These are the slides from our Webcast on the Gibson Dunn 2012 E-Discovery Year-End Report. Watch for our 2013 Mid-Year E-Discovery Report around the end of June.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
Who is the most influential arbitrator in the world Rishab Gupta
This article analyzes methods for measuring influence and quality among arbitrators in investment treaty arbitration. It uses citation analysis and number of appointments to identify the most influential arbitrators. The article describes a database of 664 arbitral decisions and 5,516 citations. It finds that the 10 most cited decisions received between 101-103 citations each. The 10 most cited arbitrators received between 330-547 citations each after removing self-citations. The 10 arbitrators with the most appointments received between 15-29 appointments each. Francisco Orrego Vicuña, James Crawford, and Gabrielle Kaufmann-Kohler were among the most influential based on these two metrics.
The Vice Chancellor determined Dell's fair value was $17.62 per share, 26% above the buyout offer of $13.96. He developed a hybrid valuation model selecting reliable data from each expert. The Chancellor found issues with relying solely on market price and LBO models in determining fair value. He ultimately weighted two valuation approaches equally to determine Dell's fair value fell between $16.43-$18.81 per share.
This presentation by Damien Neven from the Graduate Institute of Geneva was made during the discussion “Safe harbours and legal presumptions in competition law” held at the 128th meeting of the OECD Competition Committee on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/21v.
This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
The document discusses new optional appellate arbitration rules developed by the American Arbitration Association (AAA). Key points:
- The rules establish an appellate process within arbitration to allow for higher-level review of awards while maintaining arbitration's expedited nature.
- Parties can agree to use the rules to appeal awards on issues of material legal errors or clearly erroneous factual findings.
- Appeals are typically documents-only with no oral arguments. The process aims to be completed within 3 months.
- The rules are intended for large, complex cases where appellate review is important.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
Who is the most influential arbitrator in the world Rishab Gupta
This article analyzes methods for measuring influence and quality among arbitrators in investment treaty arbitration. It uses citation analysis and number of appointments to identify the most influential arbitrators. The article describes a database of 664 arbitral decisions and 5,516 citations. It finds that the 10 most cited decisions received between 101-103 citations each. The 10 most cited arbitrators received between 330-547 citations each after removing self-citations. The 10 arbitrators with the most appointments received between 15-29 appointments each. Francisco Orrego Vicuña, James Crawford, and Gabrielle Kaufmann-Kohler were among the most influential based on these two metrics.
The Vice Chancellor determined Dell's fair value was $17.62 per share, 26% above the buyout offer of $13.96. He developed a hybrid valuation model selecting reliable data from each expert. The Chancellor found issues with relying solely on market price and LBO models in determining fair value. He ultimately weighted two valuation approaches equally to determine Dell's fair value fell between $16.43-$18.81 per share.
This presentation by Damien Neven from the Graduate Institute of Geneva was made during the discussion “Safe harbours and legal presumptions in competition law” held at the 128th meeting of the OECD Competition Committee on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/21v.
This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
The document discusses new optional appellate arbitration rules developed by the American Arbitration Association (AAA). Key points:
- The rules establish an appellate process within arbitration to allow for higher-level review of awards while maintaining arbitration's expedited nature.
- Parties can agree to use the rules to appeal awards on issues of material legal errors or clearly erroneous factual findings.
- Appeals are typically documents-only with no oral arguments. The process aims to be completed within 3 months.
- The rules are intended for large, complex cases where appellate review is important.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
July 12 Regulation University Presentation - SBATrevor Carlsen
This document is a presentation from the Office of Advocacy at the Small Business Administration about complying with the Regulatory Flexibility Act. It provides an overview of the Regulatory Flexibility Act compliance process and the key questions agencies must answer: whether the RFA applies, if the rule will significantly impact small entities, what the potential economic impacts are, and what alternatives are considered to minimize impacts. The presentation covers how to conduct threshold analyses, certifications, initial regulatory flexibility analyses, and final regulatory flexibility analyses in accordance with the RFA's requirements. It emphasizes involving small businesses and Advocacy early in the rulemaking process to improve RFA compliance.
- The document summarizes an interview between Jamie Ritchie and Niall Lawless, an experienced Irish construction adjudicator, about adjudication in Ireland.
- In the interview, Lawless discusses some of the main differences between adjudication in the UK and Ireland, including that in Ireland it is limited to payment disputes. He also provides insight into typical adjudicator backgrounds and fees.
- Common grounds for challenging an adjudicator's decision that Lawless has seen include issues around jurisdiction and natural justice. He also notes some circumstances where an oral hearing in adjudication may be appropriate.
This document summarizes a presentation given by Andrew I. Gavil on safe harbors and legal presumptions in competition law. The key points are:
1. There has been a trend towards more "effects-based" decision making in competition law and a focus on reducing "false positives" or unwarranted findings of liability. This has led to more demanding evidentiary standards.
2. Probabilistic decision making is necessary given imperfect information. Legal presumptions and inferences help structure analysis by shifting evidentiary burdens in a way informed by economic reasoning.
3. The presentation used the example of the core market power and conduct paradigm to illustrate how inferences and presumptions can build logical steps in determining whether conduct is
This webinar discusses cost-benefit analysis and its application to criminal justice policy for budget and finance staff. It compares cost-benefit analysis to fiscal impact analysis, outlines key questions to ask when reviewing cost-benefit studies, and provides examples of how cost-benefit analysis has influenced budget decisions. The presenters are from the Utah Office of the Legislative Fiscal Analyst and the Kentucky Legislative Research Commission.
Agency Design and Policy-Based Evidence-Making at the Consumer Financial Prot...Mercatus Center
This document discusses issues with the structure and policymaking approach of the Consumer Financial Protection Bureau (CFPB). It argues that the CFPB's structure as an independent agency headed by a single director and exempt from oversight makes it unconstrained. It also criticizes the CFPB's approach of using "policy-based evidence making" to justify regulations while ignoring alternative evidence. Specific rules and studies by the CFPB on mortgages, auto lending, payday lending, and overdraft protection are analyzed to show flaws in the CFPB's methods and use of evidence to support its policies.
This document summarizes and examines the legislative review mechanism for erroneous adjudication determinations in Singapore. It discusses the following key points:
1) Singapore introduced an adjudication review mechanism allowing respondents to have determinations reviewed by another adjudicator on its merits, which is unique compared to other jurisdictions.
2) The review mechanism aims to remedy injustice from hasty adjudications and increase confidence in outcomes, as adjudicators have limited time to consider complex cases.
3) The mechanism has shortcomings including restrictions, ambiguities in procedures, and fixed timelines that may not suit all complex cases. While it increases fairness, the review process could still be improved.
The document summarizes key topics from the Eversheds TMT Conference 2013, including contracting issues, open source software, and penalties. It discusses increasing use of cooperation agreements between vendors and defines best and reasonable endeavors clauses. It also addresses indemnities, noting they should only be used if appropriate, and open source software, emphasizing the need to clearly define obligations. The document cautions that penalty clauses must still reasonably estimate losses to be enforceable. It concludes by outlining considerations for "Bring Your Own Device" strategies regarding infrastructure, data protection, and conclusions.
CFPB: Impact on Traditional Installment Lending Mercatus Center
This document discusses the potential impact of the Consumer Financial Protection Bureau (CFPB) on traditional installment lending. It provides an overview of a lending company, including its size, loan products, and practices. It then outlines key issues the CFPB may examine, such as loan costs, fees, and specific lending practices. It argues that the CFPB's approach could increase customer costs, reduce some customers' access to credit, and make lenders less flexible, responsive and profitable by questioning established loan structures and practices.
The document provides an overview and update on SPeRS (Standards and Procedure for Electronic Records and Signatures), which was initially published in 2003 to establish industry standards and best practices for electronic transactions and signatures. SPeRS 2.0 will be published in November 2011, addressing new issues and legal/regulatory developments since 2003. It discusses topics like electronic notarization, case law on authentication and consent, and agreements/notices in electronic transactions.
Remaking IT for New U.S. Mortgage Rule ComplianceCognizant
To benefit from the improved housing market, lenders need to play offense by finding new ways to efficiently comply with regulations, tighten controls over the lending process and better engage with customers.
This document discusses the evolving inconsistency in Australian case law regarding judicial review of statutory construction adjudication determinations. It notes that while courts have a supervisory role over adjudications, their involvement can undermine the objective of security of payment legislation to facilitate cash flow. The document analyzes different types of errors adjudicators can make and how courts have inconsistently classified errors as jurisdictional vs non-jurisdictional. It argues this inconsistency is confusing and contributes to the erosion of the legislation's objective by bogging down the adjudication process in judicial review. Moving forward, the document suggests establishing a legislative review mechanism for jurisdictional challenges may help address this problem.
This document provides an overview of project finance and public-private partnerships. It discusses key definitions, including distinguishing project finance from corporate finance. Project finance relies on the cash flows generated by a single project to repay lenders, rather than relying on corporate sponsors. The document outlines the contractual structure of project finance deals and industries amenable to limited recourse financing. It also notes benefits and drawbacks of the project finance model compared to corporate finance. Public-private partnerships are defined as cooperative ventures between public and private sectors to meet public needs through shared resources.
How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts (Se...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/how-to-avoid-malpractice-disciplinary-actions-general-dos-and-donts-2021/
Potential Opportunities for Common Federal Biometric ServicesDuane Blackburn
Looking long term, what could be done to alter the foundations that federal biometric systems are built upon, thus enabling advancements that may not be possible today? In other words: How could these systems evolve to be more adaptive and flexible, both individually and as a whole?
MITRE internally funded a quick analysis to develop initial strategic thoughts on this topic, based on its in-depth knowledge of the existing systems. It is important to note that this project did not perform a deep-dive analysis of various options, and it does not present detailed actionable recommendations. Rather, it capitalizes on existing knowledge and experiences to analyze numerous potential opportunities and to identify those that we feel hold the most promise. It is this latter set of opportunities that are presented in this presentation. In each case, MITRE recommends more thorough analysis and interagency discussion take place amongst federal departments, prior to any actionable decisions being made.
2013 04-11 principled appellate decisionsD. Todd Smith
This document discusses factors that appellate judges should consider to reach principled appellate decisions. It examines the concepts of stare decisis, standards of review, and analyzing the sufficiency of evidence. Principled appellate decisions adhere to precedent, identify the correct standard of review, address all arguments raised, and do not rely on unassigned issues or unnecessary dicta. The document provides examples and "sound bites" from appellate practitioners on properly applying these concepts.
Business Borrowing Basics 2020 - Dealing With DefaultsFinancial Poise
Some borrowers default. One type of default is a payment default- the loan is not paid when due or a particular payment is missed. The other type of default is a covenant default. This webinar explains both, and discusses what happens when one happens.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/dealing-with-defaults-2020/
This document summarizes the key findings of a survey of 100 senior in-house counsel on the state of e-discovery. The survey found that counsel give internal and external e-discovery resources an average effectiveness grade of 6.5 out of 10. Understanding the potential evidence universe early in a case and reducing processing fees were the most important e-discovery management factors. Over half of companies have adopted cloud-based storage and hired outside vendors to improve e-discovery. The average annual e-discovery spending is $10.7 million and over 40% expect spending to increase.
Brief The Board, Osler’s new five part webinar series, will provide you with practical tips on how to brief your board members and senior management, both in terms of key substantive points and effective (and privileged) communication skills, so you and your organization can respond nimbly and competently in business critical situations.
This document summarizes the findings of a survey of 819 lenders on their environmental risk management practices. The top challenges lenders face are: (1) lack of expertise to understand environmental reports and make risk-based decisions, (2) need for internal education and training on how environmental due diligence fits into the lending process, and (3) turnaround time constraints. While lender policies have evolved since the real estate downturn, many - especially smaller banks - still lack formal policies or training. As lending slowly increases, lenders need assistance justifying due diligence costs, basic training, and help balancing regulatory compliance with maintaining competitiveness.
Stays of Litigation Pending Post-AIA Patent ReviewKlemchuk LLP
Brief overview of post-AIA patent review procedures, overview of post-AIA stays of litigation pending patent review, and the analysis of district court orders on motions to stay pending patent review
Implications of 2015 Amendments to the Federal Rules of Civil ProcedureWinston & Strawn LLP
During this eLunch, we reviewed the practical implications of the upcoming changes to Rule 26(b) regarding the scope of relevance and proportionality and also focused on the new national uniform standard under Rule 37(e) for the implementation of curative measures and/or sanctions for the failure to preserve relevant electronically stored information.
This interactive webinar was presented by Winston & Strawn eDiscovery & information governance practice chair John Rosenthal and senior eDiscovery attorney Christopher Costello. Mr. Rosenthal was intimately involved in the rules amendment process and testified before the Advisory Committee on several occasions.
July 12 Regulation University Presentation - SBATrevor Carlsen
This document is a presentation from the Office of Advocacy at the Small Business Administration about complying with the Regulatory Flexibility Act. It provides an overview of the Regulatory Flexibility Act compliance process and the key questions agencies must answer: whether the RFA applies, if the rule will significantly impact small entities, what the potential economic impacts are, and what alternatives are considered to minimize impacts. The presentation covers how to conduct threshold analyses, certifications, initial regulatory flexibility analyses, and final regulatory flexibility analyses in accordance with the RFA's requirements. It emphasizes involving small businesses and Advocacy early in the rulemaking process to improve RFA compliance.
- The document summarizes an interview between Jamie Ritchie and Niall Lawless, an experienced Irish construction adjudicator, about adjudication in Ireland.
- In the interview, Lawless discusses some of the main differences between adjudication in the UK and Ireland, including that in Ireland it is limited to payment disputes. He also provides insight into typical adjudicator backgrounds and fees.
- Common grounds for challenging an adjudicator's decision that Lawless has seen include issues around jurisdiction and natural justice. He also notes some circumstances where an oral hearing in adjudication may be appropriate.
This document summarizes a presentation given by Andrew I. Gavil on safe harbors and legal presumptions in competition law. The key points are:
1. There has been a trend towards more "effects-based" decision making in competition law and a focus on reducing "false positives" or unwarranted findings of liability. This has led to more demanding evidentiary standards.
2. Probabilistic decision making is necessary given imperfect information. Legal presumptions and inferences help structure analysis by shifting evidentiary burdens in a way informed by economic reasoning.
3. The presentation used the example of the core market power and conduct paradigm to illustrate how inferences and presumptions can build logical steps in determining whether conduct is
This webinar discusses cost-benefit analysis and its application to criminal justice policy for budget and finance staff. It compares cost-benefit analysis to fiscal impact analysis, outlines key questions to ask when reviewing cost-benefit studies, and provides examples of how cost-benefit analysis has influenced budget decisions. The presenters are from the Utah Office of the Legislative Fiscal Analyst and the Kentucky Legislative Research Commission.
Agency Design and Policy-Based Evidence-Making at the Consumer Financial Prot...Mercatus Center
This document discusses issues with the structure and policymaking approach of the Consumer Financial Protection Bureau (CFPB). It argues that the CFPB's structure as an independent agency headed by a single director and exempt from oversight makes it unconstrained. It also criticizes the CFPB's approach of using "policy-based evidence making" to justify regulations while ignoring alternative evidence. Specific rules and studies by the CFPB on mortgages, auto lending, payday lending, and overdraft protection are analyzed to show flaws in the CFPB's methods and use of evidence to support its policies.
This document summarizes and examines the legislative review mechanism for erroneous adjudication determinations in Singapore. It discusses the following key points:
1) Singapore introduced an adjudication review mechanism allowing respondents to have determinations reviewed by another adjudicator on its merits, which is unique compared to other jurisdictions.
2) The review mechanism aims to remedy injustice from hasty adjudications and increase confidence in outcomes, as adjudicators have limited time to consider complex cases.
3) The mechanism has shortcomings including restrictions, ambiguities in procedures, and fixed timelines that may not suit all complex cases. While it increases fairness, the review process could still be improved.
The document summarizes key topics from the Eversheds TMT Conference 2013, including contracting issues, open source software, and penalties. It discusses increasing use of cooperation agreements between vendors and defines best and reasonable endeavors clauses. It also addresses indemnities, noting they should only be used if appropriate, and open source software, emphasizing the need to clearly define obligations. The document cautions that penalty clauses must still reasonably estimate losses to be enforceable. It concludes by outlining considerations for "Bring Your Own Device" strategies regarding infrastructure, data protection, and conclusions.
CFPB: Impact on Traditional Installment Lending Mercatus Center
This document discusses the potential impact of the Consumer Financial Protection Bureau (CFPB) on traditional installment lending. It provides an overview of a lending company, including its size, loan products, and practices. It then outlines key issues the CFPB may examine, such as loan costs, fees, and specific lending practices. It argues that the CFPB's approach could increase customer costs, reduce some customers' access to credit, and make lenders less flexible, responsive and profitable by questioning established loan structures and practices.
The document provides an overview and update on SPeRS (Standards and Procedure for Electronic Records and Signatures), which was initially published in 2003 to establish industry standards and best practices for electronic transactions and signatures. SPeRS 2.0 will be published in November 2011, addressing new issues and legal/regulatory developments since 2003. It discusses topics like electronic notarization, case law on authentication and consent, and agreements/notices in electronic transactions.
Remaking IT for New U.S. Mortgage Rule ComplianceCognizant
To benefit from the improved housing market, lenders need to play offense by finding new ways to efficiently comply with regulations, tighten controls over the lending process and better engage with customers.
This document discusses the evolving inconsistency in Australian case law regarding judicial review of statutory construction adjudication determinations. It notes that while courts have a supervisory role over adjudications, their involvement can undermine the objective of security of payment legislation to facilitate cash flow. The document analyzes different types of errors adjudicators can make and how courts have inconsistently classified errors as jurisdictional vs non-jurisdictional. It argues this inconsistency is confusing and contributes to the erosion of the legislation's objective by bogging down the adjudication process in judicial review. Moving forward, the document suggests establishing a legislative review mechanism for jurisdictional challenges may help address this problem.
This document provides an overview of project finance and public-private partnerships. It discusses key definitions, including distinguishing project finance from corporate finance. Project finance relies on the cash flows generated by a single project to repay lenders, rather than relying on corporate sponsors. The document outlines the contractual structure of project finance deals and industries amenable to limited recourse financing. It also notes benefits and drawbacks of the project finance model compared to corporate finance. Public-private partnerships are defined as cooperative ventures between public and private sectors to meet public needs through shared resources.
How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts (Se...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/how-to-avoid-malpractice-disciplinary-actions-general-dos-and-donts-2021/
Potential Opportunities for Common Federal Biometric ServicesDuane Blackburn
Looking long term, what could be done to alter the foundations that federal biometric systems are built upon, thus enabling advancements that may not be possible today? In other words: How could these systems evolve to be more adaptive and flexible, both individually and as a whole?
MITRE internally funded a quick analysis to develop initial strategic thoughts on this topic, based on its in-depth knowledge of the existing systems. It is important to note that this project did not perform a deep-dive analysis of various options, and it does not present detailed actionable recommendations. Rather, it capitalizes on existing knowledge and experiences to analyze numerous potential opportunities and to identify those that we feel hold the most promise. It is this latter set of opportunities that are presented in this presentation. In each case, MITRE recommends more thorough analysis and interagency discussion take place amongst federal departments, prior to any actionable decisions being made.
2013 04-11 principled appellate decisionsD. Todd Smith
This document discusses factors that appellate judges should consider to reach principled appellate decisions. It examines the concepts of stare decisis, standards of review, and analyzing the sufficiency of evidence. Principled appellate decisions adhere to precedent, identify the correct standard of review, address all arguments raised, and do not rely on unassigned issues or unnecessary dicta. The document provides examples and "sound bites" from appellate practitioners on properly applying these concepts.
Business Borrowing Basics 2020 - Dealing With DefaultsFinancial Poise
Some borrowers default. One type of default is a payment default- the loan is not paid when due or a particular payment is missed. The other type of default is a covenant default. This webinar explains both, and discusses what happens when one happens.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/dealing-with-defaults-2020/
This document summarizes the key findings of a survey of 100 senior in-house counsel on the state of e-discovery. The survey found that counsel give internal and external e-discovery resources an average effectiveness grade of 6.5 out of 10. Understanding the potential evidence universe early in a case and reducing processing fees were the most important e-discovery management factors. Over half of companies have adopted cloud-based storage and hired outside vendors to improve e-discovery. The average annual e-discovery spending is $10.7 million and over 40% expect spending to increase.
Brief The Board, Osler’s new five part webinar series, will provide you with practical tips on how to brief your board members and senior management, both in terms of key substantive points and effective (and privileged) communication skills, so you and your organization can respond nimbly and competently in business critical situations.
This document summarizes the findings of a survey of 819 lenders on their environmental risk management practices. The top challenges lenders face are: (1) lack of expertise to understand environmental reports and make risk-based decisions, (2) need for internal education and training on how environmental due diligence fits into the lending process, and (3) turnaround time constraints. While lender policies have evolved since the real estate downturn, many - especially smaller banks - still lack formal policies or training. As lending slowly increases, lenders need assistance justifying due diligence costs, basic training, and help balancing regulatory compliance with maintaining competitiveness.
Stays of Litigation Pending Post-AIA Patent ReviewKlemchuk LLP
Brief overview of post-AIA patent review procedures, overview of post-AIA stays of litigation pending patent review, and the analysis of district court orders on motions to stay pending patent review
Implications of 2015 Amendments to the Federal Rules of Civil ProcedureWinston & Strawn LLP
During this eLunch, we reviewed the practical implications of the upcoming changes to Rule 26(b) regarding the scope of relevance and proportionality and also focused on the new national uniform standard under Rule 37(e) for the implementation of curative measures and/or sanctions for the failure to preserve relevant electronically stored information.
This interactive webinar was presented by Winston & Strawn eDiscovery & information governance practice chair John Rosenthal and senior eDiscovery attorney Christopher Costello. Mr. Rosenthal was intimately involved in the rules amendment process and testified before the Advisory Committee on several occasions.
The document summarizes several topics related to new top level domain names (gTLDs) and intellectual property law. The application process for new gTLDs will reopen for five days in June, with objections starting later. Over 2000 applicants so far cover a variety of types like industries, brands, and charities. Applications will be processed in batches starting early 2013. A new clearinghouse will handle objections and reservations. Watch out for solicitations regarding reserving names.
Patent Law Review - IP Year in Review CLE v2Bryan Beel
This document provides a summary of a presentation on recent developments in patent law given to the Oregon State Bar Intellectual Property Section. It discusses several topics, including proposed patent legislation, practice before the International Trade Commission and Patent and Trademark Office, as well as recent decisions from the Federal Circuit and Supreme Court that have impacted patent law. The presentation was delivered by Bryan Beel of Perkins Coie LLP on February 14, 2014.
The Seventh Circuit developed principles relating to the discovery of electronically stored information that were codified into a standing order to serve as supplemental guidelines for selected cases in the circuit's eDiscovery pilot program, and the program will assess the effectiveness of the principles and modify them as needed based on feedback from participating judges and lawyers.
NEWBIE LITIGATOR SCHOOL - Part I 2022 - The Federal Rules of Civil ProcedureFinancial Poise
Has it been 10 years since you took Civil Procedure in law school? Are you a business owner that’s been sued for the first time? How does litigation really move through the Federal Courts? This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the listener will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour-long discussion.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- PART 1 2022
See more at https://www.financialpoise.com/webinars/
The Federal Rules of Civil Procedure (Series: Newbie Litigator School)Financial Poise
This webinar provides an overview of the Federal Rules of Civil Procedure. It discusses how a civil case is initiated through filing a complaint and serving the defendant. It also covers motions to dismiss, discovery procedures, summary judgment, and other pre-trial and trial processes governed by the Federal Rules. The panelists are experienced litigators who provide context and real-world perspectives on the Rules. The webinar is part of a series aimed at refreshing attorneys on civil litigation fundamentals.
Lessons learned from litigating real estate development projectsPolsinelli PC
Real estate development projects are filled with uncertainty. Zoning and permitting denials, disputes with neighboring property owners and citizen groups, and ambiguity in development contracts can cause significant setbacks to even the most well planned developments. This webinar will explore the many pitfalls of the development process and how to navigate them. Four Polsinelli attorneys offer their guidance and insights gained from litigating these very types of issues.
DBA Presentation On E-Discovery by Kirby DrakeKlemchuk LLP
This document provides an overview of electronic discovery (e-discovery) including the e-discovery process, key influencers like company size and data infrastructure, and the typical e-discovery model. It discusses 2015 rule changes focusing on proportionality and cooperation. Key takeaways include thinking and acting proportionally, having early discussions to define discovery scope, and using honesty and diligence. The document also covers specific issues like social media discovery, email and privilege challenges, preservation obligations, and case examples where parties ran into issues or sanctions related to e-discovery and preservation.
The document summarizes the key changes to the Federal Rules of Civil Procedure that took effect on December 1, 2015. The amendments aimed to reduce delays, narrow the scope of discovery, and clearly define consequences for failure to preserve electronically stored information. Specific rules that were amended include Rules 1, 4, 16, 26, 30-34, 37, 55, and 84. The changes included shortening various time frames, emphasizing proportionality in discovery, and revising Rule 37 to provide clearer standards around sanctions for lost ESI.
The document summarizes several topics discussed at a prosecution group luncheon meeting at the Patent and Trademark Office (PTO) in October 2012. It discusses the decreasing patent application backlog at the PTO due to hiring initiatives. It also summarizes a proposed rule for derivation proceedings and tips for related US and European patent filings. Additionally, it outlines a proposal to generally adopt ABA Model Rules of Professional Conduct for patent practitioners and summarizes recent court cases related to patent eligibility of software and the use of prior art references in inter partes reexaminations.
This webinar discusses discovery practice in litigation. It begins with an overview of the rules governing discovery, including initial disclosures, written discovery like requests for production of documents and interrogatories, and oral discovery such as depositions. It covers topics like proportionality, preservation of electronic data, discovery from non-parties, and expert discovery procedures. The webinar provides both an explanation of the procedural rules and practical guidance about managing the discovery process.
The document summarizes the key changes to the Federal Rules of Civil Procedure (FRCP) that took effect on December 1, 2015. The amendments aim to encourage early and meaningful engagement between parties to appropriately narrow the scope of discovery. Specifically, Rule 16 requires earlier scheduling orders that address preservation of electronically stored information and discovery conferences. Rule 26 redefines discovery's scope to only include information that is relevant and proportional. It also allows parties to request documents before discovery conferences. Rule 34 requires specific objections to document requests rather than boilerplate objections. Rule 37 establishes standards for sanctions over lost electronically stored information that focus on parties acting reasonably during preservation efforts.
This presentation by Paul Crampton, Chief Justice of the Canadian Federal Court and Member of the Competition Tribunal, was made during the discussion “Judicial perspectives on competition law” held at the 16th meeting of the OECD Global Forum on Competition on 8 December 2017. More papers and presentations on the topic can be found out at oe.cd/jpcl.
Maintaining the Business Case for Equality - Reducing Risk and Ensuring Compl...SWF
The document discusses the dismantling of individual rights and attacks on equality and human rights in the UK. It summarizes the findings of a review of the Public Sector Equality Duty (PSED) in Wales, which found that the PSED raised the profile of equality and provided a structure for equality work, but that organizations faced challenges from a lack of clear guidance. It also outlines budget savings from various welfare reforms in the UK totaling over £5 billion.
Similar to Webcast Slides--Gibson Dunn 2012 Year-End Report and Hot Topics (20)
Maintaining the Business Case for Equality - Reducing Risk and Ensuring Compl...
Webcast Slides--Gibson Dunn 2012 Year-End Report and Hot Topics
1. Current E-Discovery Hot Topics and
2012 Year-End E-Discovery Report
Moving Beyond Sanctions and Toward Solutions to Difficult
Problems
March 7, 2013
2. <Presentation Title/Client Name>
2
2012: Year In Review
• Less attention to:
– Sanctions
• More attention to:
– Predictive coding
– International e-discovery
– Cooperation
– Social networking
• A sign of things to come?
4. <Presentation Title/Client Name>
4
Sanctions
Less Dramatic, More Pragmatic, But Still Troubling
• No major dramatic opinions in 2012 like those seen
in prior years
• Still a significant threat hanging over litigants and
counsel
– Sanctions awarded in 69 of the 120 cases found
where sanctions were sought (57.5%)
– Similar rate (though fewer in number) when
compared to 2011 (sanctions granted in 90 of 150
cases, or 60%)
5. <Presentation Title/Client Name>
5
Sanctions
Less Dramatic, More Pragmatic, But Still Troubling
44
20
10
5
14
0
5
10
15
20
25
30
35
40
45
50
Monetary Adverse
Inference
Evidence
Preclusion
Terminating Other
Type and Percentage of Reported Cases Where Sanctions Granted
(January 1 –December 31, 2012)
6. <Presentation Title/Client Name>
6
Sanctions
Less Dramatic, More Pragmatic, But Still Troubling
• Monetary Sanctions still most common
– e.g., fees and costs
• Adverse Inference & Evidence Preclusion
– right to impose often “reserved” until entry of evidence
• Terminating Sanctions for egregious conduct
– e.g., willful destruction of evidence expected to be
relevant
• Other possibilities to fit specific situations
– e.g., reopening discovery or re-deposing witness
7. <Presentation Title/Client Name>
7
Sanctions
Less Dramatic, More Pragmatic, But Still Troubling
• Rambus cases reveal inconsistencies in different
courts’ treatment of similar conduct
• Micron v. Rambus (D. Delaware)
– January 3, 2013: case dispositive sanctions
imposed; patents declared unenforceable
• Hynix v. Rambus (N.D. California)
– September 21, 2012: validity of patents
recognized; spoliation punished with monetary
formula
9. <Presentation Title/Client Name>
9
Proposed Rule Reform
• The cost and burden associated with discovery have resulted
in a recognition that changes need to be made to the Federal
Rules of Civil Procedure
• Three main themes guiding reform efforts of the Federal Rules
Civil Advisory Committee and the Discovery Subcommittee:
– Early, hands-on case management
– Cooperation
– Proportionality/Scope of Discovery
• Goal to present comprehensive discovery rule changes for
public comment later this year
10. <Presentation Title/Client Name>
10
Proposed Rule Reform
• Proposed Change to Rule 37(e)
– Current Rule: “Absent exceptional circumstances, a court may not impose sanctions
under these rules on a party for failing to provide electronically stored information lost as a
result of the routine, good-faith operation of an electronic information system.”
– Proposed Rule:
• Absent a finding that the failure to preserve “irreparably deprived a party of any
meaningful opportunity to present a claim or defense” sanctions will only be justified
when the failure to preserve was willful or in bad faith and caused substantial prejudice
• Seeks to have a court rely on the Federal Rules as the basis for issuing sanctions, not the
court’s inherent power
• Sets forth five factors for a court to consider when evaluating if the failure to preserve
was willful or in bad faith: (1) notice of pending litigation/preservation duty; (2)
reasonableness of the party’s efforts to preserve; (3) was there a request to preserve and
good-faith consultation regarding the scope of preservation; (4) proportionality of
preservation to the scope of litigation; (5) did the preserving party seek timely guidance
from the court regarding preservation
11. <Presentation Title/Client Name>
11
Proposed Rule Reform
• Additional changes being considered
– Early case management
• Promote early conferences with the court on discovery issues
• Potentially permit Rule 34 requests for production to be served before
Rule 26(f) conference
– Cooperation
• Amend Rule 1 to more clearly articulate goal of cooperation
– Proportionality
• Proposal to modify scope of discovery under Rule 26
• Potential inclusion of the concept of proportionality as part of Rule 26
• Presumptive limit to 15 interrogatories instead of 25
• Presumptive limit to 25 requests for admission (excluding document
authenticity) and 25 requests for production
• Presumptive limit of 5 depositions instead of 10 depositions with a
proposal to shorten the permitted length of depositions
13. <Presentation Title/Client Name>
13
Search Methodology
Has Predictive Coding’s Time Finally Come?
• Predictive Coding Terminology
– “Seed set”
– “Recall” vs. “precision”
– “Stabilization” / “iterative review”
• Five considerations from Da Silva Moore v. Publicis Groupe
SA, No. 11 Civ. 1279(ALC)(AJP), 2012 WL 607412, at *11
(S.D.N.Y Feb. 24, 2012)
– The parties’ agreement;
– The amount of ESI to be reviewed;
– The superiority of computer-assisted review to available
alternatives;
– The need for cost-effectiveness and proportionality; and
– The transparency of the process.
14. <Presentation Title/Client Name>
14
Search Methodology
Has Predictive Coding’s Time Finally Come?
• Predictive coding beyond Da Silva Moore
– Global Aerospace Inc. v. Landow Aviation, L.P., Consol. Case. No.
CL 61040 (Va. Cir. Ct. Apr. 23, 2012) (approving defendants’ use
of predictive coding without prejudice to plaintiffs’ raising an
issue as to the completeness of defendants’ production).
– Kleen Products LLC v. Packaging Corp. of America, Case No. 1:10-
cv-05711 (N.D. Ill. Mar. 28, 2012) (denying plaintiffs’ motion for
an order requiring defendants to use predictive coding).
– In Re: Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-
2299 (W.D. La. July 27, 2012) (approving defendants’ use of
predictive coding pursuant to stipulated protocol).
– EORHB, Inc. v. HOA Holdings LLC, Civil Action No. 7409-VCL (Del.
Ch. Oct. 15, 2012) (sua sponte ordering the use of predictive
coding and a single discovery vendor).
15. <Presentation Title/Client Name>
15
Privilege
Waiver Is Such Sweet Sorrow
• Waiver battles under Federal Rule of Evidence 502(b)
– What are “reasonable efforts to prevent disclosure”?
– What are “reasonable efforts to rectify” an inadvertent disclosure?
• No fault “claw-back” orders under Federal Rule of Evidence 502(d)
– May allow parties “to conduct and respond to discovery expeditiously, without
the need for exhaustive pre-production privilege reviews, while still preserving
each party’s right to assert the privilege.’” Adair v. EQT Prod. Co., Nos.
1:10CV00037, 1:10CV00041, 2012 WL 2526982, at *5 (W.D. Va. June 29,
2012).
• Privilege and work computers
– Employees who have privileged communications on work computers, in
violation of employer policies, generally waive privilege because they have no
objectively reasonable expectation of confidentiality regarding those
communications. See, e.g., Chechele v. Ward, No. CIV-10-1286-M, 2012 WL
4481439 (W.D. Okla. Sept. 28, 2012).
17. <Presentation Title/Client Name>
17
Proportionality
An Increasingly Important Principle
• Proportionality concept reflected in e-discovery pilot
projects, standing orders and proposed amendments
to the Federal Rules of Civil Procedures Rules
26 (scope of discovery) and 37 (sanctions)
• Sedona Conference® issued post-public comment
version of its Commentary on Proportionality in Jan.
2013
• Courts continue to engage in mediating discovery
disputes
18. <Presentation Title/Client Name>
18
Proportionality
The Sedona Conference® Commentary on Proportionality
• Sedona Principle One: The burdens and costs of
preserving potentially relevant information should be
weighed against the potential value and uniqueness
of the information when determining the
appropriate scope of preservation.
• Sedona Principle Four: Extrinsic information and
sampling may assist in the analysis of whether
requested discovery is sufficiently important to
warrant the burden and expense of its production.
19. <Presentation Title/Client Name>
19
Proportionality
Neither one size, nor one precedent, fits all
• Detailed assessment of benefit and cost are required
– Expert testimony can be helpful
• Overbroad discovery requests should not (and will
not) be enforced
• Cooperation and open communication with opposing
counsel is encouraged
– or required, in some courts
21. <Presentation Title/Client Name>
21
Preservation
Data Sources Proliferate While Case Law Provides Little Specific Guidance
• Companies facing challenges to preserve
ever-increasing number of data sources
• Cases continue to provide little guidance on this
issue
• Instead, major case law focuses over past year:
– Oral vs. written preservation notices
– Trigger for preservation obligations
– Post-notice follow-up obligations
– “Discovery about discovery”
22. <Presentation Title/Client Name>
22
Preservation
Data Sources Proliferate While Case Law Provides Little Specific Guidance
• Oral vs. written preservation notices
– Continued rejection of Pension Committee’s bright-line
rule (e.g., Chin)
– Recognition that oral holds may be appropriate in some
instances…
– …but in practice courts still very critical of oral holds
– Best practice: written preservation notice
• Trigger
– “Reasonably foreseeable” still the test
– Applies to plaintiffs as well as to defendants
23. <Presentation Title/Client Name>
23
Preservation
Data Sources Proliferate While Case Law Provides Little Specific Guidance
• Post-notice follow-up obligations
– Consensus that “mere circulation of a litigation hold is
insufficient . . . a party must take affirmative steps”
– Other than suspending autodeletion, little clarification of
what particular follow-up steps courts expect
– Some best practices have been developed (e.g., Sedona
commentary legal holds, Sedona principles)
• “Discovery about discovery”
– Court continue to shield information based on privilege…
– …but “growing trend among courts to find the attorney-
client privilege is lost when spoliation has occurred”
25. <Presentation Title/Client Name>
25
E-Discovery As A “Cost”
Statutory Background
• What are “costs” that may be awarded to a prevailing
party?
– Fed. R. Civ. Pro. 54(d)(1): “[C]osts... should be
allowed to the prevailing party”
– 28 U.S.C. 1920: including as a cost “fees for
exemplification and the costs of making copies.”
• What is “exemplification”? What is “making copies”?
26. <Presentation Title/Client Name>
26
E-Discovery As A “Cost”
Recouping vendor fees and other e-discovery charges as a prevailing party
• Race Tires America, Inc. v. Hoosier Racing Tire Corp.,
674 F.3d 158 (3d Cir. 2012)
– “Making copies” includes:
• Scanning
• File format conversion (native to TIFF)
• Converting VHS to DVD
– “Exemplification” does not include:
• Electronic vendor discovery work (including
keyword searches, preservation and collection)
27. <Presentation Title/Client Name>
27
E-Discovery As A “Cost”
Recouping vendor fees and other e-discovery charges as a prevailing party
• After Race Tires…
– Country Vintner of North Carolina v. E. & J. Gallo Winery,
Inc., No. 5:09-CV-326-BR, 2012 U.S. Dist. LEXIS 108905
(E.D. N.C. Aug. 3, 2012)
– Johnson v. Allstate Ins. Co., No. 07-cv-0781-SCW, 2012 U.S.
Dist. LEXIS 148282 (S.D. Ill. Oct. 16, 2012) (awarding “costs
of converting data into readable format”)
– El Camino Resources, Ltd. v. Huntington Nat’l Bank, No.
1:07-cv-598, 2012 U.S. Dist. LEXIS 146037 (W.D. Mich. May
3, 2012)
– Gabriel Techs., Corp. v. Qualcomm, Inc., No. 08CV1992, AJB
(MDD), 2013 WL 410103 (S.D. Cal. Feb. 1, 2013)
29. <Presentation Title/Client Name>
29
Social Media
Courts Adapt Traditional Discovery Rules to New Technology
• As use of social media by individuals and companies
proliferates, the number of cases involving discovery
of social media continues to grow
• Courts have become more successful at adapting
discovery rules and procedures to social media
• Some examples:
– Preservation and spoliation
– Authentication
– Collection of data
30. <Presentation Title/Client Name>
30
Social Media
Courts Adapt Traditional Discovery Rules to New Technology
• Preservation & Spoliation
– Dynamic nature of social media makes preservation
difficult
– At least one court has ordered a party to recreate a
Facebook page as it previously existed (Katiroll Co. v. Kati
Roll & Platters)
• Authentication
– Some courts require a showing of authentication such as
searching the individual’s hard drive or seeking
information from the commercial host
– Others are less strict
31. <Presentation Title/Client Name>
31
Social Media
Courts Adapt Traditional Discovery Rules to New Technology
• Collection of data
– Four approaches:
• requiring account holder to produce the information
themselves
• appointing a neutral expert to review and collect the
data
• permitting requesting party access to the social media
account
• third party subpoena to commercial host
– The trend is moving toward requiring the account holder
to review his own account and produce any relevant
information
33. <Presentation Title/Client Name>
33
Cooperation
More Than Just Nice Words
• More than just a lofty ideal; courts are actually taking steps to
foster cooperation.
• The idea is increasingly becoming the subject of pilot
programs, standing orders, proposed rule changes (Rule
37(e)), and other broadly-applicable policies.
• Courts are focusing on the specifics of cooperation—getting
parties to agree on custodians or form of production;
imposing cost-shifting or sanctions when parties do not
cooperate—rather than just issuing generalized calls for
cooperation.
34. <Presentation Title/Client Name>
34
Cooperation
Courts Taking the Initiative
• Pilot programs, standing orders, meet-and-confer
requirements, other policies (District of Delaware default
standards; Nassau County, NY Guidelines)
• “Forcing cooperation”: courts requiring parties to discuss e-
discovery issues, including form of production, and attempt to
seek agreement before coming to court (Northern District of
California checklist)
• More than just Rule 26(f).
35. <Presentation Title/Client Name>
35
Cooperation
Format of Production
• Courts expect parties to agree on the form of production
(metadata, native vs. TIFF files, etc.)
• Courts may set basic production parameters and look to the parties
to work out the rest. Da Silva Moore v. Publicis Groupe, No. 11 Civ.
1279 (ALC) (AJP), 2012 WL 607412, at *22 (S.D.N.Y. Feb. 24, 2012);
Navajo Nation v. United States, No. 06–945L, 2012 WL 5398792, at
*3 (Fed. Cl. Oct. 17, 2012).
• As predictive coding and other forms of technology-assisted review
become more prevalent, courts may increasingly expect parties to
resolve many, if not most, review
protocol-related issues consensually.
36. <Presentation Title/Client Name>
36
Cooperation
The Threat of Sanctions
• Courts do not seem to be sanctioning litigants for failing to cooperate, per
se.
• However, courts have taken such a failure into account when resolving
discovery disputes, commenting negatively on one or both parties’ failure
to cooperate. See, e.g., Vasudevan Software, Inc. v. Microstrategy Inc., No.
11-cv-06637-RS-PSG, 2012 WL 5637611, at *6 (N.D. Cal. Nov. 15, 2012).
• And in at least one case, a party used the other side’s failure to cooperate
as a defense against sanctions. Borwick v. T-Mobile West Corp., No. 11-cv-
01683-LTB-MEH, 2012 WL 3984745 (D. Colo. Sept. 11, 2012).
38. <Presentation Title/Client Name>
38
International E-Discovery
The Cross-Border Conundrum
• Increasingly common need to preserve, collect and review ESI
located in foreign jurisdictions.
• In many non-U.S. jurisdictions data privacy is viewed as a
fundamental right and personal data is afforded greater
protection than we are accustomed to in the U.S.
• U.S. courts, however, usually will not accept the operation of
foreign data privacy law as an “excuse” for failing to produce
relevant information located in a foreign jurisdiction.
39. <Presentation Title/Client Name>
39
International E-Discovery
The Cross-Border Conundrum
• In litigation and investigations, foreign data privacy laws,
“blocking statutes,” and other laws (e.g., China’s state secrets
law) may impact several aspects of the e-discovery life cycle:
– Preservation
– Collection
– Review
– Transfer out of the jurisdiction
– Production
40. <Presentation Title/Client Name>
40
International E-Discovery
Solutions
• Foreign data privacy laws typically apply to “processing” of
“personal data”
• Compliance can often be achieved through taking steps to render
processing “legitimate” under data privacy law.
• Notification to the Data Protection Authority (“DPA”) and Obtaining
Consent of DPA may be necessary.
• The Sedona Conference’s International Principles (Dec. 2011)
provides guidance for a “legitimization plan:”
– Confidentiality Order in U.S. litigation
– Processing, Culling and Review in Foreign Jurisdiction
– Redact Personal Information if Possible
• EU DPAs reacted positively to the International
Principles in 2012.
41. <Presentation Title/Client Name>
4141
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