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?
* 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]
* 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]
* 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]
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….
Recently on my blog I have been posting differentviewpoints 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…
From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out. People get bored, people get headaches. Computers don’t.
From “concept searching” to “cloud computing,” every year there are new buzz words and catch phrases that enter into the lexicon of legal technology. Of course, when you are dealing with technology of any sort, you should expect to update jargon regularly (such as from 3G to 4G to 5G, whatever that means).
2011 is shaping up to be no different. This year’s “it” phrase is already emerging in the industry. It evolved from the buzz words of yesteryear, and if this new phraseology is worth its salt, these new advances could drastically change how law is practiced for years to come.
Daniel de Juan, a sales engineer from Mitratech, summed up perfectly what LegalTech was like for me this year: “Being at LegalTech is almost like being at a casino, in the sense that you lose all track of time.”
Two years ago, I found the conference to be pretty intimidating, and that was when the conference was much smaller due to the weak economy. Last year, LegalTech New York was much bigger, and I found it slightly overwhelming. This year, due to some bad planning on my part, I came home from LegalTech utterly exhausted.
It seems I wasn’t the only one who felt this way. After a quick search on the Internet, I have seen only a few things written up about the conference, so I’m guessing many people went through the same experience. (For example, I spoke with members of The Posse List on the first night, and they told me that they were gearing up to do 36 interviews during the two and a half day conference — so it must have been a whirlwind for them as well.)
That said, here are some musings from my adventure last week….
I know lots of guys fantasize about boinking “barely legal” teenage girls. Not me, I like women: fully formed, adult women. There’s just something unseemly about older men salivating over girls who could have been in high school a year ago. Call me crazy, but it’s just more interesting as an adult to be intimate with other adults.
Similarly, I like my lawyers to actually practice law. There’s something unseemly about watching market forces turn law school graduates into glorified paralegals and secretaries. Call me a prude, but there’s just something gross about seeing young, nubile attorneys going around begging for document review positions. These people spent three years of their lives and six figures of their (or someone else’s) money to get law degrees; they should have something to show for their efforts.
But even if I don’t like to look, I can’t deny that this is happening. We are all living in a time that will be studied by future generations: a time when attorney career paths bifurcated, between traditional partnership-track associates and what I’ll call “barely legal” career paths….
Ed. note: Gabe Acevedo will be covering LegalTech for Above the Law this year. If you are interested in communicating with someone from ATL about LegalTech coverage, please contact Gabe at firstname.lastname@example.org. Thanks.
It seems that judges are no longer afraid to unleash the power of the gavel when it comes to e-discovery violations.
This week, The Rundown is going international. LegalTech is just around the corner, and there will be a solid contingent of lawyers from the United Kingdom in attendance.
Speaking of LegalTech, I’m going to be covering the conference for Above the Law. If you are interested in communicating with someone from ATL about LegalTech coverage, please contact me at email@example.com. Thanks.
In this week’s Rundown, we will touch on the LegalTech conference. We’ll also link to a quick interview with the General Counsel of the UK’s Serious Fraud Office, who recently discussed the UK Bribery act and its connection to e-discovery.
Staying in foreign territory, why has there been a recent boom in cases requiring foreign languages? I also highlight two articles of interest on outsourcing…
Jiminy jillickers! ATL editors are going all over the place over the next month or so. Or at least all over the Eastern Seaboard. If we aren’t heading to your neck of the woods on these trips, never fear, we may hit you up on the next time around. We’ve already hit up Houston, Chicago, Seattle, San Francisco, and Los Angeles in the past year.
Kinney Recruiting’sEvan Jowers is currently in Hong Kong for client meetings and still has a few slots available through October 22. Evan will also be in Hong Kong November 14 to December 15. Further, Robert Kinney has been in Frankfurt and Munich this week and is available for meetings with our Germany based readers.
One of our key law firm clients has referred us to one of their important clients in the US, Europe and China – a leading global technology supplier for the auto industry – in order to handle their search for a new Asia General Counsel and Asia Chief Compliance Officer.
Kinney is exclusively handling this in-house search.
This position will have a lot of responsibility and include supervision of eight attorneys underneath them in the Asia in-house team. The new hire will report directly to the global general counsel and global chief compliance officer, who is based in the US. The new hire’s ability to make judgement calls is going to be as important as their technical skill set background.
The position is based in Shanghai and will deal with the company’s operations all over Asia and also in India, including frequent acquisitions in the region.
It is expected that the new hire will come from a top US firm’s Shanghai, Beijing or Hong Kong offices, currently in a top flight corporate practice at the senior associate, counsel or partner level. Of course, the candidate can be currently in a relevant in-house role.
The JOBS Act created new tools for companies to publicly advertise securities deals online. As a result, thousands of new deals have hit the market and hundreds of millions in capital has been raised, spurring a wealth of new business development opportunities for attorneys.
Fund deals, startup capital raises, PIPE deals and loan syndicates are just a handful of the transactions benefiting from the JOBS Act. InvestorID FirmTM is a platform designed to help attorneys equip their clients with the workflow, marketing and compliance tools to publicly solicit a securities offering online. By providing clients with the tools to painlessly navigate the regulatory landscape of general solicitation, InvestorID FirmTM helps attorneys add value above just legal services.
The Jumpstart Our Business Startups Act (JOBS Act) went into effect in 2013 and permits Regulation D offerings of securities to be advertised publicly. This means that funds and companies can now use social media, emails and web sites to market transactions to new “accredited” investors.
However, with these new powers come new pain points. InvestorID FirmTM provides a secure, fully hosted, cloud-based platform with a breadth of tools for your clients, including: