- The discoverability of social media
- The preservation duty as it applies to this data
- Methods of and limitations of discovery of social media
- Overview of technical tools that assist with the preservation and collection of social media
The Seventh Circuit Electronic Discovery Pilot Program is sponsoring a free e-discovery webinar on April 6, 2011 from noon until 1:30 pm CDT. This is the next in a series of e-discovery seminars sponsored by the local federal courts which have been excellent so far. Participation is limited to 1,500. So, sign up early — click here to register. Attendance for the past events has been impressive. 1.5 hours of MCLE credit have been applied for in Illinois, Indiana and Wisconsin.
Here are the details of the webinar from the Northern District’s inviation:
What Everyone Should Know About the Mechanics of E-Discovery
April 6, 2011 – Noon – 1:30 p.m. (CDT)
Understanding the mechanics of electronic discovery is essential to your effectiveness in litigation and to fulfill your responsibility to your clients. The Seventh Circuit Electronic Discovery Pilot Program, together with Merrill Corporation, has developed a program designed to assist you in mastering the e-discovery challenges of today’s litigation and to help you manage the preservation, retrieval and production of ESI through the e-discovery process. You will gain information including:
- A basic understanding of the terminology unique to the realm of e-discovery.
- The meaning of preservation and how to achieve this crucial obligation in an evolving technological landscape.
- How to assess and manage the challenges of an e-discovery project.
- A foundational understanding to help you identify potential e-discovery pitfalls and potential problems.
The Seventh Circuit’s Electronic Discovery Committee is offering what appears to be an excellent CLE program, with one hour of Illinois credit, discussing when and how lawyers should communicate with their clients about e-discovery issues. Click here to register for the April 28, 2010 noon CT webinar. Here is the Committee’s description of the program:
“You and Your Clients: Communicating About E-Discovery, How to Talk to Your Clients about E-Discovery and the Application of the Seventh Circuit E-Discovery Principles” should not be missed. It will provide an in-depth discussion regarding the following topics:
- When should communications regarding ESI begin with your client;
- What are the categories of discoverable ESI you need to discuss;
- How do you help your client assess where discoverable ESI might be stored;
- What steps should be taken to preserve relevant ESI;
- When (and if) backup tapes should be considered an ESI source that needs to be preserved/disclosed/produced;
- How vendors can be used effectively in the collection/processing/production of ESI;
- Practical approaches for the production of ESI; and
- When to use and how to select an electronic discovery liaison.
Wednesday, February 17, 2010 at noon central, Law.com is hosting an in-depth webinar discussion of the Seventh Circuit’s new Principles Relating to the Discovery of Electronically Stored Information – click here for registration information. The Principles are designed to streamline discovery and resolve e-discovery disputes by, among other things, incentivizing early and informal information exchange on common issues. The Principles also identify formats of e-discovery that are generally not required to be preserved in order to reduce fights and costs. For more on the Principles, click here. In October 2009, the Seventh Circuit initiated Phase One of its E-Discovery Pilot Program across the Seventh Circuit’s district courts, with a special emphasis on the Northern District of Illinois. In Phase One, the Principles are being applied to 80 selected cases during Phase One.
The panelists for the webinar include:
- Chief Judge Holderman;
- Magistrate Judge Nolan;
- Thomas Lidbury, Mayer Brown; and
- Alexandra Buck, Senior Counsel and Director of E-Discovery and Records Management at Abbott Laboratories.
Gabbanelli Accordions & Imports, L.L.C. v. Italo-Am. Accordion Mfg. Co., No. 02 C 4048, Slip. Op. (N.D. Ill. Sept. 21, 2009) (Zagel, J.).
Judge Zagel entered judgment on behalf of plaintiffs in the amount of $151,200 in lost profits after the Seventh Circuit affirmed the Court’s judgment.* The Court also held defendants jointly and severally liable for $147,576.12 in plaintiff’s attorneys’ fees.
* Click here for more on this case in the Blog’s archives.
Schrock v. Learning Curve Int’l, No. 08-1296, 2009 WL 3644331(7th Cir. Nov. 5, 2009).
The Seventh Circuit reversed and remanded Judge Shadur’s decision in this copyright case.* The Court held that plaintiff’s photographs of defendant’s Thomas the Tank Engine trains were derivative works, and that absent a contractual provision to the contrary, plaintiff had a copyright in the derivative work. Because plaintiff had permission to create the derivate works, plaintiff had a copyright in his derivative works. And the Court could not decide whether the agreements prevented plaintiff from getting a copyright in the derivative work because the agreements were not part of the appellate record. Additionally, the Court pointed out that the requirement that a derivative work be "substantially different" from the original did not create a heightened originality standard for derivative works. The Court noted that plaintiff’s photographs of defendant’s Thomas the Tank engines had sufficient originality.
* Click here for more about this case in the Blog’s archives.
Click here for the Seventh Circuit’s new proposed pattern trademark jury instructions.* The committee that prepared the instructions included Northern District of Illinois Judges Kendall and Kennelly, as well as a broad spectrum of attorneys from academic, government and private practice.
The pattern instructions are impressive for their thoroughness. They are also very well cited, making them an excellent primer on Seventh Circuit trademark law. Of particular note, the instructions do not include a dilution instruction because since Congress’s 2006 revision of the dilution laws, there has not been sufficient appellate interpretation.
* The jury instructions are not yet in final form.
The Seventh Circuit’s Judge Posner has weighed in on the newspaper crisis at his Becker-Posner Blog suggesting that a fix to the news revenue issue might be to change copyright laws to prevent linking to or summarizing news content (click here to read the post):
Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
I see the problem and the danger to society in losing newspapers and their reporters, but it seems unworkable to prevent linking. Perhaps a system could be implemented requiring sites that link to a news story or to registered and copyrighted material to pay a small fee for each click through from their site. It could be similar to and even administered by the Copyright Clearance Center which currently offers licenses that grant rights to incidental copying of the copyrighted content of member organizations.
Additionally, preventing summarizing of factual news stories would be exceptionally difficult to implement. But the newspapers can prevent direct copying of the text of articles from their sites and can always require subscriptions or passwords to get to their content.
But while I am not sure that these suggestions are workable, there is little doubt that newspapers in particular need new avenues to monetize their content in order to maintain economically viable. And as someone who has three papers delivered to his door daily, I fully support protecting the print news media.
At the request of Federal Circuit Chief Judge Michel, an all-star panel was established to create a comprehensive set of model patent jury instructions — click here to download them. The panel included patent litigation heavy weights like Don Dunner and federal judges — Judges Ward (E.D. Texas) and Whyte (N.D. Cal.). The Federal Circuit has not officially endorsed the jury instructions, but they are very comprehensive and deal with just about every recent case law development. In particular, they provide an excellent glossary of patent terms for the jury (something that should be in every set of patent jury instructions, but often is not) and they provide two KSR obviousness instructions, one for if the jury is making the final determination and one if the judge does (the panel could not come to a consensus on what the correct reading of the law was).
The one instruction I had hoped to see that was missing was an instruction for awarding royalties on post-verdict sales — see the MTTLR Blog on the issue here or read commentary on Judge Clark’s plan to submit post-verdict damages to the jury here at Michael Smith’s E.D. Texas blog. If anyone has seen an instruction for post-verdict damages, send it to me and I will post it for all to consider.
You can also read more about patent jury instructions in the Blog’s archives — click here for the Seventh Circuit’s model patent jury instructions and here for a list of jury instructions Northern District judges have offered as precedent in IP cases.
Anne Reed has an excellent post at her Deliberations blog about improving the voir dire system based upon Judge Mize’s and Center for Jury Studies director Paula Hannaford-Agor’s new paper, Building a Better Voir Dire – click here to read the post and for a link to a pdf of the article, which is also worth the read. Reed’s post and the article fit well with my recent series of posts on the Seventh Circuit’s American Jury Project report — to read those posts and for a copy of the report, click here (juror questions); here (preliminary jury instructions); here (12 person juries); here (interim statements by counsel)and here (Phase I principles).
Reed nails a huge problem with improving voir dire specifically or the trial process generally — judges and lawyers have different interests. Judges who do lots of trials while facing bulging dockets and populations with little interest in appearing for jury duty often want trials over quickly and efficiently using the smallest jury pool possible. Lawyers want to know as much as possible about as large a pool of jurors as possible. Of course, the more in-depth the voir dire process, the more time it takes. And the process of testing new ideas and improving upon voir dire, or any part of the trial process, also takes time up front, even if it saves time in the long term. But Reed, Mize and Hannaford-Agor identify two resources that help limit the upfront costs for judges — the American Jury Project and the NCSC’s State-of-the-States Survey. Both are incredible resources for judges that want to try new approaches to better serve all trial stakeholders.
Most of all though, it is exhilirating to see important groups like the NCSC and the Seventh Circuit massing their resources to evaluate and improve the trial process. I look forward to covering more efforts like these and to continuing the discussion about how to best try cases in our courts.
I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the four Principles studied in Phase Two,* this post looks at the additional three Principles considered only during Phase One: juror questionnaires, deliberation guidance, and trial limits.
The Phase One study showed strong value in having potential jurors answer questionnaires prepared by the court and counsel before voir dire. It streamlined the voir dire process, preserving judicial resources and benefiting jurors who are not comfortable with public speaking. The Commission recommended using questionnaires. For much more on questionnaires and a great library of them, check out Anne Reed’s Deliberations blog – click here for Reed’s questionnaire library.
The Phase One analysis of adding deliberation guidance instructions was inconclusive. Judges in sixteen trials used the following instructions regarding picking a foreperson and deliberating:
A. Jury Instruction on the Role of the Presiding Juror:
You are free to deliberate in any way you decide or to select whomever you like as a foreperson. However, I am going to provide some general suggestions on the process to help you get started. When thinking about who should be foreperson, you may want to consider the role that the foreperson usually plays. The foreperson serving as the chairperson during the deliberations should ensure a complete discussion by all jurors who desire to speak before any vote. Each juror should have an opportunity to be heard on every issue and should be encouraged to participate. The foreperson should help facilitate the discussion and make sure everyone has a chance to say what they want to say.
I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries.
In seventeen trials, counsel were allowed to make interim statements before or after witness testimony and at the end or beginning of each week, as follows:
- Counsel could make interim statements before or after their questioning of a witness, on either direct or cross;
- The statements were given outside the presence of fact witnesses;
- Counsel could object having interim statements just as in an opening or closing, but could not respond to them, to avoid excessive contentiousness;Advance notice of interim statements was not required;
- Counsel’s statements for a trial were time-limited at the start of trial; and
- Counsel were given ten minutes at the end and beginning of each trial week to summarize old testimony or preview the coming testimony.
I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries – click here for a previous post regarding juror questions and click here for a previous post regarding preliminary jury instructions.
Twelve person juries had the least conclusive results of the four Phase Two Principles. Mathematical modeling and other data suggested that twelve person juries would increase jury diversity and, therefore, presumably fairness. Fifty trials used twelve person juries. 50% of the judges in the trials believed the larger panels resulted in increased diversity, but only 39% of the trial attorneys agreed. But relatively few judges (25%) and trial attorneys (25%) thought the larger juries increased the fairness of the trial. Judges (78%) and trial attorneys (64%) largely agreed that the larger juries did not decrease trial efficiency. Finally, 93% of jurors and 77% of attorneys agreed that “the right number” of jurors were empanelled expanded in their cases.
I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied — click here for the last post discussing the use of juror questions.
The second Phase Two Principle tested was substantive preliminary jury instructions. Courts were instructed to follow traditional jury instruction procedures to develop initial substantive jury instructions explaining:
- The jury’s rule;
- Trial procedures, including taking notes and juror questions – click here for the Blog’s post about jury questions;
- The native and evaluation of evidence;
- Issues to be addressed;
- The elements of the claims; and
- Jurors’ obligations during trial.
Courts were also encouraged to repeat instructions throughout trials as necessary. When I clerked for District Judge Gordon Quest (W.D. Mich.), I saw numerous trials, in a very short period, all of which used preliminary instructions. It is hard to believe a trial without preliminary instructions could be as effective as one with them. Most jurors come to a trial without significant trial experience beyond Law & Order or CSI – both great series, but lousy juror education. Going through a trial without instructions until the end is like asking people to play football, without telling the rules of the game until the fourth quarter. The results of the study confirm my belief. Thirty four trials used preliminary instructions. Judges from 87% of the trials reported that the preliminary instructions approved juror understanding. 80% of the judges said the instructions increased the judge’s satisfaction with the trials. And judges believed that the instructions increased fairness in 76% of the trials. No judge believed that the instructions harmed the trial process. Chief Judge Holderman believed the preliminary instruction were valuable:
I have found that preliminary instructions helped to orient the jurors to the case and allowed the jurors to start making connections between the evidence and the disputed issues in the case more quickly.
I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied.
First up is allowing jurors to submit written questions for witnesses. As I discussed previously, jurors and judges both overwhelmingly believed juror questions benefited both juries and trials. It is hard to imagine that juror questions would not benefit trials and justice. If you ever have the opportunity for a post-trial discussion with a jury, a common theme is what the jury did not understand about the trial and the questions jurors wanted the lawyers to ask. While it is a little frightening for trial lawyers to give up some control of the trial process, overall both sides are better off with the jurors’ questions answered, removing a huge distraction for jurors. And you can learn much about how a jury is leaning or what you need to do in your case by listening to jurors’ questions.
Of course, as with most things during a trial, the details are very important. The Commission used the following initial jury instruction explaining that written questions could be submitted, that they would be asked only if allowed by the Fed. R. Evid., that they might be revised to comport with the Rules, and that questions may or may not be asked of all witnesses:
The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project. The Northern District was heavily represented on the Commission. The following Northern District Judges were members of the Commission: Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel. The Commission recently published its report — click here to read it. The report describes a two phase analysis. In the first phase, district judges tested the following seven ABA Principles:
1. Twelve-Person Juries;
2. Jury Selection Questionnaires;
3. Preliminary Substantive Jury Instructions;
4. Trial Time Limits;
5. Juror Questions;
6. Interim Trial Statements by Counsel; and
7. Enhanced Jury Deliberations.
Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested. Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures. Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles. Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:
The Seventh Circuit’s Judge Posner is scheduled to begin a bench trial this morning on the issue of inequitable conduct in New Medium Technologies LLC v. Barco NV, No. 05 C 5620. The trial is scheduled to last today and tomorrow, but could go as long as Wednesday. I represented a party that was in the case, but settled and was dismissed from the case last year. As a result, I have not covered any opinions from the case, previously before Judge St. Eve. But I am going to observe some of the trial, and I may blog about the trial if I find some interesting things to say that relate more to the trial techniques of counsel or Judge Posner’s courtroom than the facts of the case.
But if you are interested in watching Judge Posner hear a patent case or what I expect to be some excellent advocacy from the Niro firm, for plaintiffs, and Baker & McKenzie, for defendants, the bench trial is being heard in Judge St. Eve’s courtroom.
Miyano Machinery USA, Inc. v. MiyanoHitec Machinery, Inc., No. 08 C 526, 2008 WL 236610 (N.D. Ill. Jun. 6, 2008) (Nolan, Mag. J.).
Judge Nolan granted plaintiff’s motion to quash defendants’ subpoenas of plaintiff’s counsel – who represented: 1) plaintiffs and perhaps individual defendants in plaintiffs’ earlier trademark prosecution; and 2) plaintiffs in this case. The Court denied defendants’ motions to compel production of communications between plaintiffs and plaintiffs’ counsel and to pierce the privilege.
Defendants argued that plaintiffs committed fraud on the PTO, and therefore inequitable conduct, when plaintiffs’ counsel allegedly knowingly submitted false declarations during prosecution of plaintiffs’ trademarks. Defendants based their claims on an allegedly privileged communication between plaintiff and its counsel (Exhibit L) that plaintiffs claimed was inadvertently produced.
The Court held that Exhibit L was inadvertently produced – it was just one document among 22,000 pages and plaintiffs requested its return immediately after discovering its production. Furthermore, Exhibit L was essentially a list of questions from counsel to plaintiffs, by which counsel was making sure he had sufficient information to file the declarations in question – evidence supporting plaintiffs’ defense of defendants’ inequitable conduct claims.
Blawg Review #174 is available at D. Todd Smith’s Texas Appellate Law Blog — click here to read it. Smith boldly went without a theme, but it is a great Review, even without a theme. Smith picks up on my coverage of the Seventh Circuit’s recent decision affirming the Northern District’s holding that the NFL is a single entity for IP licensing purposes, as well as related coverage at Sports Law Blog and Blawgletter.
Am. Needle, Inc. v. New Orleans Louisiana Saints, No. 07-4006 (7th Cir. Aug. 18, 2008) (Kanne, J.).*
Judge Kanne, writing for a unanimous panel, affirmed Judge Moran’s opinions holding that the National Football League ("NFL") acting through its NFL Properties entity was a single entity and, therefore, dismissing plaintiff American Needle’s Sherman Act antitrust claims – click here and here to read the Blog’s post on Judge Moran’s prior opinions in this case. For more than twenty years, NFL Properties licensed American Needle to use various NFL and NFL team trademarks on American Needle’s headwear. American Needle filed this suit after NFL Properties entered an exclusive, ten year license with Reebok, ending American Needle’s license rights. Plaintiff argued that the NFL teams collectively, as well as in concert with Reebok, violated the antitrust laws by acting together through NFL Properties to license their collective intellectual property rights exclusively to Reebok (American Needle argued that the NFL did not violate antitrust laws when it licensed to numerous parties, including American Needle, through NFL Properties).
The Seventh Circuit explained that sports leagues are difficult to classify because they display elements of a single entity, as well as elements of a joint venture made up of independent owners. The Seventh Circuit, therefore, determines whether a sports league is a single entity "one league at a time" and "one facet of a league at a time." In this case, the NFL was a single entity because for the purpose of promoting its football product — because no one team can stage a game alone. It followed that if the NFL was a single entity for promoting football, it was also a single entity for promoting its product by selling NFL apparel. Additionally, the Court noted that the record established that the NFL teams had been acting as a single entity for IP licensing since 1963.
On Wednesday, August 13 at noon CT, I am giving a teleseminar with Evan Brown (a fellow Chicagoan who writes the insightful Internet Cases blog) and Professor Eric Goldman (who writes the excellent Technology & Marketing Law Blog) discussing the current state of the Communication Decency Act’s Good Samaritan clause. The seminar will focus on, among other things, the Roommates decision in the Ninth Circuit — click here for Goldman’s posts on the case — and the Craigslist decision from the Seventh Circuit (upholding a Judge St. Eve opinion) — click here for the Blog’s posts about that case and here for Brown’s posts.
Click here for ALI-ABA’s web brochure about the seminar. It promises to be an interesting discussion with lively debate. And ALI-ABA has generously offered a $30 discount off of the seminar’s $149 cost for Blog readers that use this code: TSPV02DD.
The Seventh Circuit’s Judge Posner wrote a Tips from the Trenches column for the ABA in May. The article was well written and insightful, no surprise from Judge Posner. He summed up his advice like this:
be brief, be clear, be simple, be vivid, be commonsensical, avoid legalisms, and do not be afraid to spoon-feed us—we will not bite your hand.
He also provided more detailed advice. Here are my favorites:
- Use visual aids. But he suggests pictures or objects instead of charts or graphs. People (and judges are people, although litigators sometimes forget they are) connect with and remember images better than words or statistics, especially when they see the demonstratives quickly and from a distance.
- Admit when you do not know and concede when you must. Few things kill credibility like false statements, even unintentionally false ones, or refusing to admit the obvious.
- Rehearse. And not just by reading your materials and preparing notes. Set up a session as close to what you can expect as possible. You practice baseball by playing and running by running, practice argument the same way.
- Dress to be taken seriously. First impressions matter and the judge(s) see you both before and while they hear you.
Most of Judge Posner’s points apply to both district and appellate court arguments. The article is worth a read.
e360Insight, LLC v. Comcast Corp., No. 08 C 340, Slip Op. (N.D. Ill. Apr. 10, 2008) (Zagel, J.).
Judge Zagel granted defendant Comcast judgment on the pleadings, dismissing plaintiff e360Insight’s ("e360") Computer Fraud and Abuse Act, First Amendment, and related state law claims. e360, an Internet marketer and accused email spammer, alleged that Comcast harmed e360 by unjustifiably blocking all or most of e360’s emails from Comcast’s customer email accounts. Comcast stopped e360′s emails with filtering software that identified and stopped emails from e360 addresses.
Comcast argued that the Good Samaritan clause of the Communications Decency Act, 47 U.S.C. § 230(c)(2), provided Comcast absolute immunity from e360′s claims because Comcast voluntarily filtered e360′s emails to restrict access to what Comcast believed was objectionable content. The Court held that the Good Samaritan clause provided absolute immunity for ISPs that filtered for objectionable material. The Court also held that Judge St. Eve’s and the Seventh Circuit’s recent Chicago Lawyers’ Committee v. Craigslist opinions – click here for more on those cases – were not applicable. Those opinions limited the clause’s protection for ISPs that chose not to filter. Because Comcast filtered, it enjoyed absolute protection. The Court also held that e360′s compliance with Congress’s spam prevention laws, 15 U.S.C. §§ 7701-13 (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM") was irrelevant. Regardless of compliance with CAN-SPAM, the Good Samaritan clause still allowed the ISP to make a good faith judgment that e360′s emails were objectionable. And e360 did not sufficiently plead Comcast’s lack of good faith in determining that the emails were objectionable.
I recently posted that the Seventh Circuit upheld Judge St. Eve’s decision in CLC v. Craigslist. In those decisions, Craigslist was found not liable for allegedly discriminatory housing want ads posted on its site because of the Good Samaritan clause of § 230 of the Communications Decency Act. University of Chicago Prof. Randy Picker authored a post at the University of Chicago Law School Facility Blog arguing that the Good Samaritan clause, which exempts ISPs from any filtering requirements, significantly disadvantages Craigslist’s bricks and mortar competitor – newspapers. Newspapers, which are in dire financial straits, are required to filter discriminating adds.
Picker argues that Craigslist (or ISPs more broadly) and newspapers should be treated equally – either both or neither should have to filter. As a newspaper aficionado, this makes a lot of sense to me. The problem is that either extreme is problematic. Filtering, at least tailored filtering to avoid a large percentage of false positives, is impractical for ISPs because of the high volume of content and small work force. On the other hand, not filtering likely harms the Fair Housing Act. But there maybe a viable mid-ground. Both ISPs and newspapers could be exempted from filtering and a take down provision could be created, similar to the DMCA. Someone who finds a discriminatory ad could send a take down notice, causing the ISP or newspaper to remove the ad. The advertiser could then challenge the notice. A take down provision would allow entities like the CLC to protect the ideals of the Fair Housing Act. And it would allow newspapers and ISPs to compete on an even playing field.