Discovery

The information age we live in can be a blessing and a curse. Few fields demonstrate this truth more persuasively than the realm of electronic discovery.

During a panel here at the Legal Technology Leadership Summit on the theft and exfiltration of intellectual property, the panelists discussed the exponential growth in information densities, the increasing importance of IP, and the challenge that evolving technology presents to the governing legal frameworks. As one panelist noted: “Technology leaps, the law creeps.”

What does rapidly changing technology mean for the e-discovery world? And what are some considerations that in-house lawyers should keep in mind when responding to e-discovery requests?

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Judge Sam Sparks

You do not want to mess with Judge Sam Sparks, of the U.S. District Court for the Western District of Texas. We recently wrote about Judge Sparks accusing a lawyer appearing before him of incompetence — in a harshly worded order that pulled no punches.

Judge Sparks has been doling out stinging benchslaps for years, and he’s gotten pretty good at it. In particular, His Honor has little patience for discovery disputes. In 2007, for example, he smacked down some lawyers squabbling over a deposition — in rhymed couplets, no less.

Last week, Judge Sparks lit more lawyers on fire….

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Elie wishes he had taken the nuggets.

* What can law firms learn from Folgers crystals? Maybe how to provide legal services rich enough to be served to America’s finest corporations. [What About Clients?]

* A look at what $100,000 in law school loans could have purchased instead — e.g., 505,050 chicken nuggets from Wendy’s. [Constitutional Daily]

* What kind of “reasonable accommodations” are alcoholics entitled to in the workplace? A three-martini mojito lunch sounds good to me. [Overlawyered]

* Some thoughts from Henry Blodget on Groupon and the SEC-mandated “quiet period.” Any thoughts, readers, on Blodget’s take on attorney/client privilege? [Business Insider]

* Professor Ann Althouse on the exoneration of Justice David Prosser (noted in Morning Docket): “A justice is despised because his decisions do not please liberals, and so, without thought, they forgot about things liberals like to love themselves for caring about, such as fairness and due process.” [Althouse]

Is it wrong to find Justin Bieber totally hot? Just askin'....

* E-discovery is moving to the cloud. What are the opportunities and the risks? Ben Kerschberg and Bret Laughlin discuss. [Forbes]

* Speaking of e-discovery, the DISH Network and Redgrave LLP are sponsoring an e-discovery research and writing competition, open to law students. [dishdiscovery]

* Law librarian Joe Hodnicki weighs in on the controversy over ScamProf aka Paul Campos and his controversial blog. [Law Librarian Blog]

* If you share Staci’s opinion that Justin Bieber “kind of looks like a girl,” here’s some support for your viewpoint. [Fashionista]

* The American Constitution Society is holding an online symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. [ACSblog]

When you’re in private practice, people ask you tough questions. “During the proxy fight, a trial court held that our proxy statement was false and misleading. We settled that case, so that judgment is final. We’ve now been hit with a 10b-5 shareholder suit, and the plaintiffs have filed a motion saying that the earlier proxy decision is binding on the question whether our statements were false and misleading. How do we defeat that motion?”

Then you move in-house, and the question changes: “How can we reduce the cost of electronic discovery and document review?”

Oh, how the mighty have fallen.

But, when you’re forced to think for a minute about electronic discovery and document review, you realize that the battle previously waged between law firms and third-party vendors to capture this work is now largely over: Document review, which was historically an important profit center for large law firms, has moved permanently into the hands of third-party vendors. That sea change was not prompted by the recession, and things are not going to return to the old “normal” after the economy recovers. Companies that continue to rely on law firms, rather than third-party vendors, to do large document reviews are probably making a mistake, and law firms that are counting on document review projects to resuscitate their profitability are betting on the wrong horse.

Why?

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Tyler Clementi and Dharun Ravi

As we mentioned in Friday’s Non-Sequiturs, the legal team of Dharun Ravi has moved to dismiss the criminal charges against Ravi stemming from the suicide of Tyler Clementi. As many of you know, Clementi committed suicide after Ravi streamed video of Clementi hooking up with another guy.

Lawyers to Dharun Ravi discovered comments from Clementi suggesting that Clementi was concerned about his parents’ reaction to his sexual orientation. Other Clementi messages are getting more headlines. According to New York Magazine, Clementi “also made jokes about Ravi’s family, calling them ‘sooo indian / first gen americanish…his rents defs owna dunkin [donuts].’ In other words, typical teen asshole gossip, on both sides.”

Typical is how I’ve been describing Ravi’s behavior from the very beginning. I didn’t need the system digging into the past of a suicide victim to determine whether his roommate “caused” him to take his own life.

But this is what many people wanted. So now that we’re here, I’m wondering if people are happy….

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A wise man once said: “There, but for the grace of God, go I.”

I think of this whenever there are claims of attorneys royally screwing up e-discovery. It’s easy to indulge in some schadenfreude and say, “What suckers!” But truthfully, many firms — even the big, prestigious ones — are more vulnerable than they’d like to admit.

This month, McDermott Will & Emery ended up in the bright, unpleasant spotlight, because a former client sued the firm for malpractice.

Why, you might ask? The firm allegedly botched a client’s e-discovery.

Keep reading to see how the Am Law 100 firm became the e-discovery dunce du jour….

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I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.

This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.

The judges think clawback provisions are a good idea; in most situations, it strikes me that the judges are right. So what are FRE 502 clawback provisions, and why are inside and outside counsel routinely missing this trick?

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Burka in the court?

* The three defendants in the civil wrongful-death action brought by Robert Wone’s widow are keeping their mouths shut. [National Law Journal]

* But their former house is open — and once again on the market, for the tidy sum of $1.6 million. [Who Murdered Robert Wone?]

* Professor Eugene Volokh wants to know, with respect to wearing religious head coverings to court, can’t we all just get along? [Volokh Conspiracy]

Lavi Soloway

* Congratulations to Lavi Soloway and his client, Henry Velandia, whose deportation proceedings have been adjourned — due in part to a recent decision by Attorney General Eric Holder, vacating a BIA decision in another case involving a same-sex couple. [Poliglot / Metro Weekly]

* Speaking of judges and gay marriage, maybe Justice Kennedy should trade Salzburg for São Paulo this summer. [ABA Journal]

* What is behind the spring bonus phenomenon? One big factor: the boom in the lateral hiring market. [Vault's Law Blog]

* Speaking of the state of the legal economy, we’ve already linked to the big Economist article on the legal profession — but check out this great photo, in case you missed it. [The Economist / Tumblr]

* Are harsh sanctions for discovery violations a good thing? Ben Kerschberg thinks so. [Law & Technology / Forbes]

* Don’t forget to wish your mom a Happy Mother’s Day! (Unless your mom is Vivia Chen.) [The Careerist]

* Litigators: Do you know about the usefulness of Rule 56(f) 56(d)? [What About Clients?]

* When Glenn Reynolds is away, Ann Althouse will play. [Althouse via Instapundit]

* Were your law school classmates this attractive? Probably not. [YouTube]

ALL YOUR DOCS ARE BELONG TO US.

Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

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Recently on my blog I have been posting different viewpoints as to whether the e-discovery industry should have its own specialized certification. In the past year there has been a push by several organizations to establish standards of testing in the industry.  In fact, a few weeks ago, the newly formed Association of Certified E-Discovery Specialists or ACEDS (prenounced “A-Saids”) held an inaugural conference in Hollywood, Florida. Although ACEDS was just founded last year by the Intriago Group, led by a former McDermott Will & Emery partner, Charles Intriago, the meeting had over 300 attendees — not bad for a first conference.

I had the chance to speak with two attorneys who spoke at the ACEDS meeting. They provided me with a better understanding of whether the movement toward certification is simply a passing trend or a sign of things to come…

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