Wednesday, February 17, 2010 at noon central, 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.

Continue Reading CLE: Seventh Circuit E-Discovery Pilot Program Phase One

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.

Continue Reading Court Enters Judgment on Trademark Damages and Attorneys Fees in Accordian Case

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.

Continue Reading No Heightened Originality Standard for Derivative Works

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.

Continue Reading Seventh Circuit Pattern Trademark Jury Instructions

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.

Continue Reading Judge Posner Suggests Tighter Copyright Rules to Protect News Reporting

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.
Hat tip to Dennis Crouch for linking to the new model jury instructions here at Patently-O.

Continue Reading New Model Patent Jury Instructions

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.

Continue Reading The Experts Look at Improving Voir Dire

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.

Continue Reading American Jury Project: Questionnaires, Deliberation Guidance and Time Limits

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.
83% of judges using interim statements would use them again and believed they assisted juror understanding. No judge reported abuse of interim statements. Most judges that did not try interim statements believed they would decrease trial efficiency.
Both trial counsel and jurors agreed with the judges that interim statements improved trials. 90% of jurors thought the interim statements were helpful for introducing or summarizing evidence.
The Commission suggests courts use interim statements for trials lasting longer than one week. The longer a trial runs, interim statements become both more helpful and more critical to juror understanding.

Continue Reading American Jury Project: Interim Statements to the Jury

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.
The actual fairness of trials may not have been improved by larger juries. But the increased diversity of the twelve person jurors should at least increase the perception of fairness. Much of the power of our judicial system rests in a shared public perception of its fairness. The perception of fairness, therefore, is critical to the system. As a result, I agree with the Commission’s finding that, despite the inconclusive findings, twelve person juries warrant at least further study, if not widespread adoption.
Finally, one interesting procedural note: courts across the country face consistent problems filling jury pools. So, increasing jury sizes will strain an already strapped system. This is partially resolved by the Commission’s decision not to increase each side’s three peremptory challenges along with the increased jury sizes. Not increasing peremptory challenges reduces the increased strain on the jury pool and helps increase diversity, but it also limits counsels’ ability to pick the best possible jury. There may not be a perfect solution to this problem, but it is, at a minimum, an interesting tension that warrants additional study.

Continue Reading American Jury Project: 12 Person Juries