Apple and Samsung CEOs to mediate Patents

CEOs of Apple and Samsung are set to mediate at a San Francisco federal courthouse tomorrow in the U.S. Northern District of California case of Apple, Inc. v. Samsung Electronics Co., Ltd. The U.S. Court of Appeals for the Federal Circuit found last Monday that the district court erred in deciding that Apple failed to show that it was likely to succeed on the merits, which means Apple may yet press for an injunction to block the sale of Samsung tablets. While the trial court considers the claims, Apple's Tim Cook and Samsung's Choi Gee-sung have been directed by a federal judge to appear for a court-supervised mediation. Apple and Samsung are bitter rivals in the electronics marketplace. While Samsung's smartphones and tablets run Android and compete with Apple's iOS products, Samsung is also a key component supplier to Apple. Apple has accused Samsung of infringing on the iPhone and iPad through products that run on Google's operating system, and Samsung has counter-sued on claims that Apple infringed its patents. The case is set for trial this summer. Magistrate Judge Joseph Spero will preside over the high-stakes IP mediation. I blogged about this case last fall, when Steve Jobs died. I still believe that a face to face meeting of the ultimate decision makers can benefit these companies and allow them to move on together in the mobile marketplace. See articles - http://trib.in/K7ETUJ and http://reut.rs/JBQJ8N

Moses or Solomon?

A federal judge ordered mediation with a magistrate judge in a lawsuit about whether the Ten Commandments can be displayed at a Virginia high school. U.S. District Judge Urbanski of Roanoke ordered the school board and the unnamed student and parent into mediation to see if a compromise can be reached over the biblical display. It's been reported that the judge suggested a deal could be made where the first four of the Ten Commandments are left off the display. This is unusual in cases of this type, which are typically all or nothing. For instance, in a pending Florida case, the Eleventh Circuit Court of Appeals recently heard arguments regarding Dixie County's Ten Commandments, where litigants are fighting over whether or not a six-ton model of the Ten Commandments in front of the county courthouse is unconstitutional and whether an anonymous plaintiff has standing in that matter. In the VA case, the judge issued a protective order allowing the parent and student involved in the case to remain anonymous during the suit which apparently came to fruition by a mutual agreement due to the threat of hostility by the community. The case involves a four-foot tall display of the Ten Commandments first hung on school walls following the Columbine school shooting in 1999. The display was taken down over a decade later by school officials, after receiving complaints, and replaced with a copy of the Declaration of Independence. In 2011, the Ten Commandments display was replaced following a backlash from parents and pastors. The display was then removed again after a month by school officials for no stated reason, prompting students to walk out of classrooms in protest. Will the tablets be split down to six, remain at ten or will there be none at all? See stories http://bit.ly/IYrWcx and http://bit.ly/JlIsaa

Megaupload Mediation

Controversial file-sharing services called cyber-lockers allow users to upload files to a server, which provides remote and secure storage of user content. Megaupload's users share their files with others and are encouraged to contribute content, which is often copyrighted. Services like this offer free limited access and further unrestricted use for a fee. U.S. District Judge Liam O'Grady recently directed lawyers from both sides of an Eastern District of Virginia case involving data which has been managed by service provider Carpathia Hosting since Megaupload was dismantled by authorities earlier this year to engage in mediation sessions in order to resolve the matter of archiving or deleting the information which had been stored by Megaupload users. The ruling temporarily preserves the infringing data which Carpathia claims it has had to spend as much as near $10K per day to maintain. Because the site went dark and Megaupload is no longer paying for server upkeep, but files are potential evidence of pirating, the hosting company wants relief while millions of legitimate users worldwide still want access to their data. In ancillary proceedings in New Zealand, Kim "Dotcom" Schmitz, the founder of controversial website, has been awarded back some of his previously confiscated fortune after it was revealed that a search warrant obtained by authorities was illegal. He and a number of the company's executives face extradition to America for trial. The issue of mediating litigation holds and preservation of evidence and related costs is a hot one in terms of ESI. This case brings to mind some recent entries of mine on E-Discovery mediation, as well as cost shifting and judge-directed ADR. It will be interesting to see if the rights of third-parties are respected in the process. See recent news items here: http://bit.ly/IAWczE and http://bit.ly/JaIn4E and http://bit.ly/Js8KG1

Orlando Mediator blog now an official ABA "blawg"

Just a brief post to announce that the American Bar Association has officially listed this blog as one of its law blogs or "blawgs." The ABA's Blawg Directory is promoted by the distinguished ABA Journal online and is touted as a comprehensive directory of continually updated law blogs. Help this blawg reach the "Blawg 100," an annual listing of the top one hundred blawgs in the law, now in its fifth year. Details will be posted when voting opens this year and the hope is that this blog will be the first devoted to mediation to make the list. Thanks for your readership and continued support of this endeavor which is a labor of love published in the interest of expanding the use of mediation and alternative dispute resolution in the 21st century. My mediation practice began in 2001 and continues to push the envelope in creative use of ADR. As an example, recent topics include the use of early ESI mediation to avoid protracted E-Discovery battles, allowing parties in litigation to re-focus their cases on the merits. I look forward to continuing exploring new topics on this blawg as trends develop to keep professional neutrals and advocates alike abreast of the latest in this field. Orlando Mediator can now be found as this URL on ABA: http://www.abajournal.com/blawg/Orlando_Mediator

Neutrals may ease anxiety over Florida’s new E-discovery rules

This podcast featuring my commentary just in from an interview with the Association of Certified E-Discovery Specialists (ACEDS) Editorial Director, Robert Hilson: On March 7, the Florida Supreme Court heard argument on proposed E-discovery rules for state cases, the first such rules for the fourth largest state. The court has put them on fast track, and could approve them by the end of the year. The rules will affect the state’s diverse legal and corporate community and its 63,000 active attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to e-discovery. Neutral third parties, such as special masters, mediators and referees, may be able to assist in these instances. These so-called “neutrals” can shape discovery plans, allocate costs and suggest and create efficiencies that did not exist. Their services are not limited to grappling with old or new rules, or to discovery disputes. Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar committee that helped craft the e-discovery rules the Supreme Court is considering. In this ACEDS podcast, he tells how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. “I try to focus parties on the merits and try to get them off using e-discovery as a sword or shield,” says Kolin. “Mediation is an avenue that can present parties with significant cost-savings if performed early enough in the litigation.” Podcast introduction: http://aceds.org/aceds-ediscovery-mediation-podcast-with-lawrence-kolin Listen to .mp3 here: http://aceds.org/sites/default/files/ACEDS%20Mediation%20Podcast%20with%20Neutral%20Lawrence%20Kolin.mp3

Appellate Mediation Frustration

Florida led the way in the establishment of alternative dispute resolution procedures to accommodate resolution without trials or the use of the judiciary. In the late 1980s, Florida passed comprehensive court-annexed mediation statutes and the past quarter century has seen enormous growth in the use of mediation as a practical, efficient alternative to traditional litigation for conflict resolution. In addition to the retention of self-determination and capability for creative settlements-- not to mention decreased costs-- courts celebrate reduced dockets, as well as increased levels of satisfaction. As such, appellate courts got into the game, initially with the U.S. Eleventh Circuit Court of Appeals, and then a pilot program by Florida's Fifth District Court of Appeal (DCA) over a decade ago. There was also a program at the First DCA which was dismantled for budgetary reasons and other programs that have since gone. However, recent Florida Rules of Appellate Procedure (found beginning at 9.700) now provide the parties with the option to mediate if not already referred to mediation by the appellate court. These procedures account for tolling and other deadlines and deal with appearance and authority of parties at mediation. Today, at the Orange County Bar Association, we had the privilege of listening to Judge Thomas Sculco, Barbara Eagan and Stacy Ford for a CME on the frustration the process can bring about. Though the success rates are still around 35% for cases settling through mediation after a notice of appeal is filed, there are more challenges to the process given the posture post-trial than in cases that have not yet tried. Appellees are difficult to motivate, but there are some tools appellate mediators can use to move the parties' positions beyond discussions involving splits of authority and the proverbial "careful what you wish for" new trial. A hallmark to successful appellate mediation can be as simple as the ability of the parties to avoid precedent and craft a solution to the conflict that is built around their unique interests and needs. With the advent of Certification of Appellate Mediators by the Supreme Court of Florida, more mediation in the DCAs should be taking place. However, it is up to practitioners and dispute resolvers to educate the judiciary and promote the process beyond courts that have traditionally recognized its benefits.

E-Neutrals and FL ESI rules

I spent the last couple of days at the national annual conference of the Association of Certified E-Discovery Specialists (ACEDS). There were many vendors, attorneys and even court personnel attending. Of particular interest, was a pilot program developed by Clerk of the U.S. District Court for the Western District of Pennsylvania, Robert Barth. That court has identified special masters and E-neutrals as fulfilling the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (ESI) during the litigation process. The parties in those cases reportedly benefit from the appointment of Electronic Discovery Special Masters (EDSMs) in appropriate cases. Any findings of fact or conclusions of law reached by the EDSM will be presented to the court as a report and recommendation, to which the parties have the opportunity to object, prior to a de novo review by the court (see details at - http://www.pawd.uscourts.gov/Pages/ediscovorey.htm). Florida's draft rules do include a case management topic of optional appointment of special magistrates in the event such issues need to be referred. This was discussed during an ACEDS panel I served on with my successor on the Florida Civil Rules Committee, Kevin Johnson. We also spoke on the likelihood of a decision from the Supreme Court of Florida concerning the proposed amendments to the Florida Rules of Civil Procedure and any time frame for implementation. Given the largely friendly reception during oral argument, it appears adoption of the language is imminent, but the forthcoming opinion could delay the effective date of the rules, given the Court's concern for educating the bench and bar.