Plaintiffs lawyers have been positioning themselves for a front seat in the mounting litigation arising from the sudden unintended acceleration problems in vehicles manufactured by Toyota.
Approximately 150 lawyers assembled on Friday at the InterContinental Chicago hotel to discuss sharing experts and legal strategies in the Toyota litigation, which now exceeds 80 lawsuits. Many of the lawyers have broken into camps based on which jurisdiction they believe should hear the multidistrict litigation against Toyota — and, perhaps more importantly, which judge should decide the cases.
One of the most popular districts under consideration is the Central District of California in Los Angeles, near the headquarters of Toyota Motor Sales USA Inc. Lawyers supporting this locale include products liability attorneys Mark Robinson Jr. and Richard McCune as well as Toyota’s lawyers, Cari Dawson and Lisa Gilford, both partners at Atlanta’s Alston & Bird. McClune was the first into court against Toyota.
Another group is advocating for Kentucky, where Toyota operates its largest manufacturing plant outside Japan. A third group is pushing for the Eastern District of Louisiana in New Orleans, which recently heard MDL proceedings involving Merck & Co. Inc.’s painkiller drug Vioxx.
The U.S. Judicial Panel on Multidistrict Litigation has scheduled a hearing in the Toyota litigation on March 25.
“This is going to be like a feeding frenzy,” said Robinson, a partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif., who filed a motion with the MDL panel on Feb. 26 to transfer the cases to Los Angeles…
Sound project management is vital to any eDiscovery matter. Without it, data can be overlooked, budgets overrun, deadlines missed, and defensibility compromised. To ensure that your eDiscovery matter is managed properly, you need more than just a good project manager; you need a well thought-out process that incorporates quality assessment and control.To find out how ways you can streamline the eDiscovery process, avoid missed deadlines, and minimize the potential for costly errors and challenges by opposing counsel, please join LDMglobal for a webinar on “The Keys to eDiscovery Project Management”.
The webinar will be held Thursday March 11th at 11:00 AM EST, 4:00 PM GMT, and will feature Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz…
Ok, this is not so much an e-discovery blog, despite the title of “DocReview.” But, I must admit, I like the effort this person has put into his or her into this. The blog is full of videos with contentious and controversial legal issues, stories, and questions. Please check the DocReview.us site when you get a chance as well.
A suspected cybercrook who swallowed a USB drive in an apparent bid to destroy evidence has been charged with obstruction.
Florin Necula, from New York, ate a Kingston flash drive thought to contain mag strip dumps from credit cards shortly after his arrest outside a bank in Queens on 21 January. He gobbled the USB drive while awaiting processing and questioning at a Secret Service office in Brooklyn.
Necula’s attempts to digest the evidence resulted in a trip to a New York hospital and, four days later, a presumably delicate operation to remove the USB stick.
I would think “presumably delicate” doesn’t begin to cover what that guy had to go through.
While conducting the rigorous research I do for this blog, I happened to land on Ralph Losey’s Podcast page. You can download his podcasts for free. As well, there are also plenty of podcasts from Law Technology Now,Applied Discovery,ESI Bytes, and several others.
Irwin v. Onondaga County Resource Recovery Agency, A.T., — N.Y.S.2d —, 2010 WL 462948 (N.Y.A.D. 4 Dept., Feb. 11, 2010)
Petitioner Irwin noticed that a local government agency used a picture of Irwin in an email “news blast.” He claimed the agency used the photo without his permission, and sought modest compensation for the use of the photo. When the agency refused, Irwin sought information about the agency’s collection of digital images under New York’s Freedom of Information Law (“FOIL”).
The request sought “[a]ll computer records that are associated with published [photographs] in all [of the agency's] publications, including [Web site] and e-mail activities, for the years 2005, 2006, and 2007.” The agency produced some photos that were of reduced quality and “bereft” of metadata.
Irwin filed a court action to compel, among other things, the disclosure of the metadata associated with the requested records. The trial court denied Irwin’s petition, and Irwin sought review with the appellate court. On appeal, the court amended the judgment to order the production of the metadata.
The court emphasized that the decision was limited to its facts. But the case is worth reading because of its concise yet thorough explanation of the various types of metadata and their discoverability.
On the heels of the US Department of Justice’s (“DOJ”) massive sting operation, which resulted in the indictment of 22 individuals for conspiracy to violate the US Foreign Corrupt Practices Act (“FCPA”),1 the DOJ and US Securities and Exchange Commission (“SEC”) appear close to settling half-a-dozen investigations involving corrupt payments to foreign officials made by Alcatel-Lucent, BAE Systems plc, Daimler AG, Innospec Inc., Pride International, Inc. and Technip S.A.2 If concluded, these anticipated settlements could result in more than US$1.1 billion in criminal fines, civil penalties and disgorgement—nearly double the more than US$646 million in fines, penalties and disgorgement recovered in 2009, and more than ever recovered in a single year since the FCPA’s enactment in 1977. And it’s only March 3…
New Irish court rules in relation to e-discovery beginning to impact legal practice
According to a recent article by Matheson Ormsby Prentice, the leading Irish corporate law firm, the new court rules in relation to e-discovery which came into effect on 16 April 2009 (click here for the rules) and apply to litigation in the Superior Courts, are now beginning to impact Irish legal practice. The new rules make it easier to seek and inspect such evidence and seek to strike a balance between parties’ rights to access relevant evidence, and avoiding excessive burden and expense on parties giving discovery of electronically stored information (ESI).
As the firm indicated “a substantial amount of documentation is now created and/or stored electronically and this electronic equipment often contains important evidence. The new rules set out specific obligations with regard to electronic discovery”…
A Defendant in a gang related murder and assault case sought to introduce evidence of the victim’s sister’s MySpace page to show the victim’s violent nature toward a rival gang; a propensity for violence; and that the victim started the fight that ended in his death. People v. Williams, 2010 Cal. App. Unpub. LEXIS 1251, at *23 (Cal. App. 2d Dist. Feb. 23, 2010).
The Court excluded the MySpace as evidence.
The Sister’s MySpace Profile
The victims were brother and sister. The brother was killed in a gun fight with the Defendants.
The sister’s Myspace profile contained a series of photos (or video, the opinion is not clear) of the siblings dressed as rival gang members. The MySpace evidence depicted the brother pretending to punch the sister and her falling to the ground. Williams, at *23.
The MySpace evidence was described as a videotape of the profile. Id. This implies that a video camera was set to record the profile. It is also highly possible the profile contained video and it was collected as a video file.
One of the Defendants tried to use the video to show the victim was violent toward members of the rival gang. Williams, at *23. The State objected to the video evidence on both foundational and relevancy grounds. Id.
One of the few e-discovery blogs from a law school, and probably the only one from a top 25 school. Georgetown also features the e-discovery institute as well.
First, allow me to thank everyone who responded to my previous blog post regarding certification. It has been an honor and a privilege to receive so many e-mails as well as comments on this as well as other blogs that picked up the post.
Since the majority of your responses focused on the field of education rather than certification, this post will be dedicated exclusively to it. I think most would agree that e-discovery and the practice support industry are in dire need of solid and unbiased education. So before you commit your hard-earned and heavily fought-for budget money to an education course, ask yourself the following questions…
Over at Armedia, there is a fascinating post entitled “The Andy Fastow Subtext…” Andy Fastow is of course the Enron CFO who helped spearhead the entire scandal, and then ran to the authorities to make a plea. The jist of the post was using e-discovery, ECM and other tools to stop the Andy Fastow’s of the world before they pop up again, or at least make the process less “insane”. The post is defintiely worth a read.
Perhaps the subtext is in the incentives and disincentives. eDiscovery, empirically, seems to be a dance. The goal really is not full discovery or going to court—that would be insanely expensive for most organizations—but a happy settlement, which would be less insanely expensive. Of course to get to the settlement, you still need some level of eDiscovery…to know what is insane and what is less insane! Now, what if eDiscovery were easier? ECM, records management, search and eDiscovery tools all working in unison. A nirvana to be sure. But, would that not potentially lead to greater exposure of being discovered? Would the disincentive of the lengthy, costly and archaic discovery process now be replaced with the incentive of protecting yourself through the same lengthy, costly and archaic discovery process?! Certainly the US government (through the FRCP; Federal Rules of Civil Procedure) doesn’t hope so. In fact, since the December 1, 2006 amendments to the FRCP, effectively dealing with eDiscovery is very much supposed to be on the legal and corporate roadmap of most organizations; moreover they have the burden of responsibility for adequately managing discoverable information at their own cost…
This was something I had touched on earlier this week in Lazy Sunday Links. I guess I was just happy to see an article like that in The Economist. It seems Mr. Hilaly takes on a different perspective.
As a long-time reader of The Economist, I was excited to find that this week’s edition writes at length about the exponential growth in electronically stored information (ESI), and how people are using technology to manage it. I believe this is one of the most significant “mega-trends” impacting our economy, and I was thrilled to see it recognized by a mainstream publication. But when I read the 14-page special report, I was disappointed to find that its analysis of the legal and regulatory implications of “the data deluge” is really weak…
The Metropolitan Corporate Counsel does a good interview with Jason Robman, assistant general counsel to Recommind, on defensible predictive coding and analysis.
Editor: We’ve been hearing that new technology is part of the solution to the voluminous amounts of data being subject to review, but is it a panacea?
Robman: I will answer that question in terms of two technology advances in eDiscovery that will have a dramatic effect on reducing data volumes. First, technology alone cannot remediate the problem, but technology coupled with the right documented, defensible and monitored process/workflow can make a huge difference in reducing the costs associated with legal review. By now, many have heard of Defensible Predictive Coding, which Recommind has been talking about for some time: it is a dramatic shift from the traditional linear review process. The uses of Predictive Coding are case dependent; however, we are seeing clients save 50 to 80 percent of what they would have normally spent on traditional review because contract attorneys were either not needed or were able to work far more efficiently (or both). I think it is a not-so-well-kept secret that linear review alone is typically not an overly accurate or consistent review methodology, but it has been the devil we know. Predictive Coding is a quantum leap in document review efficacy and accuracy.
…I can’t remember having ever witnessed such an antagonistic atmosphere as the one that exists today in eDiscovery as technologists attempt to introduce new technology and lawyers desperately try to avoid the use of this new technology. I have been wrong a few times in the past about markets that are going through paradigm shifts and technology adoption lifecycles (e.g. voice recognition). However, I really don’t believe that there is an invasion of eDiscovery technologists from “deep space” or that anyone is trying to “snatch anyone’s body”.
As a long time student and follower of the technology adoption lifecyle as described in “Crossing the Chasm” by Geoffrey A. Moore, I am very well aware of the concepts of “early adopters”, “mainstream buyers” and “lagers”. And, as indicated by Mr. Moore, buyers and/or adopters fit into one of the technology adoption lifecycle categories and then move, into the next based upon a normal progression of events such as maturation of the technology, solid references, overwhelming evidence and facts like literally everyone else in the industry has moved (i.e. the very late lagers). The process is not unlike watching the migration of the wildebeests. However, is some very rare instances, this natural progression is dramatically accelerated due to factors that are very much beyond the control of the adopters. And, when this happens, the adopters are forced way outside their comfort zones and therefore have a tendency to act irrationally. It is my opinion that we are witnessing this phenomenon in eDiscovery.
A national Internet advertising transaction should have a positive effect on local newspaper finances, the Norwich Bulletin’s chief officer said Thursday.
Monster Worldwide Inc.’s $225 million acquisition of Yahoo! HotJobs was described as “very good for us” by Publisher Paul Provost. The Bulletin has used Yahoo! HotJobs since 2008, when it switched from CareerBuilder.com. CareerBuilder, the largest online jobs company with 1.6 million ads, began to be used by the paper in 2000…
UPDATE: I have word from a very reliable tipster that the 4c review will begin tomorrow and the second request review should begin soon after.
Lots of stuff from the Posse List this week. Most recent, their update on the growing Toyota scandal and how they definitely may have withheld key documents in e-discovery.
Also, the Posse List makes mention of this great article from the Economist about the explosion of data around the world and how we are dealing with it.
Link to Links: The Posse List’s Top 10, “Plus” articles of the week.
Here is a video of Craig Ball and Monica Bay on their recent talk in front of Women in e-Discovery.
Everyone is talking about how the DOJ is bulking up their FCPA prosecutions.
Another topic that has been buzzing all week is how the Pentagon has finally caught up to Web 2.0.
Analysts from a legal publishing company aren’t “wowed” by the results from a legal consulting company.
A top committee chairman wrote Toyota executives Friday asking for answers as to whether the company failed to turn over safety records in litigation.
House Oversight and Government Reform Committee Chairman Edolphus Towns (D-N.Y.) wrote Toyota North America President and CEO Yoshimi Inaba demanding to know whether the Japanese automaker, when facing lawsuits for vehicle rollovers, failed to turn over a so-called “Books of Knowledge” as required under law.
Towns said that an Oversight committee subpoena of Toyota documents indicate that the company failed to turn over the Books of Knowledge, which detail design and testing data, during the discovery phase of liability lawsuits against the company…
Here is an excerpt from the letter Congressman Towns sent to Toyota North America. The full letter is at the link above.
In an internal memorandum dated September 1, 2005, entitled “A Serious Need to Get Documents/E-Discovery From TMC”, Mr. Biller [ Toyota Managing Counsel in the Product Liability ] informed his supervisor that he was concerned about Toyota’s failure to produce electronic documents in litigation. While conducting a search for relevant evidence in the “Sears” case, Mr. Biller discovered a computer database known as “MIK”. According to Mr. Biller, MIK had been in existence for a number of years and includes information about “design problems” and “countermeasures used to resolve issues.” The MIK database can be searched by vehicle and by component part. Moreover, the information in MIK is maintained by Toyota Motor Corporation (TMC). Information from MIK “is down loaded by TTC [Toyota Technical Center] into secret electronic “Books of Knowledge.”
OK, so last week Craig Ball reported on a third year law student who asked him what was the minimum amount of e-discovery information he needed to learn in order to get by. And I’m willing to cut a third year law student a little slack because…well, actually, no I’m not and I’m glad Craig held him out for public scorn in his column, I would have published his name.
Why? Because here’s what happens when those people graduate, pass the bar and start practicing. The ABA Journal publishes an article about the Pension Committee decision and we get the following two comments…
On the flip side of the universe, there is that e*trade commercial from that picture above, in case you haven’t seen it.
Lawmakers at a House Judiciary Committee hearing Thursday on Comcast Corp.’s proposal to take a majority stake in NBC Universal put both company chiefs in the hot seat.
But legislators were interested in shining a spotlight not so much on whether the deal might raise antitrust concerns, but on the companies themselves and their track records on labor and diversity, and with independent producers…
…The merger, which was announced in early December, would give Comcast a 51 percent stake in NBC Universal. NBC’s current owner, General Electric Co., would hold the remaining 49 percent…
…Both the FCC and the Justice Department have to approve the deal. Comcast received its second request for documents from the Justice Department yesterday, according to Comcast spokeswoman Sena Fitzmaurice. That marked the start of the extended review of the deal…
I usually don’t do press releases, but I met Scott Jarus of Cognition at LegalTech, and I know what a big deal this is for his company. Normally, I never see a company like Microsoft partnering with smaller legal outfits. Cognition works with discovery review platforms to improve their semantic language technology. Working with Bing should send a strong message to their competitors and future partners that their technology is pretty solid.
Cognition Technologies today announced that Microsoft Corp. has licensed some of its proprietary semantic technologies and will be using them to enhance Bing and other applications within Microsoft. Specifically, Microsoft will incorporate Cognition’s comprehensive and robust Semantic Map of the English language.
The non-exclusive licensing arrangement enables Microsoft to embed elements of Cognition’s semantic technologies into any Microsoft application which would benefit from an “understanding” of the English language. Initially, it will be used to enhance the user experience in Bing, Microsoft’s online decision engine…
Ever since his 1996 Toyota Camry shot up an interstate ramp, plowing into the back of an Oldsmobile in a horrific crash that killed three people, Koua Fong Lee insisted he had done everything he could to stop the car.
A jury didn’t believe him, and a judge sentenced him to eight years in prison. But now, new revelations of safety problems with Toyotas have Lee pressing to get his case reopened and his freedom restored. Relatives of the victims — who condemned Lee at his sentencing three years ago — now believe he is innocent and are planning to sue Toyota. The prosecutor who sent Lee to prison said he thinks the case merits another look…
…Lee’s accident is among a growing number of cases, some long resolved, that are getting new attention since Toyota admitted its problems with sudden acceleration were more extensive than originally believed. Numerous lawsuits involving Toyota accidents have been filed over the recent revelations, and attorneys expect the numbers will climb…
An Italian judge on Wednesday held three Google executives criminally responsible for an online video of an autistic teenager being bullied — a verdict that raises concerns that the Internet giant, and others like it, may be forced to police their content in Italy, and even beyond.
The reaction to the verdict in the United States was swift and nearly unanimous in its condemnation of a dangerous precedent experts said threatens the principle of a free and open Internet…
…”The judge has decided I’m primarily responsible for the actions of some teenagers who uploaded a reprehensible video to Google video,” said (Peter) Fleischer (Google’s Global Privacy Co)unsel, who is based in Paris…
Ironic that Google’s “privacy” counsel was one of the people convicted.
Federal district court judge Shira Scheindlin — who penned five seminal opinions in the case of Zubulake v. UBS Warburg — has weighed in again on a litigant’s duty to preserve electronically stored information (“ESI”) relevant to pending or reasonably foreseeable litigation. She even titled her opinion, “Zubulake Revisited: Six Years Later.”
In Pension Committee of University of Montreal Pension Plan v. Banc of American Securities, LLC 05-CIV-9016, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Scheindlin sanctioned thirteen plaintiff investors for their failure to preserve ESI. Along the way, she sketched a general framework for determining how much to blame a litigant for its failure to preserve ESI and what sanctions to impose when a litigant’s conduct is blameworthy.
But the opinion will be more than just a warning. If Zubulake’s reception is any guide, the analytical framework laid out in Pension Committee will greatly influence judicial thinking about the discovery of ESI. Practitioners would be wise to be familiar with its contents.
