The Federation of Defense and Corporate Counsel
Find A Defense Attorney

Will technology lighten the e-discovery burden

Along with “recession,” “regulation,” and “declining stock price,” few words are as likely to give businessmen heartburn as “discovery.” Add an “e” and a hyphen in front of that, and the same could be said for many lawyers.

Advances in digital storage capacity have allowed today’s corporations to store massive amounts of electronic data relatively cheaply. While that’s helpful to corporations in advancing their daily business, it can lead to headaches when something (allegedly, of course) goes wrong.

Technological advances may lighten the e-discovery burden in the near future. One of these technological advances, Predictive Coding, allows for review of a “seed set” of a larger collection of documents. Attorneys can review for relevance as few as 3,000 of a set of documents numbering in the millions. After this review, the Predictive Coding software analyzes the documents selected as relevant and analyzes the remaining documents to determine what is relevant.

At this point, a lot of you are saying, “there’s no way I would let a machine decide what is relevant; that’s an associate’s or coder’s job.” Human review of documents is a deeply engrained tradition in legal practice. But recent studies show that software review is both more efficient and more accurate than human review. Unlike human coders, the software never gets tired or distracted, and it eliminates the inevitable inconsistencies inherent in multi-attorney review of a set of documents.

In addition to the above, Predictive Coding is gaining judicial approval. In a large employment discrimination case in the federal Southern District of New York, Magistrate Judge Andrew Peck recently approved the use of Predictive Coding in discovery over plaintiffs’ objections. In the case, which involves more than three million documents, defendants will review about 15-20,000 documents before the software takes over. On appeal to the district court, Judge Andrew Carter affirmed Judge Peck’s ruling.

Fine, you say, but that’s a federal judge in one of the largest districts in the country. There’s no way a state-court judge is going to approve this newfangled technology, you say. But in a recent aviation case in Loudoun County, Virginia, Judge James Chamblin ruled that “Defendants shall be allowed to proceed with the use of predictive coding for purposes of processing and production of electronically stored information.” Global Aerospace, Inc. v. Landow Aviation, L.P., Consolidated Case No. CL 61040 (Loudoun County, Va., April 23, 2012).

If judicial approval of Predictive Coding spreads, then it will remove crushing discovery as one of plaintiffs’ most fearsome weapons. By reducing the time and expense associated with discovery, clients may be more willing to litigate a case rather than coughing up a settlement early to avoid extensive discovery, especially in document-intensive cases.

Anonymous Internet Commenting

We have all heard it, and we are probably getting tired of hearing it. Watch what you post on Facebook, Twitter, and other social media platforms. The potential problems are numerous. On most social media, you are readily identifiable. The consequences range from “merely” a poor reflection on your judgment to violation of ethical rules.

But what about more anonymous online postings?

As a federal prosecutor in New Orleans recently learned the hard way, posting online under a pseudonym does not offer much protection. Veteran prosecutor Sal Perricone posted more than 600 comments on the New Orleans Times-Picayune’s Web site under the handle “Henry L. Mencken1951.” This would seem innocuous enough, except that Perricone commented on stories about targets of federal investigation. And, typical of many anonymous online commenters, he did not exactly play nice.

Perricone was investigating a New Orleans landfill. On online newspaper stories about the landfill, Perricone repeatedly insulted the landfill’s co-owner, who was not personally under investigation. The co-owner became suspicious and hired an expert in forensic linguistics, who compared Perricone’s online comments to a legal brief he wrote and found striking similarities. The landfill’s co-owner has filed a defamation suit against Perricone.

Perricone admitted to making the comments and has been removed from all matters related to his comments. He was referred to the Justice Department’s Office of Professional Responsibility and could face further punishment.

How did this happen? Perricone is not talking, but it does not appear that he considered the possibility that his comments could be traced back to him. Age may have played a role here, as Perricone is 60 and may not have understood that supposedly anonymous online commenting is not necessarily anonymous at all. He probably did not expect that a former FBI expert would be brought in to smoke him out. But even short of such measures, there is good reason to exercise extreme caution with supposedly anonymous online commenting.

In Perricone’s case, there was nothing about his online screen name that indicated who he was. The mere fact that he took such an interest in these particular stories and that he seemed to have peculiar knowledge of the issues was enough to arouse suspicion. And it does not necessarily require an ex-FBI forensic linguist to determine who is posting comments. Login information and IP addresses could have been traced back to Perricone’s computer(s).

You may be saying “this isn’t relevant to me, I’d never be dumb enough to post a case-specific comment on a newspaper’s online edition.” If so, then that is great. But others on your cases, particularly young attorneys, may not realize that online commenting is not as anonymous as it may seem.

A short meeting discussing the issue could be well worth your time. As Perricone found out, the penalties can be harsh. He was removed from certain cases, referred to the professional responsibility office, and got hit with a defamation lawsuit. Most if not all states have ethical rules regarding extrajudicial statements regarding litigation, and particularly careless comments could divulge confidential information and possibly involve attorney-client privileged information. 

Scott Kreamer

Supreme Court nixes class arbitration in AT&T Mobility v. Concepcion

The idea that arbitration agreements are enforceable in consumer contracts is nothing new; Congress passed the Federal Arbitration Act in 1925. But the debate over mandatory arbitration agreements is gaining momentum, fueled by popular media and a recent Supreme Court decision.

Hot Coffee, an HBO documentary released in 2011 and directed by former plaintiff’s attorney Susan Saladoff, examines perceived unfairness to consumers in mandatory arbitration clauses. The film rekindled the debate over several issues in tort reform, including mandatory arbitration clauses. The debate will surely go on, but counsel should focus on the current law surrounding mandatory arbitration agreements and newer issues surrounding them, including class arbitration.

This past year, the Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion. In this case, the Concepcions bought cell phones and service from AT&T. Through a promotion, the Concepcions received free phones from AT&T, but later discovered they were charged $30.22 in sales tax for the phones. The service agreement between the Concepcions and AT&T provided for arbitration of any dispute between the customers and AT&T. It also required that the disputes be resolved in the customers’ individual capacities, and not as part of a class proceeding.

The Concepcions brought an action against AT&T, which was consolidated with a putative class action. AT&T sought to compel arbitration, but the District Court denied its motion. The District Court found the mandatory arbitration clause unenforceable under California law that prohibits unconscionable and unlawfully exculpatory arbitration provisions. On appeal, the Ninth Circuit affirmed the District Court.

Justice Scalia delivered the opinion of a sharply divided Supreme Court, reversing the Ninth Circuit and holding the mandatory arbitration clause enforceable. Scalia and the majority held that the FAA prohibited individual States from invalidating mandatory arbitration clauses that included a prohibition on class arbitration.

The FAA’s policy objectives supported the majority’s holding. Scalia noted that class arbitration would be slower and less efficient than bilateral arbitration, defeating the FAA’s goal of informality and efficient resolution of disputes. Class arbitration under the American Arbitration Association’s rules requires a level of formality similar to the Federal Rules of Civil Procedure. And because arbitration awards are not subject to multilayered review, they present unacceptable risks to defendants.

Defense & Corporate Counsel should be aware of the AT&T Mobility case. The Supreme Court’s holding that the FAA preempts state-law prohibitions on the enforceability of mandatory arbitration clauses requiring bilateral arbitration has broad implications for companies in the United States.  Bilateral arbitration is less costly and less risky than class arbitration and remains a viable option for corporations involved in consumer transactions. 

Citizens United, Western Tradition,and the Pratfalls of Corporate Election Contributions

We are officially in a presidential election year now, even though it feels like the candidates have been campaigning since the last election. And with the election season upon us, corporations have a new twist on campaign-finance law to consider.

            In 2010, the United States Supreme Court held that corporations have essentially the same free-speech guarantees as do individuals under the First Amendment. Citizens United v. Federal Election Comm’n, 130 S.Ct. 876 (2010). Specifically, the Court struck down a federal statutory provision prohibiting corporations from using their general-treasury funds for electioneering communications. An electioneering communication is made via broadcast, cable or satellite within 30 days of a primary or 60 days of a general election, and which refers to a candidate for federal office. 2 U.S.C. §434(f)(3)(A).

            Citizens United is a nonprofit corporation that released a feature-length documentary titled Hillary: The Movie, which aimed to persuade its viewers that Hillary Clinton was unfit to serve as President. The corporation sought declaratory and injunctive relief against the Federal Election Commission. In its opinion, the Court held that corporations enjoy the same free-speech rights as do individuals, and that restrictions on their political-speech rights were subject to strict scrutiny. As the Court did not find that the government had a compelling interest in restricting corporate speech in this manner, it held unconstitutional the federal law prohibiting expenditure of general-treasury funds on electioneering communications. However, it upheld the federal disclaimer and disclosure requirements. These provisions require a disclaimer indicating who is responsible for the content of the communication, and the filing of a disclosure statement with the F.E.C. if the entity spends more than $10,000 on electioneering communications in a calendar year.

            If not for the United States’ organization as a federalist system, then Citizens United may have been the final word on all domestic elections. But the Montana Supreme Court seized on Citizens United’s focus on federal elections and decided the precedent did not apply to state and local elections. Western Tradition Partnership, Inc. v. Attorney Gen’l, 2011 MT 328 (Mont. 2011).

            If for no other reason than its recitation of Montana’s colorful political past, Western Tradition is worth a read. But for politically inclined corporations and their counsel, it is worth examination as a caution that the state of corporate electioneering communications law is far from settled in this country. The Montana Supreme Court held that Citizens United governed only federal elections, and thus was not controlling. Unlike the United States Supreme Court, Chief Justice Mike McGrath and the Western Tradition majority believed Montana had a compelling interest in limiting corporate expenditures on political speech. These compelling concerns tie back to extensive corruption and outside influence in Montana in the late 1800s and early 1900s, and the fear of its return.

            It is possible Western Tradition will be appealed and summarily reversed by the United States Supreme Court. But unless and until it is, corporations and the counsel who advise them are well advised to consider carefully the campaign-finance laws specifically applicable to themin state and local elections.