Look, e-discovery is not going away. Doc review (at least English language doc review) will never be high paying or sexy. But, as e-discovery becomes more and more prevalent, it will continue to become a larger part of the legal job market. So, how do you get out of the rut of sitting in a windowless room, making $10 an hour (or less), typing the date of each e-mail you read into the date field of your coding software? How about taking your knowledge of the front line ESI issues (document coding) and learn a little bit about managing ESI projects, starting with how to draft discovery? As we learned yesterday, ESI discovery can be tricky and employers mostly know that, so understanding the concepts behind it can help you move through your career.
Since Bryan Garner was just in my town last weekend, and I’ve been spending a lot of time drafting ESI discovery requests and dealing with opposing counsel’s requests, I have been thinking a lot about drafting proper ESI discovery requests, including proper wording…
One of my all-time favorite eDiscovery cases (which isn’t actually about eDiscovery) came out a few years ago out of the somewhat-obscure Middle District of Florida. On June 6, 2006, in Avista Management, Inc., vs. Wausau Underwriters Insurance Co., Judge Gregory Presnell ordered two Tampa lawyers who had been unable to resolve their dispute over the location of an upcoming deposition to meet at the end of the month on the courthouse steps and “[A]t that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location[.]”
One could presume that the order was motivated by Judge Parnell’s desire to provide the USARPS (motto: “America’s Official Rock, Paper, Scissors League”) with what is almost certainly its first – and last- opportunity to opine publicly about the dangers posed to our civil litigation system from the unregulated use of weapons of mass gaming: “I guarantee you right now,” Mr. Leshem [head of the US Rock, Paper, Scissors League] said, “that both lawyers will open with paper. Lawyers open with paper 67 percent of the time, because they deal with so much paper.”
Mr. Leshem offered to officiate the match. “What I don’t want,” he said, “is some rogue element of rock-paper-scissors coming down from the bench. When the law takes rock-paper-scissors into its own hands, mayhem can occur.”
She’s coming down with a bad case of ‘going to get a pony.’
Remember the “affluenza” kid? His name is Ethan Couch and the teenager went on an alcohol-fueled joyride after a party in the mansion his parents had bought for him. The joyride resulted in the death of 4 people and the injury of multiple others as alcohol-fueled joyrides are wont to do. Except Couch avoided the fate of pretty much any other person who might kill 4 people on the back of a clinical psychologist’s expert opinion that Couch suffered from a mental condition that he coined as “affluenza” — basically as a rich, privileged tool, the kid couldn’t be held responsible for his actions.
Most people found this ridiculous. Elie went so far as to call for the parents to be jailed. Which has a certain Nancy Grace-style emotional appeal, but also kind of feeds the argument that this kid himself should continue to remain shielded from the consequences of his actions. It also fans the flames of the same parent-policing logic that ends with people getting arrested for letting their kids play outside. But in any event, the fact that a juvenile system judge with a reputation for harsh punishments for poor, black kids — she sent a 14-year-old black kid to jail for 10 years for punching a kid who fell and hit his head resulting in his death — sent a 16-year-old, rich, white kid willfully driving drunk to a country club rehab facility — conveniently paid for mostly by taxpayers — exposed everything wrong with privilege in America.
Now the case raises another debate about privilege. One of the victims who survived the accident is suing and wants to see exactly how this clinical psychologist came to his groundbreaking diagnosis that rich kids don’t have to go to jail, and Couch’s lawyers are fighting that disclosure tooth and nail….
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….
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….
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?
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?
* 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]
* 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]
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
Things have changed recently in Korea – a few of our US and UK client firms are looking, very selectively, for a lateral US associate hire. Until just recently, there was not much hiring like this going on in Korea, since US and UK firms started opening offices there. We have already placed two US associates in Korea in the past month at top firms. Most of the hiring partners we work with in Korea do not actively work with other recruiters.
If you are a Korean fluent US associate in London, New York or another major US market, 2nd to 6th year, at a top 20 firm, with cap markets or M&A focus (or mix), or project finance background, and you are interested in lateraling to Korea to a top US or UK firm, please feel free to reach out to us at email@example.com or firstname.lastname@example.org. Our head of Asia, Evan Jowers, was just in Korea recently, and Evan and Robert Kinney will be in Korea in a few weeks. We are in the process of helping several firms open new offices in Korea (a number of which are interviewing our partner level candidates) and also helping existing offices there fill openings.
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