New Federal Rules Amendments Now Effective

Last week, the long-awaited Federal Rules of Civil Procedure amendments became effective without changes to the proposed language by Congress. These rules importantly pertain to discovery of Electronically Stored Information or ESI-- a concept first introduced into the FRCP in 2006. The changes are essentially outlined as follows: Rule 1: The very first rule now specifies that both the court and the parties should interpret the rules to secure just, speedy and inexpensive outcomes. Rule 4: Plaintiffs now have only 90 days to serve a defendant after filing the complaint. Of course, courts may still extend the time for service upon a showing of good cause. Rule 16: Conferences set under this rule are now 90 days after service or 60 days after an appearance by a defendant, whichever is earlier. Rule 26: Scope of discovery substantially changes, requiring that discovery requests be proportional to the needs of the case, as opposed to just reasonably calculated to lead to the discovery of admissible evidence. Courts may now allocate discovery costs. Parties are to discuss preservation of evidence in their discovery plan and may serve document requests before the scheduling conference, having been considered served at the first Rule 26(f) conference. Rule 34: Responses to production requests now must state with specificity the grounds for objecting and whether any responsive materials are being withheld on the basis of that objection. Rule 37: The proverbial Safe Harbor relating to preservation obligations now lessens a court's power to impose sanctions for failure to preserve information, merely allowing ordering so-called curative measures based on a finding that a party is prejudiced from spoliation of evidence. More severe sanctions, such giving an adverse inference or entering default judgment, are permitted under proposed Rule 37(e)(2), but only after finding a party acted with intent to deprive another party of the information’s use in the litigation. Of course, despite a new emphasis on cooperation and proportionality, continuing E-Discovery skirmishes are expected. The use of confidential mediation for the resolution of such disputes by E-Neutrals is encouraged if the parties and counsel cannot settle the entire matter. E-Neutrals are mediators specializing in complex cases involving electronic evidence who can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of risks and perhaps dissuading them from merely using E-Discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. Getting back to the merits is the goal of this process and these new discovery rules. Until there are orders applying these amendments and some new FRDs reported, it remains to be seen how they will impact litigation in the federal courts. See more on this development here-- http://www.bna.com/new-rules-civil-n57982064088/ and https://www.law.cornell.edu/rules/frcp

President as Mediator

This week, American President Obama served as would-be mediator between Russian President Putin and Turkish President Erdogan while all were in Paris. Reuters reported Obama met with Putin on Monday during the COP21 Climate Change Conference there. After the meeting, the White House informed journalists that Obama expressed regret over the death of the Russian pilot, but stressed Russia should de-escalate tensions with Turkey. The Daily Mail wrote that Obama told Putin Russian airstrikes in Syria need to target Daesh militants and not attack rebel groups who oppose Syrian President Assad. Yesterday, Obama met with Erdogan and pledged U.S. commitment to Turkey’s security and sovereignty, according to the AP. Erdogan was also asked to ease the tension with Russia and focus on the campaign against the Daesh. Daesh is apparently an Arabic acronym and the equivalent of Isis or Isil. Obama emphasized the common enemy remains Isil. Of course, Turkey accused Moscow of bombing Syria’s Turkmen region, where no Daesh terrorists exist. Russia claimed its plane was shot down to defend existing oil trade routes between Turkey and Daesh, allegedly taking place on an industrial scale, according to TASS news agency. Erdogan promised to resign if Moscow can prove its claim, but stressed that Putin must be the one to resign if he is lying. Though news headlines touted Obama as mediator between Russia and Turkey, he is not truly a neutral, as America actually leads the anti-Daesh coalition. Similarly, the U.K. Independent reported U.S. officials are pressuring the Turkish government to enforce its Northern Syrian border, still used as a smuggling route by the terrorists. On the humanitarian front, Russian airstrike campaigns in Syria have caused many civilian casualties, killing some three hundred non-combatants. No apologies were made and the situation still seems unsettled. It's hard to be a neutral facilitator when you have a stake in the outcome... See more here-- http://bit.ly/1Pvrr0v and http://ind.pn/1NHulPp

NFL Concussion Settlement Oral Argument

Just before the start of the regular season in 2013, thousands of former players first settled with the National Football League (NFL) over concussion-related suits. The league agreed to pay for medical benefits and injury compensation to retired players, as well as to fund medical exams, research and to pay litigation expenses. The lawsuits accused the league of hiding known risks of concussions and returning injured players to games. After that first deal was rejected by the trial court, a second deal doing away with a cap on the fund from which injured former players would draw was reached. Reportedly, the second settlement approved earlier this year could payout more than $1 billion. The lower court, however, kept out a class of players who had argued that they should benefit from the settlement because in the future they may develop the disease chronic traumatic encephalopathy (CTE). Failure to compensate players with CTE is the primary objection to the previously approved deal which only compensates for CTE if the player has died. Several players appealed to the United States Court of Appeals for the Third Circuit. Currently, CTE can be detected only by an autopsy of the brain, and the families of several former players who died and were found to have the condition stand to receive up to $4 million. Those awards apply only to players found before the settlement was approved last April. Apparently, appellate judges appeared skeptical during oral argument last week, noting that those conditions were widely prevalent in the general population and that players who developed the conditions would not necessarily have CTE. One judge on the panel even remarked that the settlement could be watered down by every depressed field-goal kicker. The case faced significant legal hurdles at the start that could have landed the case in arbitration instead of federal court. At the outset, the district judge signaled a preference for settlement of the case, believing that the interests of all parties would be best served by a negotiated resolution. The settlement was characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners claim they wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The appeals court noted that the settlement included a provision that obligates lawyers for the league and the retired players to have good-faith negotiations in the coming years to consider future science and other issues. The appellants’ lawyers argued that was inadequate because the NFL maintains veto power over any settlement amendments. See more here-- http://nyti.ms/1MYEIHZ

Water Wars

A settlement in an ongoing 25-year water war between Florida and Georgia has not yet been attained, but a move towards compromise was just announced. Special master, Ralph Lancaster, who was previously appointed by the U.S. Supreme Court to help resolve the dispute, said he was delighted to see both the word ‘settlement’ and the word ‘mediator’ in recent status reports, indicating a move to the formal ADR process of mediation. Lancaster already urged attorneys for each state to settle the water wars case amongst themselves, rather than risk an unsatisfactory outcome for all involved. Georgia's Governor set aside $20 million for the latest legal battle pitting Florida’s ailing oyster industry against Georgia’s right to use Chattahoochee River water across metro Atlanta. Florida states that Georgia’s overconsumption of water in the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier, is creating economic hardship, particularly on the oyster industry in the Florida Panhandle region's Apalachicola Bay. Georgia also seeks to maintain full use of the Flint River and its tributaries for farmers in southwest Georgia. The rivers join at the Florida border, becoming the Apalachicola River. Crucial to Florida's seafood folks is a fresh water-salt water balance for oysters to survive in the Apalachicola Bay. While there's been no material progress on a global settlement since last summer, Georgia now reportedly believes the best way to advance the process is "to engage a mediator acceptable to both sides who can create a framework for formal in-person discussions and periodic exchanges of information specifically directed to settlement.” Florida apparently welcomed the suggestion, along with the special master. See news stories here-- http://on-ajc.com/1NcbBY7 and http://bit.ly/213eZsn

National Love Your Lawyer Day

What do you call 1,000 lawyers at the bottom of...you know the jokes. But joking aside, it's love your lawyer day. Apparently, the idea was first hatched in 2001 by the American Lawyer Public Image Association, a non-profit organization dedicated to promoting the positive public image of lawyers. This is the first year it's been recognized by the American Bar Association's Law Practice Division, which passed a recent resolution to observe the first Friday of each November going forward. I've read some of the press this week covering this day and have seen mostly disdain for the occasion. Lawyers obviously play a prominent role in American cultural life and, heroes aside, their ethical behavior is sometimes reflected poorly in pop culture, television and movies. In reality, lawyers have been some of the most productive members of our society and have had great impact on our American experiment. In regard to the Framers of the Constitution, more than half of the delegates were trained as lawyers. I would venture to say that the importance of lawyers in society cannot be overemphasized. Alexis d’Tocqueville long ago observed in his commentary on law in the United States, that there are few political questions that that do not become, sooner or later, a judicial question. Lawyers in an adversarial system are agents of order in a society that may not otherwise exist without them. Contributions of lawyers are widely unheralded, especially in pro bono work that almost no other profession takes upon itself to deliver. Of course, it has been said that lawyers perform a critical role in the administration of the rule of law under the requirements of justice, namely fair outcomes arrived at through fair procedures. Settling cases within the legal system remains the best way of avoiding conflict among citizens. I just wish the emphasis of this day of recognition had been more on that. See summary of news coverage here-- http://bit.ly/1iHIca4 and ABA resolution here-- https://www.americanbar.org/content/dam/aba/images/abanews/LoveYourLawyerDay.pdf

Cyber Week 2015

It's Cyber Week again! This program focuses on trends in the emerging field of "ODR" or online dispute resolution. Anyone can attend this interesting virtual conference on the future of alternative dispute resolution which is sure to be filled with a wealth of webinars, discussion forums and activities. A content rich website, hosted by the ADRhub-Werner Institute at the Creighton University School of Law in Omaha, contains a variety of webinars discussing the integration of technology and dispute resolution. The link below provides access to registration links for the online educational activities this year. Event organizers encourage visitors to review the entire program to ensure not missing a topic that will meet interests of practitioners considering using technology in dispute resolution processes. Some highlights from the program include presentations entitled: Video Mediation, Power of the e-Apology, and a mobile app demonstration by the developer of Picture It Settled, about which I've blogged before. It seems the topics this year are more domestic focused, as international mediators were more interested in this form of mediation at this juncture last year. Curtailing travel costs can be incentive enough to mediate online, but the efficiency of the software in being able to access negotiations at the user’s convenience seems to be the main feature touted in this modern method of settling lawsuits. Amounts in controversy will likely drive the ODR process to lower value cases with a shorter average duration. Efforts in this area have been around for more than a decade, but I'm still not sure ODR is ready for prime time in larger cases where a human element in decision-making is often intangible without parties participating in person. See more here-- http://www.adrhub.com/page/cyberweek-2015

Joint Sessions and the Use of E-Neutrals in ESI Disputes

I am honored to have been featured in the American Bar Association's Dispute Resolution Section's Just Resolutions eNews during this year’s ABA Mediation Week. The theme was “Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future.” In looking at where we’ve been and what is to come in civil litigation, one can find a confluence in the growth of electronic information and the need for cooperation in gathering such evidence that it necessarily creates. Electronic Discovery is everywhere. Corporations and small businesses alike utilize computer systems to cut costs, improve production, enhance communication, store data and improve capabilities in this world of constant technological development. The prevalence of electronically stored information or ESI and its associated impact on litigation are readily apparent. E-Discovery has become vital to most cases. Virtually all business information and much private party information can be found only in ESI. At the same time, the costs of collecting, reviewing, and producing ESI reportedly have reached proportions that rival the amount in controversy, itself. This piece considers the role of the E-neutral who can facilitate the electronic discovery process in complex cases by helping parties to agree on key issues while together in joint session, enabling them to focus on the merits of their case. See article here-- http://www.americanbar.org/content/dam/aba/uncategorized/dispute_resolution/just-resolutions/kolin_joint_sessions.authcheckdam.pdf