Catagory:Market Announcements

The U.S. Courts’ website (www.uscourts.gov) has the following alert:

Reports have been received of bogus e-mail grand jury subpoenas, purportedly sent by a United States District Court.  The e-mails are not a valid communication from a federal court and may contain harmful links.  Recipients are warned not to open any links or download any information relating to this e-mail notice.  The federal Judiciary’s email address is uscourts.gov.  The e-mails in question appear to be sent from a similar address that is not owned and operated by the federal courts.  Law enforcement authorities have been notified.

More information about the e-mail scam may be found in this New Jersey Law Journal article by Mary Pat Gallagher, "Businesses Hit With E-Mail Blast of Virus-Carrying Pseudo-Subpoenas," an excerpt from which follows:

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By K&L Gates partner David R. Cohen

This article appears in the March 2008 edition of BizTech Magazine, and begins:

If you’re not currently involved in litigation or an investigation and won’t be in the future, then e-discovery isn’t something your business needs to concern itself with.  The rub is that it’s often impossible to predict whether your business will be involved in a lawsuit or investigatory action.

Fortunately, the recent amendments to the Federal Rules of Civil Procedure do not impose any requirements on companies outside of the litigation process.  And because small and midsize businesses are less likely to be involved in litigation, they are at less risk.  However, if your business and IT departments aren’t prepared and you suddenly find yourself involved in a lawsuit, it may be too late to take the appropriate action.  Here are three best-practice steps that IT departments should keep in mind with regard to e-discovery and electronically stored information . . .

View the full article online, or as a .pdf here. 

On March 5, 2008, District Judge Rudi M. Brewster issued his Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/7/08.  (View a copy of the decision from Westlaw here.)  The order vacated and remanded that portion of the January 7 Sanctions Order imposing sanctions against Qualcomm’s six outside counsel.  In doing so, the District Judge instructed that, in any future hearing held by the Magistrate Judge, the attorneys would be allowed to defend their conduct by any and all means, and would not be prevented from doing so by the attorney-client privilege of Qualcomm.  The court further instructed that Qualcomm be permitted, but not required, to participate without any exposure to further sanctions.

In reaching its decision to allow the attorneys to defend themselves fully, the court concluded that the self-defense exception to the attorney-client privilege was applicable.  It found that the employee declarations Qualcomm’s submitted in October in response to the Order to Show Cause Why Sanctions Should not be Imposed were "exonerative of Qualcomm and critical of the services and advice of their retained counsel."   The court continued:  

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Appearing in this week’s Legal Times, an article by K&L Gates partner Thomas J. Smith entitled:  Now Watch the Lawyers Blitz — The NFL destroyed the tapes.  But it still hasn’t escaped the sack. (Free registration required to view.)

In the game of football, the greatest quarterbacks share some common traits.  Perhaps chief among them is an uncanny ability to anticipate the blitz.  Sensing the onrush of defenders, the savvy quarterback will sometimes throw the ball away to avoid a loss of yardage.

When legal counsel anticipate a blitz, in the form of a lawsuit or an investigation, “throwing the ball away” is not an option.  To the contrary, the destruction of potential evidence may constitute the improper act of spoliation.

Now football fans, including one U.S. senator, are asking whether the National Football League has done exactly that.  Did the NFL destroy evidence of cheating by the New England Patriots to avoid a bigger blitz on the game?

On Super Bowl Sunday, Feb. 3, the Patriots nearly completed only the second perfect season in NFL history, losing by three points to the New York Giants.  The Patriots’ season also had a less-than-perfect beginning, when the team was caught violating league rules by videotaping the New York Jets’ calling of defensive plays in a scandal dubbed “Spygate.”

The NFL demanded, and reportedly obtained, all tapes the Patriots still had of other teams’ defensive signals, including any that may have been made over the last seven years, during which time the Patriots won three Super Bowls.  The league required the team to “certify” that it had produced all such tapes and retained no copies.  After receiving the tapes and other materials, the NFL reviewed and then destroyed them, thereby eliminating the opportunity for any third party to examine the extent to which the tapes may have helped the Patriots to win games.

Read a copy of the full article here, reprinted with permission from Legal Times.

In its Reply to Broadcom Corporation’s Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge filed on February 20, 2008, Qualcomm states that it acccepts the sanctions imposed by Magistrate Judge Barbara Lynn Major and is not appealing or filing any objections to the January 7, 2008 Sanctions Order.  Qualcomm further advises that it has now paid to Broadcom the full $8,568,633.24 monetary sanction ordered by the Magistrate Judge, and notes that it is participating in good faith in the CREDO program.

Qualcomm goes on to point out that Broadcom never requested that sanctions be imposed on the individual outside counsel who had formerly represented Qualcomm in the litigation.  “Accordingly, Broadcom has no basis for (a) complaining about Qualcomm’s compliance with the Sanctions Order since Qualcomm has in good faith done everything ordered by the Magistrate Judge; or (b) ‘responding’ to any objections to the Sanctions Order since those objections were filed only by the individual attorneys – not Qualcomm – and Broadcom did not even seek sanctions against the individual attorneys.”  Qualcomm rejected Broadcom’s suggestion that the district court might refer certain issues back to the Magistrate Judge so that she could consider additional sanctions against Qualcomm.  It stated that there had been no suggestion that the Magistrate Judge lacked authority to issue sanctions against Qualcomm, and now that Qualcomm had complied fully with the Sanctions Order, and had not objected to or appealed the sanctions, there is simply no need to re-open it.
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We are pleased to announce that we have enhanced our searchable e-discovery case database and have added a number of new attributes – several of which correspond with the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  For example, you can now select the attribute “FRCP 37(e) Safe Harbor,” click “Search,” and view a list of cases that have cited or discussed the new “Safe Harbor” rule.  Other new attributes that we have added include:

• FRCP 26(b)(2)(B) “Not Reasonably Accessible”
• FCRP 34(b) Procedure or Format
• FRCP 26(b)(2)(C) Limitations
• FRCP 26(b)(5)(B) or Proposed FRE 502
• Early Conference or Discovery Plan
• Local Court Rule, Form or Guideline
• Motion for Preservation Order 

What’s more, the database now contains over 900 e-discovery cases from state and federal jurisdictions, with new cases being added every week.  Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country.

The database is still searchable by keyword, or by any combination of 28 different case attributes.  Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.

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The Virginia Supreme Court’s Advisory Committee on Rules of Court has unanimously concluded that it should publish a Tentative Draft of possible rules amendments on the topic of electronic discovery.  The Tentative Draft takes into account the detailed comments on an initial discussion draft circulated several months ago.  It is the Advisory Committee’s plan to consider these draft rules at its April, 2008 meeting and to discuss all comments and suggestions received concerning the structure and content of the proposed provisions.

If approved by the Advisory Committee, the rules proposals would be recommended to the Judicial Council of Virginia and the Supreme Court, which will decide whether the rules should be approved and promulgated as Rules of Court.

Comments on the Tentative Draft should be sent by March 15, 2008 to:

Karl R. Hade, Executive Secretary
Supreme Court of Virginia
00 North Ninth Street
Richmond, VA 23219