Discovery Resources

By Mary Mack, Corporate Technology Counsel, Fios.

Social media is emerging as a cottage industry for electronic evidence.  It is now playfully referred to as an electronic “permanent record” in this era of Wikileaks.

“It just makes for a beautiful exhibit, and there’s no longer any question about what was said,” says Cassandra Ferrannini, an employment law attorney with the Sacramento law firm Downey Brand. Conversations are displayed complete with date and timestamps.  Some conversational snippets show up in context, others out of context.

Labor and employment attorneys are aggressively using Facebook and other social media outlets.  All areas of litigation and investigation are using social media to find and vet witnesses, for continue…

Dan Winslow and the International Institute for Conflict Prevention and Resolution just released the model language to reduce the costs of civil litigation at the beginning of a business arrangement.

Rather than call it a Litigation PreNup, the designation is now Economical Litigation Agreement.

After I discussed the Litigation PreNup with Al Driver at Metropolitan Corporate Counsel, many have asked where to get a sample. Here is a link to Dan talking with Al about the promise of the PreNup.

Get your Economical Litigation Agreement or Litigation PreNup here.

by Mary Mack, Corporate Technology Counsel, Fios

Ralph Losey, Brett Anders (both of Jackson Lewis, the national workplace  law firm) and I will finish our discussion of the hot cases of last quarter on Wednesday, August 4, 2010.  Register here.

With an embarrassment of riches of cases to delve into, it was not surprising that we have a couple left over.

We’ll be talking about the Crispin case (Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010)).  This case has the SCA (Stored Communications Act), Facebook, and the balancing act between what is public and what is private.

Bray and Gillespie, the case that eclipses Qualcomm as the most exciting saga of ediscovery mishaps and sanctions, is continue…

Quon – Text Messages at Work

By Mary Mack, Esq., Corporate Technology Counsel, Fios, Inc.

I have no doubt Ralph Losey will take issue with my assessment of the recent Quon case. He and I, along with Brett Anders, will include Quon in a lively Case Law Update. Register here.

The Supreme Court pleasantly surprised worried employers in Quon  (City of Ontario, California, et al. v Quon et al., —S. Ct. —-, 2101 WL 2400087 [June 17, 2010]).The outcome of the case was as favorable to employers as it could possibly be. Even though the employer in the case is a government entity, the Court made it clear that Quon applies to private employers continue…

The ever alert Ralph Losey posted a note about another amendment to the Pension Committee decision by Judge Shira Scheindlin:

At page 10, lines 7-10 replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issued in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.

Judge Scheindlin’s last amendment was to correct language indicating all backup tapes should be continue…

by Mary Mack, Corporate Technology Counsel, Fios.

Duke University hosted the 2010 Civil Litigation Conference for the second day, again live streamed. Ediscovery was discussed through the day, even when the topic was fact pleading or other procedural elements.

There was a consensus that preservation needs to be called out, triggers to preserve identified and a more clear safe harbor constructed (FRCP 37(e)). Other consensus items include the need for judicial management, quick rulings and education of the bench and bar.  The Seventh Circuit pilot project was very well received, as were state innovations (including Oregon).

There is less consensus on fact pleading, early mandatory disclosures, separate sets of rules for complex cases and what continue…

Duke University hosted the 2010 Civil Litigation Conference today in person and amazingly, live streamed.

Both video and audio were available and good, opening up the rule making process in an unprecedented way.  There was frank and lively discussion. It was a demonstration why public trials are important to model behavior when ideas are contested and passions high.

The participants had clearly done their homework as they quoted liberally from each other’s submitted papers to agree with some and disagree with other points.  I say point rather than argument, as conference encouraged interaction.

Day 2 of the conference will also be live streamed.  At the risk of degrading the feed, here is continue…

Congratulations to Jackson Lewis and Ralph Losey as he joins the firm tomorrow.  My secret thought is that Jackson Lewis will emerge as an ediscovery powerhouse as Ralph takes the reins of their national ediscovery practice.  With the Lilly Ledbetter Act extending the statute of limitations for employment claims, this firm will be very well positioned to serve their clients.  Ralph is a fearless advocate for his clients from both a legal perspective and a value perspective, as well as a change agent for legal education.  Here’s hoping he will continue his ediscovery novellas and MTV videos.

The new decade has begun with conflicting and complementary opinions from Judge Rosenthal of Texas and Judge Scheindlin of New York. These opinions, penned by United States District Court judges, will frame the behavior and motion practice around federal e-discovery sanctions into the near future.

Before the ink was dry on Judge Scheindlin’s groundbreaking “no written legal hold = gross negligence” opinion in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), subtitled “Zubulake Revisited: Six Years Later,” Judge Rosenthal, in Rimkus v. Cammarata, 07-cv-00405 (S.D. Tex. Feb. 19, 2010) drew careful lines continue…

The 2010 Spring Meeting of the ABA International Law Committee will be held April 13-17 at the Grand Hyatt New York.

The meeting will feature the exhibition, “Lawyers Without Rights,” created by the German Federal Bar and made available for the first time in the United States. The exhibit features detailed and poignant accounts of the lives and fates of Jewish lawyers throughout Germany who suffered at the hands of the Nazi regime.

On April 14, the “Managing Partner Summit” will bring together leaders from 20 law firms from around the world to discuss shifting paradigms in the legal profession caused by the global economic crisis.

On April 16, experts from academia, and continue…