-sex marriage (but stayed her ruling pending appeal). Happy Valentine’s Day! [Washington Post]

* The Ninth Circuit, in an opinion by Judge Diarmuid O’Scannlain, issued a major Second Amendment ruling. Is it correct, and what will happen next? Professor Eugene Volokh shares his thoughts. [Volokh Conspiracy; Volokh Conspiracy]

* Which leading law firms are trying to make the Comcast/Time Warner Cable monstrosity into reality? [American Lawyer]

* Did a Biglaw firm make a big-time mistake by blowing a deadline to appeal a $40 million verdict? [Law360 (sub. req.)]

* Speaking of screw-ups, making them in the e-discovery realm can be costly — a lesson that California is learning the hard way, to the tune of $32 million. [ACEDS]

* Former New Orleans Mayor Ray Nagin thought he’d be acquitted; he thought wrong. [ABA Journal]

* George Washington wasn’t a member of the one of the 8 magic groups — but his story still illustrates the truth of The Triple Package (affiliate link), according to Washington biographer Logan Beirne. [Fox News]

* Authorities have made an arrest for the package bombing that killed a retired Tennessee lawyer and his wife. [CNN]

* The Tenth Circuit will not be blocking same-sex marriages from occurring in Utah, so the next stop will be Supreme Court intervention. Sorry, but we have a feeling that Justice Sonia Sotomayor isn’t going to be too helpful with that. [MSNBC]

* Winston & Strawn, if you’re overbilling on pro bono motions and you want fees, you might want to be more descriptive. Please tell this judge what “preparation for filing” even means, and why you spent more than four hours doing it. [New York Law Journal]

* This judge felt she was “being played with,” so she took a man’s kid away from him during Christmas. Now a judicial ethics commission is showing her that it’s not one to be played with. [Texas Lawyer]

* Yay, happy news! Chapman Law’s associate dean for student affairs really takes her job responsibilities to heart. She’s performed several wedding ceremonies for both students and alumni. [National Law Journal]

* The Indian diplomat who got strip-searched was arrested over a silly mistake, says her lawyer. It’s too bad that a lack of reading comprehension can result in having to bend over and spread ‘em. [Bloomberg]

I found today’s piece on contract attorneys interesting, given that I just attended an e-discovery CLE program run by a local firm (Ward Greenberg) last week. The program centered around the practicalities and ethics of e-discovery and the case law surrounding those topics.

I admit to being taken aback at how times have changed since I was utilizing an OCR viewer to review documents while searching for keywords to code. Those were the days. As mentioned in the contract attorney column, doc review was a sure way to meet and exceed billable-hour targets simply by doing essentially monkey work. And the firms were all too happy to bill me at out at hundreds of dollars per hour for looking over repetitive and duplicative documents.

Now that I am in-house, I would have a conniption fit if a firm tried to pull such a stunt — and I don’t think many firms would….

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Martin Lipton?

* Former SCOTUS clerks earn more money for having clerked at the high court than SCOTUS justices earn for their yearly salaries. Consider how ridiculous that is. [The Economist]

* As it turns out, the National Security Agency oversteps its legal authority thousands of times each year, but that’s only because it’s a “human-run agency.” [Washington Post]

* Federal judges have come together to bemoan sequestration. “We do not have projects or programs to cut; we only have people.” Eep! Don’t give them any ideas. [National Law Journal]

* Ready, set, lawgasm! The comment period for proposed amendments to the Federal Rules of Civil Procedure opened up yesterday, and yet again, e-discovery rules are on the table for debate. [Forbes]

* NYU professors want Martin Lipton to step down from the school’s board of trustees, but the Wachtell Lipton founding partner has had a honey badger-esque response — he don’t give a s**t. [Am Law Daily]

* As was widely expected, Mayor Michael Bloomberg’s army of New York City lawyers will soon take the first step to appeal Judge Shira Scheindlin’s stop-and-frisk ruling. [New York Law Journal (sub. req.)]

* A West Virginia judge was federally indicted for attempting to frame his secretary’s husband with drug charges. Did we mention that the secretary is the judge’s ex-lover? Quite dramatic. [Charleston Gazette]

* Consortium: Not just for straight couples. A same-sex couple in Pennsylvania is trying to appeal the dismissal of a loss of consortium claim in light of the Supreme Court’s Windsor ruling. [Legal Intelligencer]

* Christian Gerhartsreiter, aka poseur heir Clark Rockefeller, was just sentenced to 27 years to life in prison in a California cold-case murder. Maybe Lifetime will make a sequel to that god-awful movie. [Toronto Star]

* Jacques Vergès, defender of notorious villains and perpetual devil’s advocate, RIP. [New York Times]

Kamala Harris

* The Poly Prep alumni who settled their sex abuse suit against the school are going after O’Melveny & Myers for allegedly playing a part in prolonging the litigation by doing what lawyers do best: lying. [Am Law Daily]

* If you’ve got a case up on appeal and you’re like a virgin, giving oral (arguments) for the very first time, then you should probably consider taking a look at the top 10 tips that’ll help you to prepare for it. [The Recorder]

* The California Supreme Court denied petitions from Proposition 8 proponents seeking to enforce a ban on same-sex marriage across the state. Kamala Harris, the country’s best looking AG, approves. [BuzzFeed]

* The Chapman School of Law will change its name after receiving the second-largest donation ever made to a law school. N.B. The donor isn’t a law school graduate, which certainly explains why he has cash to spare. [National Law Journal]

* Notebooks from the most famous law school you’ve never heard of are now on digital display thanks to Harvard Law. Unlike today’s students, Litchfield lawyers had lovely handwriting. [Brainiac / Boston Globe]

* Keep ya head up: Legendary lawyer Roger Rosen, whose clients range from O.J. Simpson to Phil Spector, will hang up his shingle to avoid prosecution for leaking info to Tupac’s killers. [New York Post]

* Just think, if the judge in Paula Deen’s case had permitted counsel to stay discovery, perhaps the celebrity chef wouldn’t have been able to serve up a slice of her piping hot racism casserole. [Daily Report]

* Sure, Lamar Odom allegedly cheated on Khloe Kardashian with a lawyer, but that doesn’t mean they’re going to get divorced. If they do, we’ll be there for the train wreck. [Ministry of Gossip / Los Angeles Times]

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