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Posts Tagged ‘e-discovery’

I’ll be presenting at a Webcast on trends in social media and the law next Friday, June 6, along with Michele L. Gibbons of Jones Day.  See below for a program summary.  You can register by clicking this link:

Social Media Crash and Burn:
Cleaning up the Mess and Rebuilding
LIVE Webcast

In today’s digital age, corporations spend more on online advertising than in print to the tune of billions. However, as the corporate world utilizes social media, they should also be ready and responsive when the inevitable crash and burn occurs. Poorly executed social media campaigns have cost companies and individuals, big time.

Getting ahead of the game is always a good technique to help mitigate the risk and minimize the damages. Once a campaign is out in the wild, there’s no stopping it. You need to think ahead. Join this LIVE Webcast as some of the industry’s great minds share their opinions on best practices for using social media effectively and safely. They will also provide an in-depth look at its features and practical uses. The discussion will also include the following:

Thursday, June 6, 2013
12:00 pm – 2:00 pm (ET)

Credit Info:
Course Level: Intermediate
Prerequisite: None
Method of Presentation:
Group-Based-Internet
Recommended CLE/CPE Hours:
1.75 – 2.0
Advance Preparation:
Print and review course materials
Course Code: 134422 

• Advantages and Disadvantages of Social Media as a Marketing Tool
• Things to Consider in Generating and Implementing Social Media Policies
• Securing Data: Understanding CDA’s Safe Harbor and Privacy law
• Effective Ways of Mitigating and Managing Risks That May Exist
• Significant Legal Issues Related to Social Media Usage
• Damage Control
• Up-to-the minute Regulatory Updates
Social Media Crash and Burn: Cleaning up the Mess and Rebuilding — LIVE Webcast is a must-attend event for In-House Counsel, Risk Officers and Administrators, Data Security Professionals and other related professionals.

Speakers:
Paul G. Karlsgodt, Partner, BakerHostetler
Michele L. Gibbons, Of Counsel, Jones Day
(Note: if CLE or CPE is needed, a minimal/partial processing fee is $49 for the registrant. Otherwise, it’s 100 percent free to participate in the webcast.)
Register for this event
Email: info@knowledgecongress.org with any questions.
(Please note, complimentary passes are available for the first 30 registrants. Once all of the passes are used, attendees can register for the deeply discounted rate of $25 each, courtesy of BakerHostetler.)

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From time to time we will troll the class action blogosphere for news and information about our favorite class action topics.  Here are just a few of the recent headlines from around the web.

Complex litigation as a commodity investment? 

Hedge funds have traditionally been willing to explore new territory in the non-traditional investment sphere.  At least some appear to be finding potentially attractive opportunities in so-called Litigation Funding Companies.  LFC’s are often run by former lawyers–some with an investment or hedge fund background.  They identify potentially profitable lawsuits and agree to fund the litigation (to a point) in exchange for a percentage of the settlement.  Three Geeks and a Law Blog has an interesting multi-part series on this new trend.  Read it here.

http://www.geeklawblog.com/2012/03/rise-of-third-party-litigation-funding.html

10 ways to defend class actions using Walmart v. Dukes

Andrew Trask, class action attorney at McGuire Woods and co-author of the Class Action Playbook recently put together a list of takeaways explaining how class action defense attorneys can use Wal-mart v. Dukes.  His post links to a power point presentation he recently gave at DePaul University.  It’s a quick read and worth checking out.

http://www.classactioncountermeasures.com/uploads/file/DePaul%20-%20Defense.pdf

BP Settlement

The BP litigation in the Deepwater Horizon Oil Spill off the Gulf Coast has settled for all claimants except the federal government.  The Mass Tort Litigation Blog has been providing regular updates including this post discussing what’s known about the settlement.  It appears the settlement will consist of two separate agreements. One will resolve economic claims while the other will resolve medical claims.  The Blog cites news reports explaining that “either the settlement will be paid by the $20 billion fund BP created to compensate victims or the fund will close and be replaced by a court overseen claims facility.”

http://lawprofessors.typepad.com/mass_tort_litigation/

Irregular transaction was not enough to show a Bank had actual knowledge of an alleged Ponzi scheme.

Race to the Bottom contributor Susan Beblavi unpacks the Eleventh Circuit’s semi-recent opinion in Lawrence v. Bank of America, D.C. Docket No. 8:09-cv-02162-VMC-TGW, 2012 LEXIS 777 (11th Cir. Jan. 11, 2012).  In that case, putative class action plaintiffs alleged the Bank of America substantially assisted in a Ponzi scheme operated by one of its account holders.  The Eleventh Circuit upheld the District court’s dismissal of the case reasoning that even though BOA authorized numerous large transactions by the account holder, the bank wasn’t required to investigate them under Florida law.  Moreover, the court found the purported red flags were too weak to infer that it was plausible that the bank had actual knowledge of the alleged scheme.  Read more at the link below.

http://www.theracetothebottom.org/home/2012/3/8/lawrence-v-bank-of-america-allegations-of-actual-knowledge-o.html

Parens Patriae actions, class actions?

The 9th Circuit holds that parens patriae actions under Nevada law are not class actions removable to federal court under CAFA, adding to a circuit split on the issue.  For a succinct explanation, see Katherine Heckert’s post at the Carlton Fields Class Action Blog:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=521

Walmart v. Dukes reasoning reverses class certification again

Skaddon’s Russell Jackson posts that the Louisiana Supreme Court has again reversed class certification due to problems of commonality and causation.  Previously, the Louisiana high court adopted the U.S. Supreme Court’s common question analysis in Walmart v. Dukes to reverse class certification in Price v. Martin.  In a recent per curiam opinion in Alexander v. Norfolk So. Corp., No. 11-C-2793, Slip op. (La. Mar. 9, 2012), the Louisiana Supreme Court cited Price for the proposition that class certification requires a rigorous analysis and significant proof of a common question. The case involved a chemical spill involving train cars. Hundreds complained of a bad smell and irritation to their eyes, throat and nose.  This led to a class action that was certified by the trial court and affirmed by an appellate court.  It turned out, each putative class member would need individual toxicology testing to determine whether they are among the minority of people who are susceptible to very low levels of the released chemical.  The Louisiana Supreme Court ultimately reversed class certification based on the lack of predominance of common issues, and the need for individualized trials.  Read more here.

http://www.consumerclassactionsmasstorts.com/2012/03/articles/predominance-1/once-again-the-louisiana-supremes-reverse-class-certification-citing-causation-as-a-problem/

The Perils of Electronically Stored Information

Todd Dawson’s post on Baker Hostetler’s Employment Class Action Blog illustrates just how badly things can go when a key “smoking Howitzer” document slips through defense counsel’s ESI review and ends up in the plaintiffs’ hands.  In an FLSA Collective Action, the employer produced two million documents. Prior to the production, the employer’s attorneys used various search terms to identify privileged documents.  Inevitably, one got through – a bad one. Even worse, the court concluded that the employer had waived privilege.  Thus, not only did the plaintiffs’ counsel get to see the document, they got to use it as well.  To see how this disaster could have been avoided, read more here.

http://www.employmentclassactionreport.com/flsa/inadvertent-esi-disclosure-of-attorney-client-communication-waives-privilege-in-flsa-collective-acti/

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I will be speaking on trends in e-discovery at the upcoming Federal Practice Update 2011, co-sponsored by the Federal Bar Association and the CBA Litigation Section.  I hope to be an adequate fill-in for my partner, Karin Jenson, who has an unavoidable client commitment.  In addition to a number of other presentations on a variety of federal practice topics, the afternoon session will highlight a don’t-miss panel presentation of the U.S. District of Colorado Magistrate Judges entitled Pointers for Successful Litigation: The Magistrate Judge’s Role in Your Case.

If you’re interested in attending, here is a link to the event page:

 http://www.cobar.org/cle/item.cfm?EventID=LI052011L

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The Seventh Circuit Court of Appeals has begun implementation of an electronic discovery pilot program, which will be conducted between October 1, 2009 and May 1, 2010.  The program is the result of recommenations of an e-discovery committee of private practitioners, in-house counsel, judges, and e-discovery consultants, “formed to consider what can be done to reduce the costs of electronic discovery, and the costs of discovery and litigation more generally.”  The pilot program is to be guided by a set of e-discovery Principles, which are intended to “incentivize cooperative exchange of information on evidence preservation and discovery.”  A full report on Phase One of the pilot program is available at the Seventh Circuit’s website

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Anyone who practices in the area of class actions is no doubt intimately familiar with the complex issues and potential pitfalls involved in the discovery of electronic data.  As reported by the National Law Journal (through Law.com), Congress has passed legislation designed to create a new Federal Rule of Civil Procedure 502, which is intended to reduce the cost of producing electronic information.  The bill, which President Bush is expected to sign into law, will limit inadvertent waivers of privileged information in discovery in federal court.  Section (d) allows a federal court to order prospectively that no privilege or protection of information is waived by disclosure in connection with a case pending before it, which, as the NLJ article explains, provides a mechanism to exchange e-discovery without having to create voluminous, time consuming privilege logs.  The rule will not be limited to e-discovery, but is motivated by a desire to make litigation less expensive.

The rule will not change parties’ desire to not give an opponent’s lawyers access to sensitive attorney-client or litigation strategy information in the first place, so time will tell whether it has any significant practical impact in reducing litigation costs.

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