by Lee Gesmer | Oct 7, 2008 | Courts
- Jurors like to be able to submit written questions during trial (who wouldn’t want that option?)
- Jurors like preliminary jury instructions from the judge (who wouldn’t want to be oriented on the legal issues in the case at the outset?)
- Jurors like interim statements by counsel, rather than waiting until the end of the case (who wouldn’t like to be told what’s going on at various points during a long trial, rather than have to wait until the end, when it may be difficult to remember the testimony of witnesses who testified weeks earlier?)
All of this, and a bit more, is in the Seventh Circuit Bar Association American Jury Project Commission Report.
Lets see, the commission was comprised of three co-chairs, a four-person Executive Committee, and fifty eight (58) lawyers and judges, mostly from Chicago, and took three years to generate its report. Wow, those commission meetings must have been great networking opportunities. The full two hundred page-plus pdf report is here (click at your own risk).
by Lee Gesmer | Oct 7, 2008 | Antitrust
At least one FTC Commissioner recently stated that he would support an appeal:
As I said earlier, I personally support a petition for certiorari in Rambus. I think the D.C. Circuit’s decision is wrong and given the fact that it rests on important legal principles respecting causation in Section 2 cases. I think its implications are much broader than the standard setting context. The petition is due in mid- November and it is my hope that the Solicitor General weighs in to support us on this important effort.
Section 2 and Standard Setting: Rambus, N-Data & The Role of Causation
J. Thomas Rosch, Commisioner, Federal Trade Commission, Oct. 2, 2008
Click here for an earlier discussion of the D.C. Circuit Court of Appeals’ decision in the FTC/Rambus litigation.
by Lee Gesmer | Sep 26, 2008 | General
. . . the Supreme Court can only decide a couple of patent cases even in a banner year. And, many important patent issues may be so obscure as to discourage its generalist judges from addressing them. The rest, necessarily, are left to us. We have the expertise and the will to resolve doctrinal problems. What we lack is mainly the opportunity. Why for example did it take a full decade to revisit State Street? Because no one asked us to until recently. The same can be said of the central issue decided in KSR. It was never simply presented to us in a petition for en banc treatment. Oddly, we receive over a hundred a year. Yet few raise such fundamental issues as eligible subject matter under §101, or the Teaching-Suggestion-Motivation test, or the proper methodology for assessing requests for the permanent injunction, or barring them, future damages.
Speaking at the Harvard Law School Conference On Intellectual Property Law, September 9, 2008.
Click here for full text of speech.
by Lee Gesmer | Sep 25, 2008 | Data Security
The department of consumer affairs and business regulation shall adopt regulations relative to any person that owns or licenses personal information about a resident of the commonwealth. Such regulations shall be designed to safeguard the personal information of residents of the commonwealth …
M.G.L. Chapter 93H: Section 2
Here is a link to the Executive Order signed by Governor Patrick on September 19, 2008.
The Executive Order applies to State agencies; the regulations apply to the private sector.
The regulations are of particular interest. They require private sector entities who keep personal information about individuals to meet “minimum” security standards for paper and electronic records. They apply broadly to “persons who own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts”. They require the creation of a “written information security program” which must be “reasonably consistent with industry standards.” The most minimal requirements of such a program are (to my eye) quite extensive (and burdensome). I think it is an understatement to say that the regulation and Executive Order will attract a great deal of attention and preparation between now and year-end, and will likely spawn a new (or expanded) industry of compliance consultants.
by Lee Gesmer | Sep 24, 2008 | Litigation, Procedure
Here is the text of new Federal Rule of Evidence 502, eliminating waiver resulting from inadvertent disclosures of attorney-client privileged or work-product materials in federal litigation:
Federal Rule of Evidence 502
(signed into law September 19, 2008)
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure made in a federal proceeding or to a federal office or agency; scope of a waiver. —
When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent disclosure. —
When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed. R. 25 Civ. P. 26(b)(5)(B).
(c) Disclosure made in a state proceeding. —
When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling effect of a court order. —
A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling effect of a party agreement. —
An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling effect of this rule. —
Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. —
In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
This rule comes too late for the many lawyers spending their weekday mornings in dark bars, drinking their memories away, their careers ruined by inadvertent disclosure of privileged client documents. It also comes too late to save the hundreds of millions of dollars spent on document review over the last few decades, in an effort to make sure that privileged materials aren’t produced to opposing counsel. But, better late than never. Click here to read the explanatory note on this rule.
Click here to read an earlier post on this issue: The Agony of Inadvertant Disclosure.
