Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

According to Chief Judge Holderman during the annual state of the Northern District speech, the state of the Northern District is "good" -- click here for the Northern District's statement regarding the speech.  The Northern District was briefly at full capacity, between Judge Dow's appointment to the Northern District and Judge Filip's resignation to join the Department of Justice.  Other highlights of the presentation included:

• The Northern District remains in the top ten districts in terms of median time to civil case disposition at 6.2 months.
  
• Magistrate Judges Brown and Mahoney were reappointed to additional eight year terms; and
  
• The Northern District's 2007 civil case load remained nearly constant, falling only .5% from its 2006 level.

The Northern District's steady civil case load is especially impressive in light of the Seventh Circuit's reduced case load in 2007.  The Chicago Tribune's Ameet Sachdev reported -- click here for the story -- that the Seventh Circuit's Chief Judge Easterbrook, during his state of the Seventh Circuit speech, reported that the Seventh Circuit's case load dropped 10% for the second year in a row.  Sachdev noted that federal appellate court case loads had averaged a 5% drop per year since 2000.  And Easterbrook explained the Seventh Circuit's 10% drop for 2007 as based upon two primary factors:

• The Seventh Circuit's district courts saw an overall 6% drop in their case loads; and
  
• The Seventh Circuit's preference for bright line rules over totality of the circumstance tests made it easier for entities to settle their disputes, saying:

Rules make it easier for private parties to avoid litigation, or settle their disputes, without asking for appellate evaluation in every case.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments (1)
• Trackbacks

Tomorrow I will be back to case analysis, but there is some Northern District news and some excellent IP and litigation blog posts worth reading, here they are:

• Ninth Annual Pro Bono and Public Interest Awards -- The Northern District and the Federal Bar Association are seeking nominations for excellence in pro bono and public interest work. Nominations should be based upon work performed in civil cases before the Northern District which are no longer pending. Send nominations by March 28 to:

Amy Rettberg, Executive Law Clerk
Email: amy_rettberg@ilnd.uscourts.gov
Chambers of the Chief Judge James F. Holderman
219 South Dearborn Street, Suite 2548
Chicago, Illinois 60604

• Patent Reform is Moving Forward -- The Senate is preparing to vote on the Patent Reform Act after its spring recess (yes, it is spring already in DC).  Here is some additional coverage of the Act's status:

271 Patent Blog -- looking at the latest amendments to the Act.

Maryland Intellectual Property Blog -- looking at the latest amendments and questioning whether proponents have the sixty votes necessary for cloture, thereby avoiding a filibuster.

Patent Docs -- taking sides, but asking you to call your Senators regardless of which side you take.

• Check out the newest entry to Chicago's law blog scene, the Lean & Mean Litigation Blog.  It is not IP-focused, but it is an interesting read for any commercial litigator or litigant.
  
• William Patry at Patry on Copyright has an interesting post about the difficulties of serving corporate entities based upon a District of the District of Columbia case involving a pro se plaintiff.  The best advice, of course, is to hire counsel because if you do not get the party served properly, you have no case.
  
• The Seventh Circuit affirmed Judge St. Eve's ground breaking opinion in the CLC v. Craigslist case.  The Seventh Circuit held that an ISP is exempt from cases based upon user content when the case attempts to treat the ISP as a publisher of the content.  This is considerably narrower than most of the other circuits, which have held that Section 230 exempts ISPs from essentially all suits based upon user content.  For more coverage, check out the WSJ Law Blog (which erroneously elevates Judge St. Eve to the Seventh Circuit), Internet Cases, and the Technology & Marketing Law Blog (very detailed analysis of Judge Easterbrook's opinion).
  

• Email This
• Print
• Comments
• Trackbacks (1)

Flentye v. Kathrein, No. 06 C 3492, Slip Op. (N.D. Ill. Oct 2, 2007) (Cole, Mag. J.).*

Judge Cole continued defendants’ motion to compel for one week because defendants had not conducted a Local Rule 37.2 conference before filing their motion. But the Court also provided its thoughts on the prosecution of discovery, both in this specific case and generally. The Court noted that after one year of discovery, “not a single document was produced in response to the 70 paragraph document request!”

But what is most interesting about the opinion is the Court’s quotes on various discovery issues. On discovery generally: 

“[D]iscovery is the bane of modern federal litigation.” Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir. 2000). It is intrusive, unpleasant, time-consuming and costly. It is, like life itself, “nasty [and] brutish …” Hobbes, Leviathan, Chapt XIII. Unfortunately, it is not generally “short.”

On Fed. R. Civ. P. 37(a)(4) sanctions:

The great operative principle of Rule 37(a)(4) is that the loser pays. Fee shifting, when the judge must rule on discovery disputes, encourages their voluntary resolution and curtails the ability of litigants to use the legal process to heap detriments on adversaries without regarding to the merits of the claim.

Quoting Rickels v. City of South Bend, Indiana, 33 F.3d 785, 786 (7th Cir. 1994) (Easterbrook, J.) (internal quotes omitted).

On the less-than-civil nature of “modern” litigation:

Unfortunately, what has occurred here thus far is not uncommon, and the often needless disputes arising in discovery are but the current manifestation of the difficulties about which Learned Hand lamented almost three quarters of a century ago. In an address to the Bar Association of the City of New York in 1921, Hand, then a young district judge, spoke about the “atmosphere of contention over trifles, the unwillingness to conceded what ought to be conceded, and to proceed to the things which matter. Courts have fallen out of repute; many of you avoid them whenever you can, and rightly. About trials hang a suspicion of trickery and a sense of a result depending upon cajolery or worse. I wish I could say that it was all unmerited. After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” Lectures on Legal Topics, Learned Hand, The Deficiencies Of Trials To Reach the Heart of the Matter, 105 (The MacMillan Co. 1926).

On bad blood between litigants:

What Chief Judge Easterbrook recently said in another case seems to apply here: “There is a grudge match.” Redwood v. Dobson, 476, F.3d 462 (7th Cir. 2007). The parties are free to entertain whatever animus they possess towards each other. Judges have no business in trying to regulate thought and emotion. But they do have an obligation to regulate how parties deal with each other and with ensuring that they comply with the discovery provisions of the Federal Rules of Civil Procedure.

*  For more about this case in the Blog's archives click here.

• Email This
• Print
• Comments
• Trackbacks