We Recommend........Nothing.

2010 Civil Rules Report

That seems to be the net result of the Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure – a select group of hipster federal judges, various wonky academics, practitioners with time on their hands, and business groups  – which held a swanky conference last Spring to debate proposed changes to the Federal Rules of Civil Procedure.

There was much ado about electronic discovery, "metadata," anecdotal examples of discovery gone amok -- in other words, line up the usual suspects.

After all that effort, the committee has finally produced their interim report to Chief Justice Roberts.

Reading the report, I don't get any sense any big changes to the Rules are in the pipeline.  They seem to be taking a very neutral position, merely describing the bigger controversies without proposing any resolutions to them.

Perhaps that is a result of holding the conference at dreaded Duke.

Sheesh, how'd this blog get so procedural all of a sudden?

Exciting New CM/ECF Developments!

Hi folks, judicial elections are over, so everyone can take a deep breath.

Here's a fun fact from a new Time poll on what Americans believe, as Stephen Colbert likes to say, in our guts:

Twenty-eight percent of voters do not believe Muslims should be eligible to sit on the U.S. Supreme Court. Nearly one-third of the country thinks adherents of Islam should be barred from running for President — a slightly higher percentage than the 24% who mistakenly believe the current occupant of the Oval Office is himself a Muslim. In all, just 47% of respondents believe Obama is a Christian; 24% declined to respond to the question or said they were unsure, and 5% believe he is neither Christian nor Muslim.

Hmm, restrictions on members of a religion holding office or becoming a judge for nothing more than simply being a member of that religion -- that impulse seems vaguely familiar.

Oh well, let's talk about something really exciting -- CM/ECF.

I just got this email from the ND NY, where I sometimes find myself:

The Administrative Office of the U.S. Courts has advised us of a prospective change to the technical filing standard associated with our Case Management / Electronic Case Files (CM/ECF) system. Since its inception, the system has required that electronic documents be filed in portable document format (PDF). Now, a move to the new more-controlled PDF/A standard is necessary to enhance CM/ECF security and to improve the archiving and preservation of case-related documents. The Judiciary adopted the PDF format more than fifteen years ago. It serves as an excellent surrogate for paper and offers reliable renderings of court documents for all CM/ECF users despite their many different computer configurations. And the CM/ECF systems nationally now contain nearly five hundred million PDF files.

However, over time, new features that raise security concerns have been added to PDF. A few examples are: the ability for a filer to monitor if and when the document is read (that feature is blocked for documents filed in CM/ECF), and the ability for a filer to incorporate active software programs in the document. Those security concerns, and concerns about ensuring that our electronic documents could be archived and retrieved for decades (even centuries) to come, has led the Judiciary to join with other government agencies, corporations and technologists around the world to develop a new international electronic document standard that addresses those concerns.

That new standard, adopted by the International Organization for Standardization in 2005, is PDF/A.  The Judiciary has delayed implementation of the PDF/A standard until major software vendors provided for the creation of this format in conjunction with standard word processing packages. Ninety software vendors now do so. All versions of CM/ECF accept PDF/A today.

I wanted to alert the Bar to this issue as upcoming releases of CM/ECF will enable courts to require that all documents be filed in PDF/A format. Those new CM/ECF software upgrades will enable each court to control its transition to PDF/A. The goal of the Judiciary is to transition fully to PDF/A.

However, to ease that transition, CM/ECF will enable courts to allow exceptions to the PDF/A requirement so that Courts can file PDF (non/A) documents until the Bar can update their PDF creator software to the PDF/A format. Ideally, exceptions will be made only infrequently and only temporarily.

At this time, the Judiciary has not set a specific target date for requiring that all new documents be filed in PDF/A.   At this point, I am writing to the members of the Bar to alert you to this upcoming change, and to encourage you to start looking at upgrading your software (ie:, Adobe, WordPerfect, Word, etc.,) or devices (ie:, scanners, copier-scanners, etc.) that you use to create PDF documents to the PDF/A format.

What the hail are they talking about?

I understand and fully endorse PDA, but can a tech-savvy reader translate PDF (non/A) into English?

Does this somehow involve metadata or, worse yet, flat bread?

(I know, flat bread is so 2007.)

3d DCA Watch -- The Sad Decline of the Economic Loss Rule.

I've written about this before, but there was a time a few decades ago when all anyone wanted to talk about was the Economic Loss Rule.

Could it apply here? Why doesn't it apply here? Let's have a lunch seminar and discuss it!

It was everywhere, the "metadata" or pesto wrap flatbread legal trend of its time.

But as the bunkerized Robed Ones remind us, ding dong the ELR is dead:

This “prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Indem. Ins. Co., 891 So. 2d at 536. Moreover, when discussing the exemptions to the economic loss rule, the Florida Supreme Court, citing Moransais as an example, stated that “[a]nother situation involves cases such as those alleging neglect in providing professional services, in which this Court has determined that public policy dictates that liability not be limited to the terms of the contract.” Indem. Ins. Co., 891 So. 2d at 537. In Moransais, the Florida Supreme Court tacitly acknowledged that an extra-contractual remedy against a negligent professional is necessary because contractual remedies in such a situation may be inadequate. Moransais, 744 So. 2d at 983 (“While the parties to a contract to provide a product may be able to protect themselves through contractual remedies, we do not believe the same may be necessarily true when professional services are sought and provided.”). By allowing a professional negligence claim against an individual on common law and statutory grounds, and finding that the doctrine designed to prevent “parties to a contract from circumventing the allocation of losses set forth in the contract” does not preclude such a claim, the Florida Supreme Court implicitly acknowledged that claims of professional negligence operate outside of the contract.

Ahh Moransais -- it's been a while, welcome back my dear friend. Come sit next to my pal Venetian Salami.

But I guess my question is why?

What is it about professional services contracts in particular such that public policy compels -- in all circumstances -- that there be extra contractual remedies available in addition to those agreed to by the parties (or in Judge Shepherd's words, the "ancient concepts of freedom of contract")?

In other words, the court is not allowed to pay any attention to the circumstances of the contract formation or its terms, which typically can provide an equitable basis for extra contractual relief -- unequal bargaining power, obscure or buried terms, terms of adhesion, unconscionable terms, whether the parties are sophisticated etc.

Apparently all of the usual equitable tools get thrown out the window where professional services are involved, and it's simply the case that extra contractual remedies are always available?

I've never been a fan of the ECL, but at least I'd like to understand the reasoning for the exceptions.

Perhaps another way of looking at it is why shouldn't this exception extend beyond the professional service setting if there are compelling equitable grounds?

Jason Turchin Has An iPhone "App"!

Have you ever wanted a "call lawyer" app on your smartphone?

Well, whether you want it or not, Jason Turchin has created one:

Fort Lauderdale Attorney Jason Turchin this week released the free My Attorney App, which enables cell phone users to put their attorney directly onto their mobile phone. The App also allows users to call their attorney’s office at the touch of a button, to submit a free case inquiry, and to upload and submit photographs taken on their iPhone.

You can download Jason's app here.

Not sure what impact the new Bar rules might have on Jason's little doohickey, I'll leave that to Tannebaum to figure out.

(Good thing the folks at the Florida Bar have no idea what we're talking about -- they're still trying to get a handle on metadata).

You Don't Want My Metadata.

A few years ago everyone wanted to talk about "metadata."

There were CLE seminars on it, papers, you name it.

Of course the Florida Bar got involved and the Florida Bar Board of Governors held a conference and naturally everyone got very worried about it -- so worried that several of the board members hadn't heard the word "metadata" until the meeting in which they immediately voted to denounce it.

I don't want to say it reached what I would describe as the highest level of inordinate outsized media attention --"flatbread mania" if you will, but it got up there.

Add to that the annoying obligation recently imposed by the CM/ECF system to check off your awareness of your redaction responsibilities every time you log on -- thank you, stupid bankruptcy lawyers! -- and you have a perfect storm of y2k-style paranoia brewing.

Just a few moments ago I received this email from a federal district court advising that even your well-intentioned yet totally lame redaction methods may be inadequate:

Some redaction techniques used when e-filing are ineffective, in that the text intended to be hidden or deleted can be read via a variety of techniques. And, because information about the document, called "metadata", is also stored inside the document, it is often viewable as well. Examples of metadata and hidden data include the name and type of file, the name of the author, the location of the file on your file server, the full-sized version of a cropped picture, and prior revisions of the text.

E-filers must use extra care to make sure that the PDF documents to be submitted to ECF are fully and completely free of any hidden data which may contain redacted information. The protection of sensitive data can be compromised if improper redaction techniques are used. Here are a couple of examples of sensitive-data visibility issues:

* Highlighting text in black or using a black box over the data in MS Word or Adobe Acrobat will not protect the data from being able to be seen. Changing the text color to white so it disappears against the white screen/paper is similarly ineffective.

* Previous revisions and deleted text may be able to be seen by manipulating an Adobe Acrobat file.

Listen, I'M JUST TRYING TO FILE A NOTICE OF APPEARANCE HERE!

If somebody wants to take the time to unpack my one page notice and learn that I spent half the day rewriting the first page of the brilliant graphic novelization of Kafka's Metamorphosis to include wild half-man, half-bug sex between Gregor Samsa and Drew Barrymore, so be it:

One morning, as Gregor Samsa was waking up from anxious dreams, he discovered that in his bed he had been changed into a monstrous verminous bug. He lay on his armour-hard back and saw, as he lifted his head up a little, his brown, arched abdomen divided up into rigid bow-like sections. From this height the blanket, just about ready to slide off completely, could hardly stay in place. His numerous legs, pitifully thin in comparison to the rest of his circumference, flickered helplessly before his eyes.

“What’s happened to me,” he thought. It was no dream. His room, a proper room for a human being, only somewhat too small, lay quietly between the four well-known walls. Above the table, on which an unpacked collection of sample cloth goods was spread out—Samsa was a travelling salesman—hung the picture which he had cut out of an illustrated magazine a little while ago and set in a pretty gilt frame. It was a picture of Drew Barrymore from her January 1995 Playboy pictorial, with several well-placed tattoos and a smile that could make a man go buggy with primal animal desire. She sat erect there, lifting up in the direction of the viewer a solid fur muff into which her entire forearm had disappeared.

It goes on from there, but you get the picture.

There, I hope it was worth it, all you efiling metadata thieves -- happy now?

Honey, Could You Scrub My Metadata?

I don't know about you, but I am sick to death of hearing about "metadata."

Note to prominent BigLaw attorney I chatted with the other day at Gordon Biersch -- there is nothing more boring than a metadata war story.

Seriously, tell me about your brilliant cross-examination, your last mediation, your car, your kids, your house, your vacation -- anything.

Just spare me that metadata anecdote and how clever and sneaky you were and how opposing counsel was completely clueless. I could care less whether you "mined" somebody's files or not.

Also, being able to barely fake your way through a ten minute conversation about metadata does not make you "cool" -- it makes you a dork.

I remember these conversations about "email" discovery back when those new doohickeys started to penetrate to the partner level at law firms. Everybody needed to have a seminar on how to go after company "emails" and how you can recover them and draft discovery directed to them, and how to introduce them into evidence etc. It was all very exciting!

That's what you metadata fetishists sound like today.

Anyways, see you all at the teleconference!