ABA

Colorado Catastrophe and Restoration, et al. v. Ted and Dorothy Newman: 7/14/08: This Breach of Contract case arising from reconstruction of a home residence after a fire is being tried to the court. Several ?duplicate? exhibits are offered, including the original Work Authorization; Scope of Work Estimate; City Building Inspection Report; and email communications between the parties. Each time a lawyer refers to an exhibit designation for a document that has previously been admitted under a different exhibit designation, it raises questions about why there is more than one version of the document being used. In most cases, there is no reason for this, other than the lawyers have not compared exhibit lists and worked to avoid duplication. Upon direct questioning by the court as to any differences between the exhibits, the lawyers are uncertain as to why more than one version has been offered. Moral? Use of duplicate exhibits may cause confusion or lead to questions even where none previously existed. Lawyers should carefully review any exhibit that appears to be a duplicate, and either remove a true copy, or quickly and specifically draw the court?s attention to any differences between the apparent duplicates. Sometimes, technology will be the most efficient way to identify these differences (scanning the documents and making a page-by-page comparison is a start) ? although good, old-fashioned eyeballing may be required. Otherwise, the court is left to wonder why ? this consequence is even more troublesome with jurors, as a juror with an unanswered question may be distracted by this ?non-issue? during questioning that the lawyer deems important.

Parties can't go beyond the grounds explicitly enumerated in the Federal Arbitration Act to vacate, modify, or correct an arbitration award.

Almost half of the chief legal officers surveyed say they plan to hire more in-house lawyers.

As a matter of federal maritime common law, courts must now apply a 1:1 ratio between punitive and compensatory damages.

This teleconference on September 9, 2008 will explain the background of the cases, their importance to litigators in pharmaceutical and tobacco cases, and their broader potential impact on the availability of state common-law remedies against manufacturers of products subject to federal regulation.

On May 29th, Magistrate Judge Paul W. Grimm of the U.S. District Court for the District of Maryland ruled that privilege was waived when defendants disclosed 165 electronic documents to the plaintiff. The case was a copyright infringement suit, and defendants turned over the documents as part of discovery after using keyword searches to identify privileged documents. The court found that because defendants did not demonstrate that their search was reasonable, defendants had waived privilege by disclosing the documents. The court stated that defendants could have showed reasonableness if they had stated why certain keywords were chosen, what the search was supposed to accomplish, and how the search protected against disclosure of privileged materials. In his opinion, Grimm emphasized the problems with keyword searches, including the risk of under-inclusive or over-inclusive terms resulting in privileged information being disclosed, and non-privileged information not being disclosed. These problems demonstrated why the party performing the search needs to present a rationale for the method chosen, show that the search was appropriate for the task, and show that it was properly implemented. The court also explained how to adequately assert privilege under the Federal Rules of Civil Procedure. Grimm explained that the reasons for claiming privilege must be laid out in a privilege log, and that disputes would be settled by an in-camera review of the documents by the courts. The case is Victor Stanley Inc., v. Creative Pipe Inc., and the full opinion may be found here.