Wednesday, June 29, 2016

OneOrlando Fund Consults Neutral

Sadly, one of the roles of a modern full-time neutral in dispute resolution practice is administration of vicitm funds. While we are still reeling from recent events from the Pulse massacre here in Orlando, it is heartwarming to see the outpouring of support and generosity from around the globe. To ensure that funds are dispersed in a timely, accountable and transparent manner, the OneOrlando Fund is apparently consulting with victim fund expert Kenneth R. Feinberg. A professional neutral, he served as the Special Master for the September 11th Victim Compensation Fund of 2001, the Claims Administrator for the One Fund Boston, the Virginia Tech Hokie Spirit Memorial Fund, the Aurora Victim Relief Fund and for the BP Oil Spill Claims Administration as the Compensation Fund Administrator. He opines that the immediate issue is whether multiple funds are competing which there seem to be, as well as individual GoFundMe campaigns. He thinks one fund is always the best way to go, allowing payment processing to be coordinated with a common criteria. He says a calculation of compensation cannot be determined until the aggregate amount is known. Interestingly, he most recently weighed in on Deflategate by filing an amicus brief in that appeal as both neutral and new to the dispute. He asserts in his amicus brief that the enforcement of Tom Brady’s suspension would trigger consequences well beyond sports. He contends it would destabilize the system of arbitration in the Unites States and that it would make it harder for himself and others like to him to carry out their duties. While it will be interesting to see how that appeal goes, for the moment, he is helping Orlando deal with the largest mass shooting in the country. See more here-- and interview and One Orlando Fund (Strengthen Orlando, Inc.) information here--

Thursday, June 23, 2016

New ESI Order in Palm Beach 7/1

In Palm Beach County, Florida there is a new discovery of electronically stored information (ESI) order waiting for practitioners in cases involving business torts, professional malpractice, antitrust, business transactions, IP, shareholder derivative actions, securities, or trade secret cases. Circuit Court Judge Meenu Sasser of the 15th Judicial Circuit Court has even mandated that within 20 days of the order, the parties are to schedule a “meet and confer” conference which shall occur within 60 days of service of the Order. It is interesting to note that The Florida Bar Civil Rules Standing Committee voted against a federal rules style mandatory meet and confer when I chaired the effort to amend the rules to include ESI. Counsel for the parties are to discuss whether this cases are to be considered complex litigation case, as in Fla. Rule Civ. Pro. 1.201. Topics for the conference include: ESI custodian information; structure of client computer systems, software, devices, and relevant email information; ESI policies; need for an ESI clawback agreement; costs; and whether ESI issues could significantly protract the litigation. Hmm, looks like a call for effective Special Masters or E-Neutrals... See Standing Order effective for new cases starting July 1, 2016 here--

Saturday, June 18, 2016

Special Master Services Streamline Discovery

Having chaired the effort to amend the Florida Rules of Civil Procedure to include Electronically Stored Information (ESI), I often remind courts, counsel and litigants that neutrals are now an available avenue to resolve electronic discovery disputes. We are prepared to serve as Special Masters (Special Magistrates under the Florida Rules of Civil Procedure) to assist in e-discovery issues in state and federal matters, including: hosting federal Rule 26 “Meet and Confer” sessions; facilitating cost effective, mutually cooperative, and relevant e-discovery programs; procuring Mediated Case Management or Pretrial Stipulations under Florida Rules 1.200 or 1.201; monitoring discovery compliance and outcomes, and adjudicating legal or technical disputes if necessary. In given cases, by agreement, we neutrals can also serve as “e-discovery mediators” or E-Neutrals to conduct negotiated settlement discussions to resolve issues relating to identification, preservation, collection, review, and production of ESI. Early, proactive involvement of an e-discovery special master or mediator educated in the realm of electronic discovery may yield immediate benefits in both the efficiency and economy of litigation, keeping the discovery process on track to producing the best information available for trial or settlement. Our firm just finished a team in camera review of multiple thousands of documents hosted on kCura's Relativity 9 platform for the Complex Business Litigation Division of the Ninth Judicial Circuit Court in Florida, where I once served as a General Magistrate under Chief Judge Belvin Perry. These efforts are cost effective and can save time, as well as aggravation of the judicial officer who will later rule on dispositive motions and preside over the case. See more here--

Wednesday, June 1, 2016

Next Month Rev. Arb. Code Applies Across the Board in FL

Commencing on July 1, 2016, all arbitration agreements, regardless of their date, will be governed by Chapter 682, Fla. Stat. (2013), The Revised Florida Arbitration Code. At present, the statute does not apply to any arbitration that commenced, or any right that accrued, before July 1, 2013. Pursuant to the revised code which is based on the Revised Uniform Arbitration Act (RUAA), it automatically applies to all non-FAA arbitration agreements entered into after July 1, 2013. For now, it can still apply to arbitration agreements made before its effective date of July 1, 2013, if all the parties agree. Otherwise, the law existing at the time of the arbitration agreement applies through June 30, 2016. Revision applicability should be of interest to legal professionals enforcing arbitration provisions common to industries throughout Florida, including: construction, consumer, insurance, employment, securities, and commercial contracts. It is also important to note that Florida’s statutes of limitation (SOL) apply to arbitrations. Florida’s SOL time frames are contained in Chapter 95, Fla. Stat. and apply to any “civil action or proceeding.” Fla. Stat. § 95.011 does not expressly define “action” or “proceeding.” The use of this undefined phrase was the subject of significant debate in securities arbitrations a few years ago. Without reference to Florida’s SOL, securities firms, as well as foreign and domestic companies conducting business in this state, were faced with rewriting their arbitration agreements to provide an express limitations period. Because of the uncertainty associated with the enforceability of such provisions, some may have avoided doing business in this state altogether. The Supreme Court of Florida recently rejected arguments that the legislature did not intend to incorporate arbitrations within its reference to proceedings such that an arbitration proceeding is an “action” broadly defined to encompass any “civil action or proceeding." Arbitration proceedings are utilized in a wide array of contexts and not applying statutes of limitation would permit parties to wait to bring a claim until documents or witnesses are difficult to locate-- a situation that would significantly increase the time, effort, and expense to resolve a dispute. See more in the revised statute here-- and Fla. S. Ct. decision on SOL in arbitration here--