The National Law Review is pleased to bring you information about the upcoming ABA Winter CLE Institutes:
ABA National Institutes
Learn and network at these live in-person seminars that draw lawyers from across the nation. January National Institutes include the 2013 E-Discovery and Information Governance, January 23-25 in Tampa, FL. February National Institutes include the 2013 Gaming Law Minefield, February 14-15 in Las Vegas, NV.
It should come as no surprise to most employers that employment litigation is on the rise. It also should come as no surprise that discovery is seen as the biggest single driver of litigation expenses. Recent studies have shown that discovery can consume up to 68 percent of the costs in a case. Unsurprisingly, the vast majority of attorneys – both plaintiff and defense attorneys alike – agree that the costs of litigation and particularly discovery are not proportional to the value of a case. As a result, far too many cases are settled not to avoid the possibility of an adverse outcome, but simply to avoid the monumental costs of litigation.
The United States is virtually alone when it comes to litigating in this fashion. Most other countries permit discovery only as to those things that are contained in the pleadings. This was the same methodology employed in the United States prior to the adoption of the Federal Rules of Civil Procedure in 1938. The idea behind more expansive discovery was to avoid ambush tactics where litigants could withhold vital information until trial. In many ways, the goals behind the discovery rules have worked. Parties today have greater opportunities to explore the relative strengths and weaknesses of the other side’s case early on so that they can try to work out a negotiated settlement. On the other side of the coin, however, the costs have gone way up – and especially since the advent of the digital revolution over the last few decades.
Grappling with the ever growing costs of litigation – and particularly discovery – is a problem that vexes even the most experienced litigator or in-house counsel. While there are no quick fixes or easy answers, the following top 10 list, which represents the fruits of over a decade of hard-earned lessons drawn from real-world lawsuits, may help guide employers toward regaining some measure of control over their bursting discovery budgets.
10. Avoid Chasing Shadows. The failure to document key events in the employment of a worker not only creates needless gaps that require quick thinking and explanations from supervisors, but also increases discovery costs. If a document is critical enough, the plaintiff’s lawyer may not simply accept the explanation that it is missing or cannot be found. This could result in every stone being overturned and all avenues being investigated before the attorney (or the court) finally is satisfied that the phantom document is really gone or that it never existed in the first place – leaving the employer to deal with the ramifications of the fact that a critical document wasn’t created and/or maintained as it should have been.
9. Remember The Big Picture. Discovery is a tool – nothing more and nothing less. For any company involved in a lawsuit, the ultimate goal is to achieve the best possible and most economical result. The goal is not play games in discovery or to fight tooth and nail over something the other side is entitled to anyway just because they happen to be an adversary. Too often discovery takes on a life of its own and takes over the entirety of the litigation process. Obviously, employers should fight over what is important to them, but they are not likely to win by being obstructionists. Unreasonable conduct will just embitter the other side, antagonize the court and drag out the entire process.
8. Avoid the Data Dump. Employers know their own records and data far better than their outside counsel. However, many employers responding to discovery simply hand over a ton of data to their counsel and expect them to sort through it. This can be tedious, time consuming and expensive. While the attorneys need to review the materials for production purposes, providing context is key. Sheparding the attorney through the materials by giving context such as identifying what is (or is not) the employee’s personnel file, where handwritten notes came from, who wrote the handwritten notes, and why there are multiple versions of the same document all can help defray costs down the line. Employers don’t need to pay their lawyers to sort out patent inconsistencies in materials that the employer easily can resolve before it sends the items to the counsel for review.
7. Eliminate Chaos. Key documents should be kept in a secure and central location. It makes little sense to produce a personnel file only to discover months later during the deposition of a supervisor that the supervisor kept a separate personnel file with key documents that never were produced in discovery. This results in unnecessary discovery requests for the separate file and worse, exposes the supervisor to yet another deposition about that file. Beyond the inefficiency and duplication of effort, scattershot maintenance of employment records like this also can create the false impression that the company is hiding things.
6. Get Ahead of Electronic Discovery. All employers should have a document retention policy that addresses electronically stored information. Employers should know where their electronic information is stored and make sure they have a process to respond to litigation and discovery requests that may be made. Employers also should make sure they can process electronically stored materials in the event they do need to produce them. When involved in litigation, employers should have their counsel work with the other side to come up with manageable and reasonable search terms and iron out processing issues such as how the information should be produced. To the extent that an employer has sufficient resources, processing electronic discovery in-house instead of shipping it to an expensive third-party reviewer or counsel also should be considered as options to reduce costs.
© 2012 BARNES & THORNBURG LLP
The National Law Review is pleased to bring you information about the upcoming ABA Gaming Law Minefield Conference:
When
February 14 – 15, 2013
Where
On December 11, 2012, Governor Rick Snyder signed into law two bills collectively enacting “Right to Work” legislation in the State of Michigan. Michigan becomes the 24th state to enact some form of a right to work law, and joins Indiana as the second state in the Upper Midwest to do so in 2012. Wisconsin passed a similar law in 2010, though that highly publicized legislation applied only to public sector employers and unions. The most significant aspect of right to work laws is that they prevent unions and employers from requiring workers to join a union or to pay union dues as a condition of employment. The law will take effect gradually (it takes effect on or around April 1, 2013), as it allows all current collective bargaining agreements between unions and employers to remain in place.
So what does the new law actually say? Michigan’s Right to Work Law was passed as two separate Public Acts. Public Act 348 addresses private sector unions and amended 1939 PA 176, which governs many union activities and the relationship between unions and private employers in Michigan. Public Act 349 is a nearly identical Act that relates to public sector employers and unions. The following is a summary of significant changes to private sector relationships between unions and employers as a result of Public Act 348:
Public Act 349 contains nearly identical provisions pertaining to public sector employers and unions in Michigan. The only significant difference in Public Act 349 is it contains an exception for public police, fire departments, and state police unions. These unions may continue to collectively bargain for an agreement that all members of their organization shall pay union dues or fees to their union or exclusive bargaining representative.
There are likely to be challenges, both legal and political, to the new legislation. Labor unions, including the Michigan-based UAW, have already pledged to challenge the Acts in court. The Acts grant exclusive jurisdiction to the Michigan Court of Appeals, and indicate that the Court of Appeals will hear the action in an expedited manner. From a political standpoint, the monetary allocation to LARA in each Act prevents a referendum on the Acts because of language in Michigan’s Constitution. Instead, the UAW has indicated it will attempt to recall state legislators who supported the Act, and potentially Governor Snyder. A recall effort as to Governor Snyder may be less likely because he is up for re-election in 2014, but one might expect a scene similar to what played out in Wisconsin throughout 2011.
The significance of this legislation will also be felt throughout the Upper Midwest. Like Wisconsin, Michigan may be viewed as a bellwether for union opposition to right to work legislation. State and local governments, as well as private employers operating in closed shop states will need to remain aware of regional trends and shifting business climates as the right to work legislation in their neighboring states begins to take effect. As Michigan’s neighbor to the south, Ohio is now potentially under more pressure to pass a right to work measure given that its surrounding neighbors, Indiana, Kentucky, and now Michigan, are right to work states.
MBF client-employers will want to continue to monitor legislative developments, especially those clients making site selection decisions either to expand existing facilities or open new locations. Also, for those clients with operations in Michigan, there are issues to consider now including employee communications and other impacts the new Michigan law will have on existing operations.
The National Law Review is pleased to bring you information about the upcoming marcus evans Copyright and Trademark Protection in The Digital Age Conference:
The marcus evans Copyright and Trademark Protection in The Digital Age Conference will provide strategies for organizations who are dealing with digital copyright and trademark issues, address the management of digital content, digital license agreements, and overall evolution of copyright and trademark to ensure they are protecting their brand.
The National Law Review recently published an article by Nataliya Binshteyn of Greenberg Traurig, LLP, Advocacy Groups Ask White House to Postpone Decisions Affecting Same-Sex Spouses’ Immigration Status:
According to The New York Times, over 50 gay rights and immigrant advocacy groups have written a letter to the White House asking President Obama to delay the adjudication of derivative lawful permanent residency petitions that would benefit the foreign same-sex spouses of U.S. citizens.
In their December 10th request, the groups are seeking a postponement of USCIS decisions until the Supreme Court issues a ruling on same-sex marriage in one of the two such cases it has recently agreed to hear next year. According to the Defense of Marriage Act (DOMA), same-sex marriages do not bestow federal benefits, including those related to immigration. As a result, the USCIS has, to date, denied petitions that would grant legal permanent resident status to the same-sex immigrant spouses of U.S. citizens despite a January 2011 declaration that the U.S. Department of Justice would no longer enforce DOMA in the courts.
©2012 Greenberg Traurig, LLP
The National Law Review is pleased to bring you information about the upcoming White Collar Crime Institute:
The program will provide an in-depth analysis of three recent high visibility trials by the lawyers involved in the cases. The many topics covered will include: ethical pitfalls and blunders in white collar practice, conducting global investigations (including issues of competing laws), data privacy and blocking statutes, trial tactics in white collar cases, Brady obligations, international issues in white collar practice (including obtaining evidence abroad), handling of, and dealing with, issues related to electronically stored materials, sentencing guidelines and arguing for a departure, updates and trends in securities and FCPA enforcement, and more!
Thanks to Stephen Fairley of The Rainmaker Institute for bringing this graphic to The National Law Review‘s attention:
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The National Law Review is pleased to bring you information about the upcoming Global Financial Markets – Operational and Technical Changes for FACTA Compliance:
FATCA is amongst the biggest topics of debate in financial institutions across the globe. The effect that it will have on these institutions cannot be underestimated and its operational impact on the existing systems is set to be both time consuming and costly. The ability to successfully align all key stakeholders, including operations, technology, risk, legal and tax, will determine the ultimate cost of FATCA compliance. Moving on from mere interpretive matters, this GFMI conference will not only address key FATCA requirements but also discuss the practical impacts of IGAs and strategies for achieving operational and infrastructural efficiency.
The Operational and Technical Changes for FATCA Compliance Conference will be a two and half day, industry focused event, specific to Senior Executives working in Banks, Insurance and Asset Management Companies. Attendees will address key FATCA requirements, while discussing the practical implications of IGAs and strategies for achieving operational and infrastructural efficiency.
Key Themes of the Operational and Technical Changes for FATCA Compliance Conference Include:
1. Challenges of FATCA regulations and prospects for the final regulation
2. Achieving operational and infrastructural efficiency
3. Coordinating existing AML/KYC procedures with FATCA compliance
4. FATCA from the FFI’s perspective 5. Beyond banking: the challenges of FATCA implementation
6. Coping with the withholding obligation under FATCA
This is not a trade show; our conference series is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.
As expected, the Michigan House voted today to enact the pending Right to Work bills. Michigan Governor Rick Snyder signed the bills this evening, making Michigan the 24th Right to Work state in the nation. The changes to the law become effective 90 days following the end of the 2012 legislative session, making the effective date likely to be on or about April 1, 2013.
The full text of the final bills is available on the Legislature’s website and can be accessed by clicking on the links below:
SB 116(private employees)
HB 4003(public employees)
© 2012 BARNES & THORNBURG LLP
