Discovery

Jonathan Vilma

* This is the job that I want. Just running around New York City, and telling people they suck. [Dealbreaker]

* New Orleans Saints linebacker Jonathan Vilma has filed a lawsuit against NFL Commissioner Roger Goodall. I’ve got $100 for anyone who takes Vilma’s lawsuit out with a summary judgment. [New Orleans Times-Picayune]

* The story of Dewey & LeBoeuf, as told through numbers. Legacy Dewey Ballantine folks aren’t going to love this. [Adam Smith Esq.]

* Isn’t this the best way to explain what it’s like to be white? [Kotaku]

* What will the legal profession look like when your kids are going to law school? [Hellerman Baretz]

* Speaking of having children, I wonder if I will become more “prude” when I’m a parent, or at least more critical of graphic displays of sexuality. [Popehat]

* You shouldn’t let your client bring notes to a deposition. Otherwise you will have a huge a-hole. [What About Clients?]

* The Da Silva Moore case already reads like a reality TV show. Is something more pernicious going on beneath the surface? [Ride the Lightning]

It has been quite a while since we have covered a grand mal discovery screw-up here at Above the Law. For a while, we almost started to believe the legal industry as a whole had finally caught up to technology — or at least had figured out how to keep major mistakes under the radar.

Well, our dry spell has ended. As we mentioned yesterday in Non-Sequiturs, the California office of a Biglaw firm handling some high-profile litigation for Goldman Sachs accidentally released an unredacted version of some files that the firm and its clients have spent years trying to keep secret.

Oopsies…

Keep reading to learn more about the case and see which firm reportedly disseminated evidence of the bank’s “naked” short selling…

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For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.

In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.

So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?

My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .

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Judging from our traffic stats and the many emails we’ve received about it, the story of the document controversy involving Greenberg Traurig and its former client, TD Bank, has captured the interest of our Floridian readers. So we’ll do one more story about it for now (and then we may keep our powder dry until after the contempt hearing later this month before Judge Marcia Cooke, when there will be bigger news to report).

In our first story, we discussed the allegations made against Greenberg Traurig and one of its former shareholders, Donna Evans. In our second story, we raised some points in defense of ex-partner Evans and her former firm. We believe in providing both sides of a story here at ATL.

Now we’ll share with you a final rebuttal by critics of GT and Evans….

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Last week we covered a controversy down in south Florida involving Greenberg Traurig. The firm was replaced as counsel in a particular case by its client, TD Bank, after a partner at the firm denied the existence of a document that, it turned out, actually does exist. The partner who allegedly made the statement is no longer with the firm, and next month, Judge Marcia Cooke (S.D. Fla.) will hold a hearing to determine whether the bank should be held in contempt of court as a result of this apparent screw-up.

This does not sound good, to be sure. But subsequent developments, as well as a closer examination of the situation, suggest that GT’s culpability may be overstated….

double red triangle arrows Continue reading “More About the TD Bank To-Do: In Defense of Greenberg Traurig”

Federal judges don’t take kindly to misstatements by counsel appearing before them. And when the judge is unhappy, the client is unhappy. And when the client is unhappy, outside counsel gets cashiered. It’s not a pretty process.

Let’s travel down to south Florida, where an allegedly incorrect statement by a partner at Greenberg Traurig has incurred the wrath of a federal judge — apparently resulting in the client replacing the firm, and the firm parting ways with the partner.

It’s a cautionary tale for litigators….

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Over the last couple of months, we have written a few stories about Magistrate Judge Andrew Peck. Judge Peck generated headlines as the first federal judge to approve a litigation protocol for e-discovery that included predictive coding technology.

For a while, the story was pretty happy-clappy. It was a start of a new era. E-discovery — through predictive coding that had now arrived — would be cheaper, more efficient, and faster. Yay!

But, alas, all is not well in this legal technology paradise. One of the parties in Da Silva Moore v. Publicis Group, the case that started this whole saga, has requested that Judge Peck recuse himself.

They say his enthusiasm for predictive coding crosses the line into partiality…

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I hate to invoke a cliché, but “David versus Goliath” captures the challenge a smaller firm faces when litigating against an Am Law 200 firm. A small firm can feel like David when facing a larger firm that can bring more resources to bear on legal research, drafting motions, reviewing documents, etc.

The challenge increases when applied to clients. Many of my firm’s initial clients were startups or emerging companies with limited litigation budgets. Their adversaries often were much larger, established companies with seemingly unlimited budgets. Thus, we faced not only the challenge of litigating against brand-name firms with hundreds of attorneys, but we also initially had clients who simply could not afford to spend as much in legal fees as their well-heeled opponents.

So how can a small firm, especially representing a smaller company, effectively litigate against a proverbial army of lawyers representing a client to whom money is no object?

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Anyone who works with e-discovery has no doubt encountered the bewildering array of vendors and service providers clamoring for legal technology business. It can be confusing.

As the e-discovery industry has exploded, vendors’ roles have expanded and changed as well. Just a few years ago, it was more common for attorneys and their firms to have to piece together several vendors to form a cohesive e-discovery attack plan. These days, many service providers offer more start-to-finish options.

Even though it is all very technical, vendor work sometimes walks the line between IT work and actual lawyering. The District of Columbia Court of Appeals has become wary of discovery vendors that might offer misleading advertisements about their legal certifications. Last week the Court’s Committee for the Unauthorized Practice of Law (sounds intimidating!) delivered an opinion clarifying some rules relevant to discovery vendors.

While they were at it, the committee delivered a couple solid kidney shots. Ouch….

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When a tipster sent us an e-mail with the subject, “Court awards $700,000+ in sanctions for destruction of FB page,” I thought it sounded like it might be interesting. Because hey, that’s a lot of money.

I didn’t realize it would also be one of the most depressing legal news stories I’ve read since this tragic murder-suicide.

The three-quarters-of-a-million-dollar sanction award was levied against the widower of a woman killed in a car accident and the widower’s lawyer. The ruling was an abrupt table-turn for Isaiah Lester, who had previously won a $10 million wrongful death suit against the driver whose truck overturned and killed his wife.

Keep reading for the depressing details….

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