On the Mark

New York State Judges are now planning to sue for a raise since they haven’t had one in a decade.

What seems to be getting the Judges hot under the robe is the fact that the State budget proposal is 6 Billion dollars higher than last year and not one red cent of that 6 Billion is being slotted toward those who handle the legal mess the state generates.

Jeremy Peters of the NY Times wrote an interesting piece on this today and given the fact that NY State just thumbed it’s budgetary nose at $345 million in Federal Transit Aid by killing the congestion pricing legislation, nerves are pretty frazzled all the way around in the Empire state. 

I’m not sure if this will be a class action suit against the state but I’m always curious at lawsuits and the discovery that can arise. In the case of Judges, Legislators and Ex-Governors, this may be a pretty interesting story developing.  We’ll keep our eyes peeled for the complaint filing or other public ink.

On the Mark 

In the matter of PharMerica Inc. v. Healthprime Inc., 1:07-cv-0207. , U.S. District Judge Julie E. Carnes recently found that three health care providers “clearly and blatantly failed to meet their discovery obligations” in their ongoing litigation.

I’ll tell you what strikes this writer is the noticeably sharp and pointedly harsh wording of this order issued on March 19th.

“The recalcitrance, gamesmanship, and bad faith of Healthprime, HCC, and Hanover have caused unnecessary expense for plaintiff and unnecessary work for this Court,” Carnes wrote.

Note to readers, in the times following the changes to the FRCP back in 2006 and then again in 2007, it should be glaringly obvious that the judiciary is no longer interested in entertaining needless and unnecessary adversarial tactics in discovery. It’s the whole point of the 26(f) meet and confer process that encourages parties to work it out and not bring this type of problem to the court.

The Judge further blisters the defendants in pointing out that while they’ve expended “little energy in responding to plaintiff’s discovery requests, they have mustered up enough initiative to file a Motion for Summary Judgment with the Court”

For the Defendants’ the next stop is Sanction-ville.

“Should defendants continue to be uncooperative, the Court will consider striking defendants’ answers and then entering a default against them.”

Ouch.

For a little more in-depth coverage, check out the Law.com article which ran yesterday.

On a sad note, On the Mark would like to illuminate the life and passing of Dith Pran. Dith was the NY Times photographer who’s life and strength were memorialized in movie The Killing Fields.

I suggest you take a moment and explore the NY Times Obituary for Dith Pran here

On Tuesday March 18th, 2008, Magistrate Judge John Facciola gave the White House a mere three days to respond to a proposed order directing them to show why they should not be made to copy all email found on computers in the Executive Branch. The Judge seeks to protect email from 2003 through 2005, as it was recently disclosed by the White House that they had previously recycled back-up tapes for the period before 2003.

We have discussed this case before here at On the Mark back in October last year and it appears that this will be coming to a head in the near future.

In a post today on Law.com, writer Pete Yost details this recent order and the White House response and their conduct which lead to this situation.

As an editorial comment, I find it mind boggling that the White House has been unable to do what Corporate America has been able to do and that is to establish a simple document management and email archiving system. Work started on this project in 2003 and as of 2006, work was not complete and actually stopped with nothing to show. On the 5th anniversary of “Shock and Awe” the Executive Branch has made a relatively straight-forward document management and email archiving project an impossibility. It is amazing to me that with all the billions of dollars spent, they were unable to get a handle on such an important matter.

On the Mark

A very good piece by Adam Liptak appears in The New York Times today about hard drives, people’s privacy, their rights under the law and recent and pending decisions that will shape the landscape.

The piece is titled “If Your Hard Drive Could Testify…” (click to read full story)

The cases he discusses concern federal government searches of hard drives for evidence of child pornography. As a parent, I’d just as soon go straight to the punishment phase for those involved. But the story looks at the more complicated issue of whether those searches require reasonable cause.

“Electronic storage devices function as an extension of our own memory,” wrote Judge Dean D. Pregerson of Federal District Court in Los Angeles as he granted Defendant’s motion to suppress evidence  in U.S. v Arnold (2006).

United States v Arnold Decision (2006)

In the Times story: “Searching a computer,” said Jennifer M. Chacón, a law professor at the University of California, Davis, “is fairly intrusive.” Like searches of the body, she said, such “an invasive search should require reasonable suspicion.”

An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government’s ability to acquire information.

“Under the government’s reasoning,” the brief said, “border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign.” That is, the brief said, “simply electronic surveillance after the fact.”

EFF & ACTE Amicus Brief

The article delves into deeper issues presented by two other interesting cases, specifically, the use of PGP (Pretty Good Protection), a password protection and encryption software used by one defendant, and the government’s right to force a citizen to provide that password to prosecutors.

This is one of the more noteworthy articles I’ve read recently — well worth your time.

- On the Mark

Larry Center and advisory board chairs Magistrate Judge John M. Facciola, Kevin Brady, Robert Eisenberg and Jonathan Redgrave are making their proposed “E-discovery Training & Accreditation Academy” at GU Law Center a reality, having received a ”qualified green light” from Dean Aleinikoff. 

Following a letter to him signed by a long list of Advisory Board members, the Dean met with Larry to discuss the proposal and the way forward.

Larry Center said in an email today:

“The establishment of such a world-class training school and its administration, infrastructure, course content, instructional texts, faculty, etc. is unquestionably an ambitious and complex undertaking.

“Accordingly, the Dean has requested the presentation to him of a written plan touching upon all major aspects of the Academy. Within the next 60 days the Committee on the Academy, a sub-group of the Institute’s Advisory Board, together with our CLE team, anticipates the completion and presentation to Dean Aleinikoff of the requested plan.”

As an Advisory Board member and CLE instructor there, I can’t tell you how happy I am for this good news.

And the EDD and legal worlds should be happy about this, as well.