Pocket Guide to Electronic Evidence, for Federal Judges

February 5, 2008

Judges need to keep learning too, and a major source of education for them is the Federal Judicial Center, an organization dedicated to judicial education. In fact, the FJC site is pretty cool. For example, here is a page that provides the biography of every federal judge (all courts, from District Court to Supreme Court), since 1789. Here is the bio of Judge Andrew A. Caffrey (deceased), who made me sweat quite a bit during this 37 day trial back in the early 1980s. In any event, the FJC publishes various learning materials for judges, and last year they published a short work titled, Managing Discovery of Electronic Information: A Pocket Guide for Judges, authored by Judge Barbara J. Rothstein and former U.S. Magistrate Ronald J. Hedges. As I’ve noted in the past, electronically stored information (or ESI, as its known), presents enormous challenges to lawyers and judges, almost all of whom were educated long before the last decade’s explosion in ESI. This Pocket Guide is important reading for lawyers practicing in the federal courts since it’s reasonable to assume that (a) the federal judge before whom you’re appearing probably has a copy sitting on the corner of his or her desk, gratis from the FJC, and (b) it may constitute the entirety, or close to it, of what the judge knows about ESI.

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Amazon Caught in Common Settlement Trap

January 16, 2008

If you’re in the middle of a trial, don’t tell the judge that you’ve settled the case unless you absolutely, positively mean it. Amazon fell into this trap in its recent litigation with Basis Technology, a Massachusetts linguistics software company. On the third day of trial over a dispute arising out of a contractual relationship the parties informed the judge that the case had been settled. The judge ended the trial, but the settlement agreement that the parties then attempted to negotiate for signature foundered over the calculation of Amazon’s minority stock ownership in Basis, an important element of the settlement. After the dispute was brought to the attention of the trial judge she examined the negotiations and held that the intention of the parties had been to settle. She ruled that all of the material terms of the settlement had been agreed upon, and that Amazon’s objection to the stock calculation was a “post hoc objection” insufficient to derail the settlement. The trial judge refused to reopen the trial, and entered judgment on the terms sought by Basis. Amazon appealed the judgment entered by the trial court, but the Appeals Court rejected the appeal. In addition to affirming the reasoning of the trial court judge, the Appeals Court emphasized an important principle, long recognized by many courts: when you report a case settled during trial, the court will bend…

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Lawyers Sanctioned $8.5 Million and Reported to State Bar Over Failure to Produce Electronic Evidence

January 12, 2008

When I was a new lawyer, working at Howrey in Washington, D.C, the firm ‘s client, Litton Industries, was sanctioned in the amount of $10 million for discovery misconduct – the failure to produce relevant documents during discovery. But for the sanction, Litton would have been entitled to an award of its costs and attorneys fees in the litigation, which it had won. I suspect, however, that Litton (and Howrey) took this with good graces – Litton had been awarded $277 million in damages. See Litton Systems, Inc. v. AT&T, 91 F.R.D. 574 (S.D. N.Y 1981), aff’d, 700 F.2d 785 (2nd Cir. 1983). Ironically, the documents in question (which were produced very late but before trial) were ruled inadmissible at trial, and therefore the defendant suffered no prejudice as a result of the late production. Even though I was not involved in this case while at Howrey, this painful episode for the firm and the lawyers directly involved left a lasting memory upon my young and impressionable mind, and I recalled it as I read about the pickle in which a group of California lawyers have found themselves in the patent case Qualcomm v. Broadcom. In the Qualcomm case a key issue was whether Qualcomm, which accused Broadcom of patent infringement, had participated in the Joint Video Team (“JVT”), a standards-setting body. Broadcom aggresively sought discovery from Qualcomm on its…

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Are You Serious, Counselor?

November 29, 2007

One of the many oddities of the legal profession is that judges have to take truly bizarre allegations seriously, and use detailed legal logic to dismiss them. This is like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival. You see this most often in pro se lawsuits brought by prison inmates who are challenging their convictions or treatment during incarceration. You see it a lot less often in the rarified world of intellectual property litigation. However, a case decided earlier this year is a good example of this in just that context. Harding Earley (the Harding firm) is a law firm ouside Philadelphia. It defended a client in a case alleging trade secret misapropriation and trademark infringment, brought by Healthcare Advocates, Inc. However, by doing so the Harding firm itself attracted the wrath of Healthcare Advocates, and was sued by Healthcare for copyright infringment and various related claims. This suit garnered some attention at the time it was filed, and I wrote about it here, in a blog entry titled The Wayback Machine and the DMCA. Rather than repeat the basic facts here, I refer you to the original article. The case has now been decided by the Federal District Court for the Eastern District of Pennsylvania (Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey). The issues presented, and their resolution by the…

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SJC Briefs Available Online

November 26, 2007

Recently, I wrote an entry describing how ScotusBlog was making available online every brief filed in the Supreme Court (where the Court has accepted cert.). Now, the Massachusetts Supreme Judicial Court is making all briefs filed in its cases availabe on the SJC website. These resources are a windfall to practitioners, who can study the research and arguments made by other attorneys, rather than tackling difficult legal issues cold. These resources (unimaginable in the pre-Internet age) can, if used properly, make practitioners both more efficient and more sophisticated in evaluating effective legal arguments.

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"If I owned Texas and Hell, I would rent Texas and live in Hell"

November 14, 2007

This quote, attributed to General Phillip Sheridan in 1868, describes how many patent defendants feel about Texas, and particularly Marshall, Texas, which has become a patent litigation black hole, sucking in unwilling defendants from around the nation. A blog, titled the Patent Troll Tracker, closely follows events in Marshall. Here is an abbreviated excerpt from a recent post concerning patent litigation in Marshall: This is really the year of the patent troll. Last year, approximately 6,000 defendants were sued nationwide in about 2,800 patent cases. This year, the 6,000th defendant was sued sometime in early October. With the number of cases up nationwide probably 5% over last year, we’re still projected for at least a 30% increase in the number of defendants sued. More on that data in a later post. Why? It’s because of the numerous multi-defendant patent litigation cases being brought by non-practicing entities and patent trolls in the Eastern District of Texas. . . . Think about it. When else in our nation’s history have we experienced a 30+% increase in the number of patent claims in one year? Now think about why we are currently experiencing this extreme uptick in patent litigation. It’s simple: patents, at least in the eyes of the market, are overvalued right now. Damages are being awarded in patent cases without basis in reality, and out of proportion to the actual value…

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The Massachusetts "Guide" to Evidence

October 16, 2007

Courts, Litigation. Back in the early 1980s, when I was new to the Massachusetts Bar, there was an effort by the organized bar to codify the rules of evidence. That effort failed, and to this day the rules of evidence are a confusing patchwork of common law and legislative enactment. The “go to” source for the law of evidence has been, in the memory of almost all living Massachusetts attorneys, the Handbook of Massachusetts Evidence (8th Ed. 2006), by the former Chief Judge of the Supreme Judicial Court, Paul Liacos, and currently edited by Mark Brodin and Michael Avery. (The previous editions of this work were published in 1940, 1948, 1956, 1967 (when Justice Liacos took over), 1981 and 1993). However, the long-dead phoenix of evidence codification may be rising from the ashes, albeit in a slightly different form. In 2006 the SJC established an advisory committee to develop a “Guide” to evidence (not to be confused with “Rules” of evidence), and that Guide is now in its proposed form. The draft Massachusetts Guide to Evidence is available here (a 226 page pdf file). Not surprisingly, the Guide makes unabashed and extensive use of the Proposed Rules of Evidence which, although never formally adopted, have been cited in Liacos and to trial courts since their “non-adoption” in 1982. Go figure.

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July 25, 2007 is a very cool new legal research site that I stumbled upon. What I particularly like is its “front end” for research in the Case Management/Electronic Case Files (ECF) system, which has become extremely comprehensive since most federal district courts now mandate electronic filing. One part of the site, Federal District Court Filings and Dockets, gives much easier access to the ECF system than the ECF front end, which I’ve always found to be awkward. Justia allows you to look (for example) for all patent cases filed between any two dates, either nationally or in a particular district. Ultimately, Justia dumps you into the ECF system, and you have to be a paid subscriber to access PDF files at eight cents a page. The site has a number of other interesting areas to explore, such as a Supreme Court center and a searchable collection of legal blogs and podcasts.

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Judges For Life

July 19, 2007

Andy Updegrove provided me with an article by Roger C. Cramton, Professor Emeritus at Cornell Law School, which Andy (a Cornell Law alum) thought was particularly interesting, and I thought it was worth sharing here. The article, entitled Reforming the Court: How Long is Too Long (published in a Cornell Law alumni magazine) is based on the introduction to a book by Professor Cramton and Professor Paul Carrington of Duke Law School, entitled Reforming the Court: Term Limits for Supreme Court Justices. Of course, the titles of the book and article state the authors’ thesis. The article, based on the introduction to the book, is thought provoking. Here are a few “facts” taken from the article: Between 1970 and today the average length of service on the Supreme Court has grown from 15 years to 26 years During that time the average age at which a Justice retires from the Court has increased from 68 to 79 Statistically speaking, John Roberts, who was appointed at age 53, has a life expectancy of 30 years, and could be sitting as Chief Justice in 2037, or even much later Before the recent vacancies created by the death of Chief Justice Rehnquist at age 80 and the retirement of Justice O’Connor at the tender age of 75, the Court’s membership had been unchanged for 11 years The idea behind the book and article…

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Electronic Discovery and the New Federal Rules: What Every Lawyer Should Know

December 1, 2006

At long last, the highly anticipated amendments to the new federal rules of civil procedure are here. The federal court system has amended its rules of procedure to address electronic discovery, aka “e-discovery”. The amendments became effective on December 1, 2006. Unfortunately, this news has been greeted with yawns from many attorneys who believe this is just another run-of-the-mill procedural change. Far from it; the e-discovery revolution represented by this rules change – and it is a revolution – is anything but ordinary, and the courts (which have been warming up to this issue for some time) have warned that its effects will be profound and far-reaching. The rule changes themselves may not appear earth-shattering, but they change the standard for both lawyers and clients as it relates to the exchange and management of information in litigation. Since the federal court system has provided summaries of the changes (see rules 16, 26, 33, 34, 37 and 45), we won’t go into fine detail. However, there are a few changes worth highlighting, including the obligations placed on litigants and the courts to confront e-discovery at the outset of a case (see rules 16 and 26), the definitional changes designed to address “electronically stored information” (see rules 26 and 34), and the “safe harbor” exception which protects parties from sanctions if data is lost during the routine, good-faith operation of their computer…

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Supreme Court Geeks, Rejoice

November 9, 2006

You no longer have to wait to read the oral argument in a Supreme Court case that has been argued. The Supremes now make the full transcript of oral argument available on a same day basis. This is very cool for the .0001 percent of the population that loves this stuff. Yes, I know this is not a current picture, but the more current ones just don’t do the trick.

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Electronic Evidence – Fear and Loathing in the Legal Profession

October 26, 2006

The best aspect of law school is the subordination of math. Anon ________ The schematic displayed above (click for a blow up in pdf format) is a simplified illustration of a corporate network which Microsoft provided to the Federal Rules Committee in connection with proceedings on electronic evidence. It was intended to illustrate a generic corporate computer network. If you are a lawyer and this seems like an alien concept that no lawyer should ever be required to understand, you’re not alone. Lets face it – like most stereotypes, the old joke that lawyers go to law school to avoid math and technology contains a large element of truth. So, it’s not hard to sense the anxiety emanating from the hallways of the nation’s law offices as the electronic discovery tsunami picks up speed. Yes, there’s a new technology boom, but it’s not the kind that sent clients flocking to their lawyers for legal representation in the 1990s. Many lawyers in their 50s and 60s can barely find the caps lock key on a computer keyboard, much less learn the intricacies of “IT“. Nevertheless, every day emails and brochures arrive announcing seminars and warning that the era of electronic data discovery (EDD) has finally, truly arrived. Luddite lawyers are warned that – 99% of all documents created today are in electronic form. Changes to the federal rules of civil procedure…

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