Minnesota Lawyer Blog

The revised Federal Rules of Civil Procedure turns 1-year-old this weekend, and according to Eden Prairie-based electronic discovery firm Kroll Ontrack, around 105 e-discovery opinions came down over the past 12 months.

As you may remember, the new rules attempted to streamline e-discovery by calling for earlier judicial conferences, exempting material that is not reasonably accessible and adding a safe harbor provision, among other changes.

So without further ado, here are the five most significant cases that addressed e-discovery in 2007, courtesy of Kroll:

Columbia Pictures Industries v. Justin Bunnell
The Central District of California in May held that server log data stored in RAM was discoverable.

Lorraine v. Markel Am. Ins. Co.
The District of Maryland in May outlined standards for the admissibility of electronic evidence, stating it must be relevant, authentic, not hearsay or admissible hearsay, the "best evidence" and not unduly prejudicial.

Peskoff v. Faber
The District of Columbia in February ruled that accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible.

Qualcomm, Inc. v. Broadcom Corp.
The Southern District of California in September considered sanctioning attorneys for discovery abuses.

Oxford House, Inc. v. City of Topeka
The District of Kansas determined there was no obligation to preserve overwritten e-mails before the likelihood of litigation.

More information about these and other e-discovery cases is available in .pdf form, organized by jurisdiction and topic.

The Fourth Judicial District, serving Hennepin County, in a press release today announced an immediate hiring freeze along with changes in court hours and operations in response to an anticipated budget shortfall. The court projects a $1.4 million budget deficit for its current fiscal year which ends in June 2008.

The hiring freeze reportedly will result in staff shortages throughout the court, requiring a reduction in services. Some of the changes that will impact the public include:

-- Walk-in counter and telephone services will be curtailed Wednesday afternoons, 1:30-4:30 pm, beginning Jan. 2, 2008. For example, citizens will no longer be able to pay traffic tickets in person, request copies of court files, or receive updates on the status of cases via telephone on Wednesday afternoons at all locations. Court hearings and trials will not be affected and will continue as usual.

-- Conciliation Court calendars will be reduced by one-third, resulting in some delay in scheduling hearings.

-- A program that provides supervised visitation services to noncustodial parents and their children in Family Court will be halted.

-- The court will no longer provide arbitrators for Alternative Dispute Resolution in Civil Court.

-- The court will no longer conduct criminal record checks for the public; members of the public will be referred to the public access website where this information is available.

Several factors are contributing to the anticipated shortfall, according to the release. The Hennepin County Court received $900,000 less than its budget required to cover salary and fringe benefit increases and funding for positions required by a new information system. Some of the new money that was appropriated to the state’s trial courts for the Fiscal Year 2008-2009 biennium was earmarked for special purposes, making it unavailable to cover increases in basic operating costs like employee salaries and insurance.

The District had hoped to rely on vacancy savings to help cover its shortfall. However, year-to-date vacancy rates have been much lower than expected, the release said.

If you’ve ever wondered why a new copy of Microsoft’s Vista operating systems costs $300, a clue might lie in the size of the war chest the software giant must maintain for its legal fees.

A Wisconsin judge ruled this week that Minneapolis attorneys with national law firm Zelle, Hoffman, Voelbel, Mason & Gette were entitled to $4.2 million in legal fees and expenses stemming from its work in an antitrust suit against Microsoft that was settled in 2006. Microsoft challenged the fees, saying the Zelle firm had misrepresented the hours they spent working on the case.

The Wisconsin class action suit was settled for $223.8 million. A similar suit based in Minnesota was settled for $174.5 million.

Earlier this year, the Software Freedom Law Center did a projection of how much Microsoft users are being asked to share in the company’s legal costs. The group took the total of $4.3 billion dollars in legal costs incurred by Microsoft from 2001 to 2004 and divided it by estimated sales of the Windows XP operating system over the same period — about 200 million copies — to come up with a figure of $21.50 per user that goes toward Microsoft’s defense of patent suits and other legal costs.

Gov. Pawlenty will announce his pick for the Minnesota Supreme Court this afternoon. Not a lot of process, not that there has to be. Many in the legal community expect a prominent attorney, not a sitting judge, to be Pawlenty's pick. One name that has been frequently mentioned is Eric Magnuson, head of the judicial selection commission, but we'll see. The governor will also name judges to district courts in Carver, Dakota, Rice and Scott counties.

The Associated Press reports that the U.S. Supreme Court today declined to hear a challenge to a California county's practice of routinely searching welfare applicants' homes without warrants.

While I am not completely comfortable with the hang-the-mutineers-from-the-yardarm approach of the Wall Street Journal’s recent editorial, I don't think that Rachel Paulose’s decision to leave the Minnesota U.S. Attorney’s Office should end the inquiry into what happened there.

In a highly public uprising last April, three of Paulose’s then-deputies and an administrator stepped down from their leadership roles. (All four opted to stay in that office rather than leave, creating a management situation for Paulose that was awkward to say the least.) The move – which came at the height of the furor over the national U.S. Attorneys scandal – appears to have been calculated to dislodge Paulose from her post. Predictably, the self-demotions led to a firestorm of round-the-clock negative media coverage focused on Paulose. However, Paulose was left standing after media attempts to tie her actions into the national scandal failed.

There are, of course, exceptional circumstances that would justify a mutiny like the one staged by these deputies. So far, I have not seen anything like that on the public record – just allegations Paulose wasn’t a good manager. I think it is something that definitely needs to be explored now – particularly if, as Senators Norm Coleman and Amy Klobuchar recommend, U.S. Attorney General Michael Mukasey is to choose an internal candidate as Paulose’s successor. (At least one of those deputies has been named as a possible candidate in the local press.) As a corollary, such an inquiry should also consider how these each of these individuals acted after they stepped down and went back to nonmangement roles.

The other thing that concerns me deeply is that a person or persons in the office leaked highly sensitive personnel information over the Internet, including selected details of a retaliation and a discrimination complaint. This leaking was done in a manner to stoke the negative media coverage and to compromise Paulose’s ability to effectively carry out her job. The divulging of this personnel-related information was not only clearly in violation of Department of Justice policy, but also threatened the integrity of the investigative process for those complaints. I think people working in a public office have to follow the rules – if we learned anything from the Gonzales era it should be that.

I urge the new AG not to rush to pick an internal candidate as U.S. attorney without first sorting out his or her role in the recent events in the office. I think the vast majority of those in the office kept their heads down and went about their business despite the intrusive controversies. A few people in the office appear to have become disruptive forces who made it their business to stir those controversies up. If our new U.S. attorney is indeed to be drawn from the internal ranks, I, for one, would like to make sure that he or she is drawn from the former group.

If U.S. Attorney General Michael Mukasey heeds the advice of the Wall Street Journal, disgruntled staff members who lobbied for Rachel Paulose to depart from the Minnesota U.S. Attorney's Office may soon wish they hadn't.

In a weekend editorial entitled "Scandalette" (password required), the heavy-hitting business daily weighed in squarely behind Paulose, who recently announced that she would leave the state at the end of the year to take a policy job at main Justice in Washington, D.C.

The WSJ opinion piece characterized most of the criticism against Paulose as amounting to an accusation that she can be a difficult boss. "If that's a hanging offense, then most of Congress would be out of a job," the WSJ says.

The editorial also refers to Paulose as an "innocent bystander" drawn into a "Beltway bloodletting" by a Congress wanting to take public hostages, a media playing up the controversy and a career staff that "took the chance to trash a political appointee they don't like."

The WSJ goes on to give the following piece of advice to Mukasey: "As for replacing Ms. Paulose in Minnesota, the AG ought to send to that office someone who'll take no grief and clean out the whiners."