Federal Rules of Civil Procedure

Letter From LegalTech: The Thrills of E-Discovery

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‘If only I had an eDiscovery solution for compliance and discovery requests to efficiently manage, identify, analyze, and produce potentially responsive information from a single, unified platform. Of course, it would be hosted in a private, cloud-based environment.’

While technology has reduced costs for many areas of legal practice (e.g., research), the centrality of electronically stored information to complex civil litigation has sent discovery costs skyrocketing. Hence the rapid proliferation of e-discovery vendors like so many remoras on the Biglaw shark. Nobody seems to know how large the e-discovery market is — estimates range from 1.2 to 2.8 billion dollars — but everyone agree it’s not going anywhere. We’re never going back to sorting through those boxes of documents in that proverbial warehouse. New amendments to the FRCP specifically dealing with e-discovery became effective way back in December 2006, but if the e-discovery vendors (evangelists?) at this week’s LegalTech tradeshow are to be believed, we are only in the technology’s infancy in terms of its development and impact on the legal profession.

At LegalTech, we attended a “supersession” presented by e-discovery provider Planet Data, promising to present “judicial, industry, legal, and media perspectives on where legal technology is taking litigation and how it affects you.” Don’t be jealous….

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Arthur Miller Puts Justice Scalia and Others on Panel; Good Thing Everybody Did the Reading

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So I went to the annual conference of the Association of American Law Schools in New Orleans this past weekend. The place was lousy with law school deans and I had a ton of interesting, off-the-record conversations that I can’t report on. I also spent a weekend in New Orleans that involved all sorts of other things I can’t report on. It was fun and informative, you just have to trust me.

One thing I can report on was an AALS panel I attended, “The 75th Anniversary of the Federal Rules of Civil Procedure: Looking Back, Looking Ahead.” Now… I know that doesn’t scream “drop your panties,” but the panel was moderated by Arthur Miller. Yeah, that Arthur Miller, the famous law professor who wrote Death of A Civil Procedure Rules Salesman or something. And the all-star panel he was moderating included Justice Antonin Scalia… a person Miller doesn’t really agree with when it comes to rules. I had to go. Literally, I had to.

Unfortunately, the conversation was completely over my head. I’m not embarrassed to say that. Other people in my position may pretend that they got the most out of this discussion between Miller, Scalia, Biglaw partners, district judges, and others who have advised the Rules Committee. To me it sounded like, “TWOMBLY wha wha whaa, but in IQBAL wha wha wha wha! Wha? Given TWOMBLY’s wha and IQBAL’s wha, how could you wha wha whaaa?? [Laughter]”

That doesn’t mean I didn’t learn anything….

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Was Judge Posner a Dodo in His Ostrich Opinion?

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Of course not! But the headline got your attention, didn’t it? The notion of Judge Richard Posner as being anything other than a genius will certainly make people sit up and take notice. There’s a reason why there’s a Facebook group called Richard Posner for Philosopher King (of which I am a proud member).

It should be noted, however, that Judge Posner’s opinion in Gonzalez-Servin v. Ford Motor Co. was not 100 percent perfect. It initially contained some infelicitous wording — which has since been fixed.

Let’s look at the language that was perhaps imprecise….

UPDATE (4 PM): Additional comment from Judge Posner, added after the jump.

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A Reverse Benchslap? Chastised Lawyer Lashes Out at Judge Posner

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On Thanksgiving Day, while you were enjoying your turkey (or tofurkey), we wrote about a different bird: namely, the ostrich. In a somewhat snarky opinion, Judge Richard Posner of the Seventh Circuit compared a lawyer appearing before him to an ostrich: “The ostrich is a noble animal, but not a proper model for an appellate advocate. The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.’”

Ouch. Judge Posner even included a photo (above right) of a man in a suit burying his head in the sand.

What did the lawyer in question, David “Mac” McKeand of Houston, have to say for himself? And what did McKeand have to say about Judge Posner?

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Thanksgiving Greetings from Above the Law!
(And a bonus benchslap from Judge Posner.)

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Happy Thanksgiving, from your friends at Above the Law. As always, we give thanks to our readers, our tipsters, our advertisers, and even our commenters.

We also give thanks to Judge Richard Posner. This brilliant and hilarious jurist has just given us something to chuckle over as we munch on our Thanksgiving turkey.

This opinion by Judge Posner, handed down yesterday, could be viewed as “giving the bird” to an offending attorney. And the bird in question is not a turkey. Can you guess which bird is involved?

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(And a bonus benchslap from Judge Posner.)“

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Facebook Spoliation Costs Widower and His Attorney $700K in Sanctions

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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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