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Arbitration in Three Dimensions by Paulsson Jan

February 22, 2010 By Leave a Comment

Abstract:

The law applicable to arbitration is different from the law applicable in arbitration. The latter leads arbitrators to decide as they do. The former refers to the source of their authority and the effect of their decision – the legal order that governs arbitration. According to the territorialist thesis, an arbitration can have no foundation other than that of the legal order of the particular state where the arbitration takes place. This outdated conception is disproved by the simple factual observation that a plurality of legal orders may give effect to arbitration. Some French scholars promote the notion of an autonomous arbitral order. Inasmuch as they ultimately seek to establish this order by positing its recognition by the very state orders from which they claim autonomy, their idea is circular and in effect no more than a dressed-up variant of ordinary horizontal pluralism. But the model of horizontal pluralism fails to account for important orderings of arbitral activity. Arbitration in modern society is accurately perceived as a complex, three-dimensional form of pluralism, in which legal orders (i) are not exclusively those of states and (ii) frequently overlap.

Working Paper Series

via SSRN-Arbitration in Three Dimensions by Paulsson Jan.

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Friend or Foe? Social Networking and E-Discovery

February 22, 2010 By Leave a Comment

A treasure trove of discoverable information

Attorneys making discovery requests in litigation now have to consider whether and to what extent they will seek information from social networking pages.

There are two ways to get information from social networking sites. The first is to search for it directly and see how much information can be obtained without resorting to an ethics-violating friending subterfuge. There’s nothing wrong with obtaining information that is publicly available; if an adverse party, witness or custodian of data exposes elements of his or her personal universe for any and all to see on a social networking site, it is fair game.

The second way is by discovery request, interrogatory or deposition. If an individual has been identified as one of the key custodians of information in a corporate party to litigation, and that person’s corporate e-mail is being produced, it should by now be standard to inquire if he or she used other personal e-mail services (e.g.  Gmail, Hotmail, Yahoo ) to communicate on business-related matters relevant to your litigation. This has to be taken even further now: Does this person have a social networking page, and if so, has this person communicated with anyone on the subject matter of this litigation using the messaging system within that site, and if so, please produce those messages.

Sometime in the not too distant future, litigation hold notices will include social networking pages.

via Friend or Foe? Social Networking and E-Discovery.

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Twitter Weekly Updates for 2010-02-21

February 21, 2010 By Leave a Comment

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New French Case Removes Automatic Privacy Shield From Employee E-Mails, Making Them More Amenable to US Discovery : H&H Chronicle of Data Protection

February 21, 2010 By Leave a Comment

A new decision released on 8 January 2010 from the French high labor court (the Cour de Cassation Chambre Sociale) may provide some grounds for arguing that a party in France can review a French employee’s e-mails and electronically stored information to determine whether the data is relevant to a U.S. litigation, without the employee’s knowledge or presence.  This is a significant development in the perennial tension between EU privacy law and U.S. discovery principles.

European Union policies protecting personal privacy almost always conflict with United States policies that grant litigants full and complete discovery of documents and electronically stored information in U.S. court actions.  The conflict is particularly acute in France, where a French corporation participating in U.S. litigation may easily run afoul of the French Blocking Statute (Law No. 68-678, as amended), data processing laws (e.g. Law No. 78-17, as amended), and the EU Directive 95/46 on Personal Data (“Directive”), among others.

Indeed, after years of goading by U.S. courts, French authorities even prosecuted someone, a French lawyer, under the blocking statute.  His crime was attempting to comply with a U.S. court order compelling production of documents.  See In re Christopher X, Cour de Cassation, Chambre Criminelle, Paris, December 12, 2007, No. 07-83228 (French Supreme Court upholding conviction and €10,000 fine against French lawyer attempting to facilitate collection of evidence for use as ordered in a U.S. judicial proceeding).  Examples of U/S. goading include In re Vivendi Universal S.A. Secs. Litig., No. 02 Civ. 5571, 2006 WL 3378115 at *3 (S.D.N.Y. 2006) (French blocking statute did not subject parties to a “realistic risk of prosecution”) and Minpeco S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 at 528 (S.D.N.Y. 1987) (“this is not a situation in which the party resisting discovery has relied on a sham law such as a blocking statute to refuse disclosure”).

via New French Case Removes Automatic Privacy Shield From Employee E-Mails, Making Them More Amenable to US Discovery : H&H Chronicle of Data Protection.

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E-Discovery Failings That Amount to Gross Negligence | Law.com

February 20, 2010 By Leave a Comment

Over the past decade, the law governing litigants’ obligations to preserve and collect electronic discovery materials has developed substantially. Much of this development was spearheaded by a series of leading decisions issued by federal district court Judge Shira A. Scheindlin in a long-running litigation known as Zubulake.[FOOTNOTE 1] Recently, Scheindlin — in a new ruling that she entitled “Zubulake Revisited: Six Years Later” — held that many of the document preservation and collection obligations that were first recognized in Zubulake and its progeny by now had become so well established that litigants’ failure to comply with them warranted severe sanctions, both monetary and substantive. Her ruling, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. Jan. 11, 2010), sounds yet another wake-up call to litigants about the seriousness and alacrity with which they must address document preservation and collection once litigation reasonably can be anticipated.

via Law.com – E-Discovery Failings That Amount to Gross Negligence.

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Itsy-Bitsy, Teeny-Weeny E-Discovery | Law.com

February 20, 2010 By 1 Comment

E-discovery was once the sole concern of large law firms involved in large-scale litigation. But as EDD increasingly becomes an issue in smaller cases for smaller law firms, small and solo lawyers are learning some hard lessons about electronic evidence in litigation.

Michael Barnsback, an employment and civil litigation senior associate with DiMuro Ginsberg says e-discovery is increasingly an issue for his 12-attorney firm in Alexandria, Virginia. While it is a challenge, he thinks it can sometimes benefit a small firm like his. He says there was a time when big law firms could count on bigger budgets and staff to out-muscle opposing counsel at smaller law firms. In particular, the document dump, the practice of sending as many files for review close to the start of a trial, has long been a favorite tactic for overwhelming an opponent. “It’s certainly leveled the playing field for us,” he says. “You don’t need a big team to do review. If someone dumps a truckload of boxes on you, now you can scan them, put them in a searchable format, and one person on one computer can find what you need to go into the case prepared.

via Law.com – Itsy-Bitsy, Teeny-Weeny E-Discovery.

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How Document Management Has Evolved in SharePoint 2010

February 19, 2010 By Leave a Comment

It’s always useful to get some kind of insight into the thinking behind the development of features in new software, particularly when it comes to SharePoint 2010.

In a recent entry on the Microsoft Enterprise Content Management Team Blog, Adam Harmetz, Lead Program Manager for SharePoint Document and Records Management, explains how new features in SharePoint 2010 build on SharePoint 2007 and what we might expect in the future.

The first thing he says is that many of the key document management infrastructures were introduced in SharePoint 2007, which was the first time that SharePoint enabled users apply structure and management to their document libraries as opposed to using it principally as a collaborative tool.

Those features and their integration with Microsoft Office client applications enabled users to create high-value knowledge repositories that were easy to interact with and were generally positively received by users.

SharePoint 2010 document management is built off the success of that and around a number of principal ideas including:

Managing unstructured silos

Use of metadata

Browser as document management application

via How Document Management Has Evolved in SharePoint 2010.

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Alcatel-Lucent signs deal with U.S. on bribery case | Reuters

February 19, 2010 By Leave a Comment

Telecoms equipment gear maker Alcatel-Lucent  set aside 93 million euros ($125.5 million) last quarter to settle a U.S. bribery investigation that began six years ago.

The Franco-American group said that it had reached agreements with the U.S. Department of Justice and the Securities and Exchange Committee under which it would pay fines, be put on a three-year probationary period, and be subject to a French anti-corruption monitor.

In exchange, the Department of Justice would defer prosecution of the company over charges that it violated the Foreign Corrupt Practices Act's anti-bribery provisions.

The accord must be approved by U.S. courts in order to take effect, according to a February 11 regulatory filing from Alcatel-Lucent.

“If finalized, the agreements would relate to alleged violations of the FCPA involving several countries, including Costa Rica, Taiwan, and Kenya,” said the company in the filing.

The investigation centered on an Alcatel executive Christian Sapsizian who pleaded guilty in 2007 to arranging for bribes to be paid to Costa Rican officials to obtain mobile contracts.

via Alcatel-Lucent signs deal with U.S. on bribery case | Reuters.

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12 Convicted in Pinot Noir Fraud Scheme | Law.com

February 19, 2010 By Leave a Comment

Worse than a faux pas, that embarrassing slip of the tongue, this was a case of faux Pinot involving French wine traders and local vintners that duped the California wine-making empire of E.&J. Gallo.

The faked red wine produced more than a blush. A court in the medieval town of Carcassonne in southwest France has convicted a dozen people in the scheme in which local wine exported to the United States was passed off as more expensive Pinot Noir. The scheme hit every level of the chain that takes the wine from the vine and gets it to U.S. consumers.

Claude Courset of the Ducasse wine trading company, portrayed as the kingpin of the scheme, was given the stiffest sentence in Wednesday’s decision, a six-month suspended prison term and a euro45,000 ($61,000) fine.

“Our wines are irreproachable,” he said in a telephone interview Thursday, adding that he “reserves the right to appeal.”

The company that sold Ducasse’s wine in the United States, Sieur d’Argues, was fined euro180,000 ($244,000).

They had been charged with “fraud in the quality and composition of the wine.”

Eight vintners and wine cooperatives in the Aude and Herault, part of the larger Languedoc-Roussillon region, all charged with deception and forgery, were given sentences ranging from a month suspended prison to fines of euro40,000 ($54,000).

The Carcassonne court described the fraud as “organized and structured.”

Prosecutor Francis Battut said in a telephone interview Thursday that Merlot and Syrah grapes were passed off as Pinot Noir in a scheme dating from January 2006 to March 2008.

A spokeswoman for Gallo, a veritable winemaking empire in the San Joaquin Valley, said the company is “deeply disappointed” that its supplier, Sieur d’Arques, was found guilty, adding that Gallo is no longer selling that wine to customers.

Gallo officials said Wednesday that the only French Pinot Noir that was potentially misrepresented to Gallo was the 2006 vintage.

via Law.com – 12 Convicted in Pinot Noir Fraud Scheme.

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Pennsylvania schools spying on students using laptop Webcams, claims lawsuit

February 19, 2010 By 1 Comment

A suburban Philadelphia school district remotely activates the cameras in school-provided laptops to spy on students in their homes, a lawsuit filed in federal court Tuesday alleged.

According to the lawsuit filed by a high school student and his parents, the Lower Merion School District of Ardmore, Pa. has spied on students and families by “indiscriminate use of and ability to remotely activate the Webcams incorporated into each laptop issued to students by the School District.”

Approximately 1,800 students at the district’s two high schools have been given laptops as part of a state- and federally-funded “one-to-one” student-to-laptop initiative.

Michael and Holly Robbins of Penn Valley, Pa., said they first found out about the alleged spying last November after their son Blake was accused by a Harriton High School official of “improper behavior in his home” and shown a photograph taken by his laptop.

An assistant principal at Harriton later confirmed that the district could remotely activate the Webcam in students’ laptops. “Michael Robbins thereafter verified, through [Assistant Principal] Ms. Matsko, that the school district in fact has the ability to remotely activate the Webcam contained in a student’s personal laptop computer issued by the school district at any time it chose and to view and capture whatever images were in front of the Webcam, all without the knowledge, permission or authorization of any persons then and there using the laptop computer,” the lawsuit stated.

via Pennsylvania schools spying on students using laptop Webcams, claims lawsuit.

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