Monday, January 25, 2010

Association of Corporate Counsel Article on Ethics and E-Discovery

The ACC Docket, the publication of the Association of Corporate Counsel, has recently published an article entitled "Ethics and Ediscovery Review." Here is the introductory paragraph from the piece:

A recent study published by the Ediscovery Institute based on a survey of leading ediscovery providers (Deduping Survey) shows that, despite the technical ability to suppress or consolidate duplicates within an electronic document population, chances are about 50:50 that your outside counsel fails to take advantage of this technology, opting instead to doublebill for reviewing unnecessary duplicates for privilege, confidentiality and relevance. The study shows that, on average, law firms that do not consolidate duplicates across custodians are reviewing 27 percent more records than needed, and in some cases 60 percent or more, raising serious ethical issues involving conflicts of interest and technical competency.

Interested readers can download the full article by clicking here.

Wednesday, January 13, 2010

Second Circuit Issues Rule 11 Ruling; Discusses Authority of Magistrate Judges to Impose Sanctions

Per Kiobel v. Millson, --- F.3d ----, 2010 WL 46785 (2d Cir. Jan. 8, 2010):

Appeal from an order of the United States District Court for the Southern District of New York (Kimba M. Wood, Chief Judge ) sanctioning appellants pursuant to Rule 11 of the Federal Rules of Civil Procedure for making factual representations that lacked evidentiary support. Under our precedents, a statement of fact can give rise to the imposition of Rule 11 sanctions only when the particular allegation is utterly lacking in support. Based on our review of the record, we conclude as a matter of law that none of the statements identified by the District Court meet this standard, and we therefore reverse the order of the District Court imposing Rule 11 sanctions on appellants.

Each member goes on to write separately to opine on the question of a magistrate's authority to issue Rule 11 sanctions in an effort to give some guidance to district courts within the Second Circuit. Unfortunately, none could agree and the issue is left unresolved.

Tuesday, January 12, 2010

Prof. Spencer Posts Article on Iqbal on SSRN

Professor A. Benjamin Spencer (W&L) has just posted an Article entitled Iqbal and the Slide Toward Restrictive Procedure on SSRN. Here is the Abstract:

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.

The full text version of the Article may be downloaded at