Monthly Archives: May 2014

When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

24 Saturday May 2014

Posted by in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog

http://tinyurl.com/m7wk9mz

Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013).  -CCE

‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .

How Graphics Were Used In Historic Copyright Case.

22 Thursday May 2014

Posted by in Closing Argument, Copyright, Exhibits, Intellectual Property, Legal Technology, Opening Argument, Oral Argument, Technology, Trial Tips and Techniques

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Graphics for a Historic Copyright Case, by Michael Kelleher, Consent Legal Blog

http://tinyurl.com/q6oa8rt

As you prepare for oral argument in an important hearing, you may realize that you need quick help to create or revise graphics. Today’s blog post comes from this type of scenario, and it has the added interest of coming from a high-profile copyright dispute pending in the Supreme Court. . . .

 

The Search Engine That Doesn’t Track You Just Got Better – DuckDuckGo.

21 Wednesday May 2014

Posted by in Legal Technology, Search Engines

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DuckDuckGo, The Search Engine That Doesn’t Track You, Makes Terrific Overhaul Official, by Zach Miners, PC World

http://tinyurl.com/os4eyxr

DuckDuckGo, the privacy-themed search engine, has received a major redesign with enhanced search tools that could usher in a wave of new users.

The tools, announced Tuesday, include a variety of requested changes, including auto-suggest and local search, that make the site function more like Google, but with DuckDuckGo’s privacy promises still in place. 

*     *     *

DuckDuckGo’s search engine is one of a number of online services that have gained increased attention following disclosures around government surveillance leaked last year by former U.S. National Security Agency contractor Edward Snowden. According to its privacy policy, DuckDuckGo keeps no record of users’ searches, prevents them from being leaked to other sites, and does not log IP addresses. The site still has ads, but they’re not targeted using personal details. . . .

Statute of Limitations And Copyright Infringement.

20 Tuesday May 2014

Posted by in Copyright, Intellectual Property, Patent Law

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Supreme Court: In Copyright, Laches Cannot Preclude Actions Taken Within Three Year Statute of Limitations, by Dennis Crouch, PatentlyO Blog

http://tinyurl.com/pqwudqa

Petrella v. MGM (Supreme Court 2014)

Frank Petrella wrote a screenplay back in 1963 based on the life of Jake LaMotta and assigned rights to UA/MGM who made the movie Raging Bull. Under the old renewal system, renewal rights went to Petrella’s heir, Paula Petrella, who renewed the copyright in 1991 in a fashion that (seemingly) eliminates the prior license. In 1998 she informed MGM that its continued exploitation of the Raging Bull movie violated her copyright. Finally, in 2009, she did sue – alleging copyright infringement.

Copyright infringement has a three-year statute of limitations indicating that ‘No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.’ 17 U.S.C. §507(b). However, as in patent law, copyright follows a ‘separate-accrual rule’ that sees each successive violation of a copyright as a new infringing act with its own statute of limitations. Thus, under the statute of limitations, MGM could be liable for its post-2006 actions such as copying and distributing the work. . . .

Garner’s Interview With Appellate Judges On Oral Argument and Brief Writing.

20 Tuesday May 2014

Posted by in Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Court Rules, Courts, Federal District Court Rules, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, Statement of Facts, Trial Tips and Techniques

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Scribes Journal Presents Interviews With Judges, By Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/najqatd

In the latest issue of the Scribes Journal of Legal Writing, Bryan Garner continues his series Scribes 5-14of interviews with judges. This time he talks with five United States Court of Appeals judges to collect some inside information about brief writing and oral argument. Here are some of the judges’ pithy quotes:

Judge (and former Chief Judge) Frank Easterbrook of the Seventh Circuit said a lawyer should know why the court has jurisdiction. He imagines having a button he could press to send a lawyer out to the street if the lawyer can’t explain the basis for appellate jurisdiction. ‘Because if we don’t have jurisdiction, why are we here?’

Judge Pierre Leval of the Second Circuit said the first thing he looks at in a brief is the argument headings ‘to get a sense of what’s involved.’  Then he can read the facts in context.

Chief Judge Sandra Lynch of the First Circuit said many lawyers look ‘frozen’ when a judge asks a question. But instead, they should think, ‘This is a great way that I can hit a few more balls out of the park; I can help my case.’

Judge Stephen Reinhardt of the Ninth Circuit likes briefs written in ‘simple, clear sentences.’ And he likes ‘a story that flows so you can tell what it’s about and why . . . something I can follow easily.’ . . .

In Discovery, Ask A Silly Question, You’ll Get A Silly Answer.

20 Tuesday May 2014

Posted by in Discovery, Document Review, E-Discovery, Federal Rules of Discovery

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Lessons From Drafting Overly Broad Requests, by Joshua Gilliland, Esq., bowtielaw blog

http://tinyurl.com/pzykr25

Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce ‘[a]ll email and text messages sent or received on Mayo email and text messaging accounts.’

The Magistrate Judge found the request to be overly broad. . . .

A Double Treat – Two-Part Posts On Cybersecurity and Outsourcing From Ralph Losey.

19 Monday May 2014

Posted by in Computer Fraud and Abuse Act, Computer Virus, Confidentiality, Document Retention, Emails, Encryption, Heartbleed, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Malware, Technology, Technology, Trojans

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The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/oalblet

and,

The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part Two, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/mjek896

It is worth taking the time to read the Comments for both Part One and Part Two. -CCE

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

Reviewer 7 App — Microsoft Documents On iPad.

19 Monday May 2014

Posted by in Apps, iPad, iPhones, Legal Technology, Legal Writing, Microsoft Office, Word

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Review: Reviewer 7 — Review And Edit Microsoft Word Documents, by Jeff Richardson, iPhone J.D. Blog

http://tinyurl.com/lysjrdl

For many years, there was no one, best way to review and edit Microsoft Word documents on an iPad, but there were lots of apps that could be used for the task, each with their own strengths and limitations.  The landscape changed in March of 2014 when Microsoft introduced the Word for iPad app – a powerful app that can handle almost everything that you would want to do with a Word document on an iPad.  Ever since then, I have wondered about the future of the other apps that handle Word documents.  Some apps may be abandoned, but my hope is that others will find ways to distinguish themselves from Microsoft’s app.

That’s exactly what has happened with the new Reviewer 7 app.  This a new name for an updated version of an app that used to be called Reader 7, and I reviewed it this past February.  Reader 7 was created by German attorney Maren Reuter and her husband, who is a software designer, and I thought when I reviewed it that it was one of the very best apps for reading Word files on an iPad.  The app’s name was changed because while it is still an excellent viewer, you can now get the app for free and spend $1.99 for the in-app Review Tools upgrade and then the app will let you create redline edits in a Word document. . . .

Lemon Law Guide By State.

18 Sunday May 2014

Posted by in Lemon Laws

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Lemon Law, at DMV.org

http://www.dmv.org/automotive-law/lemon-law.php

We at DMV.org hope you never have to read our Lemon Law guide (because it probably means your shiny new car has gone sour). But if you do, we’ve cut through the legalese in your state’s statutes to educate you about your rights under the law―in language anyone can understand.

Most states’ Lemon Laws are spelled out in their legal code. But who wants to read through all that to find out whether your vehicle qualifies as a lemon? Our state-by-state guides will explain in plain English how Lemon Law claims are handled where you live.

In most cases, your state will mediate between you and the automaker to get the vehicle repaired or replaced, or your money refunded. Don’t get stuck with a car you can’t drive. Instead, empower yourself with information. . . .

Complete Guide to Everything Apple for Legal Professionals.

18 Sunday May 2014

Posted by in Apple, Apps, iPad, iPhones, Law Office Management, Legal Technology, Mac, Technology

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Mi Apple Practice, from the State Bar of Michigan Practice Management Resource Center

http://www.michbar.org/pmrc/applepractice.cfm

Everything related to using Apple products in a law office, e.g., iPhones, iPads, and Mac. Accessories, apps, articles, blogs, podcasts, how-to’s, reviews, groups, websites, and more – it’s all here. -CCE

Court Bars Woman From Facebook. First Amendment Violation?

18 Sunday May 2014

Posted by in Criminal Law, First Amendment

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Woman Barred From Ranting About Family On Facebook, by Matt Moreno, NEWSY

http://www.newsy.com/videos/0518facebook/

Hate it when people rant on Facebook? Well, one New Jersey mom has actually been banned from doing just that.

A judge has ordered one unidentified woman not to go on Facebook rants about her children or ex-husband. . . .

Deposition Objections – How To Make And Defend Them.

18 Sunday May 2014

Posted by in Attorney-Client Privilege, Depositions, Discovery, Evidence, Objections

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Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog (with hat tip to Evan Schaeffer!)

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

Justice Department’s Attempt To Reduce Sexual Assault in Prisons. Will It Work?

17 Saturday May 2014

Posted by in Criminal Law, Department of Corrections, Justice Reform, Prison Elimination Reform Act, Sexual Assault

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Sentenced to Wait: Efforts to End Prison Rape Stall Again, by Joaquin Sapien, ProPublica

http://tinyurl.com/n7oytlp

Texas prison inmates report being raped at some of the highest rates in the country, and the problem only seems to be worsening: The three most recent reports issued by the U.S. Department of Justice show stubbornly high levels of reported sexual assault.

But late last month, Texas Gov. Rick Perry wrote a letter to U.S. Attorney General Eric Holder signaling that he’d rather lose federal funds for corrections than comply with new rules under the Prison Rape Elimination Act requiring states to substantially improve detection and prevention of sexual assaults in prisons. . . .

2014 Best of Legal Tech from Jim Calloway.

17 Saturday May 2014

Posted by in Android Phones, Apple, Apps, Cell Phones, Clouds, Computer Forensics, Dashboards, Emails, Encryption, iPad, iPhones, Law Office Management, Legal Technology, PC Computers, Tablets

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The Best of Legal Tech for Solos and Small Firms 2014, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

http://tinyurl.com/mjqjp9a

This month’s Digital Edge podcast covers ‘The Best of Legal Tech for Solos and Small Firms 2014.’

John Simek is our guest, who is the business partner and spouse of my podcast teammate, Sharon Nelson. Together with Michael C. Maschke, they were the authors of The 2014 Solo and Small Firm Legal Technology Guide: Critical Decisions Made Simple, published by the American Bar Association. I was quite honored to be asked by them to write the forward for the book.

We discuss all sorts of technology for solo and small firm lawyers, including practice management software, workstations and cloud-based services. Enjoy the podcast.

Inhibiting Jury Bias.

17 Saturday May 2014

Posted by in Implied Bias, Jury Persuasion, Jury Selection, Trial Tips and Techniques

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Simple Jury Persuasion: “It Makes No Difference To Me But I’m Sure It Would To A Lot Of Other People,” posted by

http://keenetrial.com/blog/category/simple-jury-persuasion/

The study of bias fascinates us. We can easily spot prejudice in others but are oblivious to our own biases. We often ask a question at the end of a research project about community values and whether our (uniformly unbiased and considerate) mock jurors think others in the area would be biased against a party involved in the lawsuit about which they have just heard. Maybe the off-topic and irrelevant bias (perhaps religion, country of origin, ability to speak English, thick accent, appearing to be a gang member, sexual orientation, marital fidelity, obesity, etc.). Typically, the answer is, “Well, it doesn’t make a difference to me but it sure would to a lot of other people who live around here!” This response is shared in all sincerity and good faith by individuals who truly do not see themselves as biased.

The problem, as pointed out by today’s researchers, is that none of us see ourselves as having blind spots. We’re better than that–especially when forewarned that biased decision-making could lie ahead. As sensible and logical and rational as that perspective may seem, it simply doesn’t appear to be true. . . .

Forget Me – Europe Rules On Removing Google Links.

17 Saturday May 2014

Posted by in Copyright, Google, Intellectual Property, Internet, Legal Technology, Privacy, Public Domain

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European Ruling On Removing Google Links May Leave A Mess, by Aarti Shanani, All Tech Considered, NPR

http://tinyurl.com/k747wvt

Google’s lawyers are trying to make sense of a ruling they did not expect.

This week, Europe’s highest court decided that people have a right to have search results about them deleted from online databases. So Google has to remove links to certain pages. Legal experts in Europe are torn about what, exactly, that means.

What Prompted The Ruling

There’s a man in Spain who doesn’t like his search results. I ask a fellow Spaniard, Cristina de la Serna in Madrid, to show us why.

She goes to Google.es, Spain’s version of the search engine, and types in the name Mario Costeja Gonzalez. The second result she gets for Gonzalez is a link to a 1998 Spanish newspaper clip. It shows his home was repossessed because of debt.

Google Must Delete Personal Data When Asked, European Court Says

Gonzalez wants the old blemish to go away, and de la Serna thinks he’s got a point. Searching people isn’t the same as searching for shoes, cars or books. . . .

Revisiting Civil Rights Case Mendez v. Westminster.

17 Saturday May 2014

Posted by in Appellate Law, Segregation, United States Supreme Court

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Before Brown v. Board of Education There Was Méndez v. Westminster, by Francisco Macías, In Custodia Lexis, Law Librarians of Congress

http://tinyurl.com/lplvmwa

As I wrote about earlier in the blog, the case Hernández v. Texas was decided just two weeks prior to Brown; but there is another little-known case that was instrumental for the American civil rights movement: Méndez v. Westminster. While many scholars of educational desegregation assure us that the beginning of the end of the ‘separate but equal’ doctrine was set underway with Brown v. Board of Education. It could be argued that the beginning of that end may actually date back seven years prior, Méndez v. Westminster, which ended the almost 100 years of segregation that had remained a practice since the end of the U.S.-Mexico War of 1848 and the signing of the Treaty of Guadalupe Hidalgo. The end of the U.S.-Mexico War gave rise to ‘anti-immigrant sentiments [that] resulted in increased measures to segregate Mexican-Americans from so-called ‘white’ public institutions such as swimming pools, parks, schools, and eating establishments.’. . .

New Net Neutrality Rules Postponed For Now.

17 Saturday May 2014

Posted by in FCC, Government, Internet

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F.C.C. Backs Opening Net Neutrality Rules for Debate, by Edward Wyatt, Technology, The New York Times

http://tinyurl.com/px528bf

The outcry over the FCC’s new neutrality rules for the Internet got the FCC’s attention. Big players, like Amazon and others, jumped in and urged the FCC to give this more thought.

For those who have not followed this story, basically the FCC’s proposed new rules would have changed the Internet as we know it today, and turn it into something more like the cable service.  The short version is that it would have allowed Internet providers to influence the content that you would see when you ran a search – not that there’s a certain amount of that going on now. Some called it going from the “free” internet to being run by the highest bidder. -CCE

Federal regulators appear to share one view about so-called net neutrality: It is a good thing.
But defining net neutrality? That is where things get messy.
On Thursday, the Federal Communications Commission voted 3-2 to open for public debate new rules meant to guarantee an open Internet. Before the plan becomes final, though, the chairman of the commission, Tom Wheeler, will need to convince his colleagues and an array of powerful lobbying groups that the plan follows the principle of net neutrality, the idea that all content running through the Internet’s pipes is treated equally.
While the rules are meant to prevent Internet providers from knowingly slowing data, they would allow content providers to pay for a guaranteed fast lane of service. Some opponents of the plan, those considered net neutrality purists, argue that allowing some content to be sent along a fast lane would essentially discriminate against other content. . . .

European Journal of International Law.

17 Saturday May 2014

Posted by in International Law, Law Journals, References, Research

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European Journal of International Law

http://www.ejil.org/

I was going to try to give you a quick summary of what you’ll find here, but I think this excerpt from “About the EJIL” says it better than I ever could. -CCE

“About the EJIL

Welcome to the website of one of the world’s leading international law journals. The EJIL was established in 1990 by a small group of distinguished scholars based at the European University Institute in Florence. The Journal has grown since then in size, strength and reputation, but the Editors’ original vision remains unchanged and is distinguished by:

  • its European orientation,
  • its emphasis on critical and theoretical approaches,
  • its commitment to publishing contributions from a diverse range of contributors, especially those among the younger generation
  • its continuing interest in the historical origins of the ‘European tradition’ (in the best and broadest sense) in international law.

This website forms an integral part of the European Journal of International Law and full-text articles of all but the most recent issues are available here in the archive. For the current year, one full-text article and abstracts of all the other articles are posted.

Our commitment to linguistic diversity

Originally bilingual, the Journal is now published only in English. While we retain a strong belief in the central importance of linguistic diversity to the continued flourishing of international law, the decision to publish exclusively in English is based on the fact that it enables us to reach the widest possible readership, in view of the ever-growing number of Europeans and others for whom English is the principal second language. At the same time, however, we warmly welcome submissions in French, Spanish, Italian and German. Where resources permit, we will endeavour to translate into English those articles written in other languages that are accepted for publication. . . . [Emphasis added.]

Don’t Offer An E-Database If You Can’t Afford It.

14 Wednesday May 2014

Posted by in Appellate Law, Criminal Law, Databases, Discovery, Document Review, E-Discovery, Metadata, Preservation, Requests for Production

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Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants, Electronic Discovery Law, published by K&L Gates

http://tinyurl.com/led86em

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the ‘Database’) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions. . . .

Pilcrow and Thorn. That 70’s Cop Show, Right?

12 Monday May 2014

Posted by in In Custodia Legis

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It’s Craig Ball. Do I need to say anything more? -CCE

craigball's avatarBall in your Court

I’ve lately been immersed in the minutiae of load files while trying to complete a primer on forms of production and craft a load file exercise for the workbook students will use in the upcoming Georgetown E-Discovery Training Academy.

By the way, there’s still time to register for the ultimate e-discovery master class cum boot camp—a week in Washington, D.C. studying electronic discovery with a dedicated faculty, getting down and dirty with data.  You promised you were going to get your arms around the e-stuff; now is the time, and the Georgetown Academy is the place.  June 1-6, 2014.  I’ll sweeten the pot: Use the code EDTAREFERRAL when registering and take $300.00 of the price.

While sojourning in load file hell, I stumbled upon a tidbit of information I thought other e-discovery groupies might find mildly diverting.

Our Sesame Street words for today are Thorn and Pilcrow.

I…

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The Best Statement of Facts … Ever.

12 Monday May 2014

Posted by in In Custodia Legis

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What a legal writing keeper! If you care about legal writing at all, you simply must read this post by Mike Skotnicki at Briefly Writing Blog. -CCE

Mike Skotnicki's avatarBriefly Writing

When I was a Staff Attorney for an Associate Justice of the Alabama Supreme Court in the 1990’s, I read countless appellate briefs. I really only remember one. That brief contained a Statement of Facts that opened my eyes to how well an appellate brief could be written. It was simply the best Statement of Facts that I have ever read. Alabama_Supreme_Court_Building

It was a wrongful death case. A single mother was killed in an automobile accident when pulling out onto a county highway from a local road at dusk her car was struck by a logging truck going well over the posted speed limit. The jury had awarded a sizeable verdict for the decedent’s estate and the Alabama Supreme Court, then composed of a majority of Justices elected as business-supporting Republicans, affirmed the verdict without opinion.

I don’t recall the name of the case, the details of the facts, the…

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Broken Badly: The Anderson Living Trust v. WPX Energy Production

11 Sunday May 2014

Posted by in In Custodia Legis

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craigball's avatarBall in your Court

Breaking BrowningU.S. District Judge James Browning is a fine fellow.  There are many reasons to say so; but the first is that, though he sits in New Mexico, he was born in the Great State of Texas.  Judge Browning kindly spoke to my E-Discovery class at the law school in September 2012.  I’d sought him out because he’d been ably grappling with e-discovery issues in a case styled S2 v. Micron.  In his remarks to my class, he splendidly recounted some of the challenges faced by judges who ascended to the bench before the Age of Digital Evidence.  Judge Browning has one of those C.V.s that could make any lawyer hate him (e.g., Yale, varsity letterman, Law Review editor-in-chief, Coif, Supreme Court clerk); but he’s a good judge and a nice guy to boot.

I share my admiration of Judge Browning to underscore that I feel a bit of a rat…

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PC World’s Answer Line — Solutions to Various Computer Problems.

11 Sunday May 2014

Posted by in Computer Virus, Legal Technology, Malware, Microsoft Office, PC Computers

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Answer Line Solutions, Tips and Answers for PC Problems from Lincoln Spector, PC World

http://www.pcworld.com/column/answer-line/

You may not want or have the skills to build or fix your PC computer. But no doubt there are a few things you would like to do for yourself, such as, recovering a deleted file? What about setting — and keeping — a preferred default font in Word or recovering files after a malware attack? Even if you are tech-challenged, this site answers all types of questions in a language anyone can understand. Browse a while. You may find something that interests you. -CCE