Zapproved and General Counsel News recently presented a webinar on how to keep your scope, and custodian obligations, in check with FRCP requirements. The replay is available below.

It’s been nearly two years since the new Federal Rules of Civil Procedure went into effect. While they promised more reasoned scope of discovery by bringing proportionality and cooperation to the forefront, the reality may feel very different.

How are we doing — and how can we be better at negotiating a reasonable scope of discovery? Know your rights and responsibilities for responding to demands for electronic evidence. This session focused on the scope of custodians, keywords and retention policies.

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The Civilian Board of Contracts Appeals recently issued a decision in Turner Construction Co. v. Smithsonian Institution, addressing how a board should respond if the contracting parties cannot agree to a firm price for an undefinitized contract that a contractor fully performs, reports Lisa Markman for Bradley Arant Boult Cummings LLP.

The board is the federal administrative court tasked to resolve disputes between government contractors and federal civilian executive agencies,  she explains.

“The case was unique because Turner and the Smithsonian were supposed to have negotiated a firm fixed price contract during the design phase of the contract, but the parties failed to do so,” Markman writes. “This failure meant that the Smithsonian could not rely on ‘many of the safeguards and defenses that would have been available to it under a firm fixed-price agreement,’ including the contract’s equitable adjustment clause. Instead, the CBCA agreed with Turner and concluded that Turner was entitled to recover in quantum meruit.”

Read the article.

In an interview, Annamaria Porcaro, associate general counsel, contracts at Ascena Retail Group and winner of the General Commercial Individual of the Year award at the 2017 Global Counsel Awards, gives her opinion on what it takes to be a successful in-house counsel, the best way to advise senior leadership and what winning the award meant to her.

In the interview published by Lexology, she describes her role in the company, what led to to a career in-house, the most challenging situation that she has faced, what challenges in-house lawyers are likely to face over the next few years, when outside counsel is used, the essential qualities for a successful in-house lawyer, and what’s important for in-house counsel to consider when advising senior leadership.

Read the article.

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In a new article, Covington’s global cross-practice Digital Health team considers some key questions that companies across the life sciences, technology, and communications industries should be asking as they seek to fit together the regulatory and commercial pieces of the complex digital health puzzle.

In this installment in the three-part series, Covington’s team discusses the questions:

1. Will you own or have rights to use the data that is collected and generated, and any insights, models, and algorithms that are developed?

2. Do you have commitments from your suppliers to provide functions at service levels suitable for the health sector and designed to maintain patient/user trust?

3. When you are structuring strategic collaborations to develop and deliver a digital health service, have you taken into account uncertainties as to the ultimate composition of the service, its customers, and its reimbursement model?

Read the article.

An article on the website of Fisher & Phillips discusses the question: Will a noncompetition agreement be enforceable against the independent contractor?

The Eight Circuit recently addressed this question in Ag Spectrum Co. v. Elder. In that case, Ag Spectrum contracted with Vaughn Elder to work as an independent contractor and entered into a three-year noncompete agreement.

“Elder argued that the agreement was unenforceable under Iowa law. He argued that because he was an independent contractor the noncompete was unenforceable per se. The district court granted Elder summary judgment on this basis, and Ag Spectrum appealed,” according to the article.

“The Eighth Circuit affirmed but on an alternative basis. The noncompete was not unenforceable per se but it was unreasonable under the circumstances.”

Read the article.

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Amy Boardman Hunt of Muse Communications offers some advice on the best practices for publishing law firm newsletters, addressing some of the practical, creative and Bar compliance issues that should be considered.

Some of the questions she covers include: How will we send it out? How often should we send? What do we include? Who do we send it to?

She also discusses designing the newsletter, growing the subscriber list, tracking results, and maintaining contact.

Read the article.

President Donald Trump has a solution to stop football players from taking a knee in protest during NFL games.

“The NFL has all sorts of rules and regulations,” Trump said in a tweet this week. “The only way out for them is to set a rule that you can’t kneel during our National Anthem!”

But can NFL owners really do that? Yes, says noted Dallas employment lawyer Rogge Dunn.

“This is no different than employers prohibiting employees from smoking at the office or outside of the office,” said Dunn, a partner at Clouse Dunn LLP.

As reported on the website of Androvett Legal Media & Marketing, more than 100 pro football players defiantly knelt or locked arms before games on Sunday and Monday. Many did so following Trump’s harsh criticism at a campaign rally in Alabama late last week. He said in a speech:

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’”

While last weekend’s wave of protests were a show of solidarity against President Trump, former San Francisco 49ers quarterback Colin Kaepernick actually sparked the movement in 2016 by sitting on the bench during the national anthem to put a spotlight on the victimization of African-Americans by police.

Regardless of the cause, Dunn said more employers are regulating employees’ actions inside and outside of work.

“An employer can regulate employees’ actions at the office and outside, including limiting their political activities and firing them for speaking out or protesting,” he said.

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The Republican tax reform plan released this week proposes changes that are likely to make C corporation structures more appealing to U.S. business owners and investors, according to a post on the website of Androvett Legal Media & Marketing.

“The reduction of the top corporate tax rate from 35 percent to 20 percent could certainly lead to a renewed interest in C corporations,” said Dallas tax lawyer Nathan Smithson of Jackson Walker LLP. “An investment in a corporation is subject to two levels of federal income taxation – once at the corporate level, and then again when a distribution is made out of the corporation to the investor. The proposed 20 percent corporate tax rate would make this investment far more palatable.

“The plan also lowers rates for partnerships and LLCs. However, investors and business owners who do not want to subject themselves to the more complex partnership tax rules – including paying taxes on their share of entity-level income – may now want to convert their entities to corporations,” said Smithson, who advises corporations, LLCs and partnerships on federal tax planning.

“An original investment in stock of a qualifying small business corporation can be sold tax-free if held for five or more years. A drop from a 35 percent to a 20 percent rate may make this type of investment a no-brainer for investors looking to minimize their overall taxes on corporate income.”

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Jim Fortosis, a member of Grant Thornton LLP’s Risk, Regulatory and Legal Affairs team, has received a First Chair Award for excellence in legal counsel.

First Chair, an organization designed to bring together a community of accomplished attorneys in private practice with those that are in-house counsel, hosts the First Chair Awards annually and asks private practice attorneys to nominate their in-house peers for a variety of honors such as top general counsel, top litigation counsel and more.

Fortosis, who serves as senior counsel, is a recipient of the 2017 Rising Stars award and was recognized for his efforts in managing litigation and regulatory matters involving Grant Thornton and counseling firm professionals on legal, compliance and risk management issues.

“For a firm like Grant Thornton to succeed, we must have a legal team that can effectively navigate an increasingly complex legal and regulatory environment,” said Ken Cunningham, chief legal officer of Grant Thornton LLP. “This recognition is yet another testament to his keen ability to manage and swiftly resolve legal issues while also being a consistent source of valued legal counsel for our firm.”

With more than nine years of legal practice, Fortosis was an associate at Sidley Austin LLP in Chicago prior to joining Grant Thornton. He received his juris doctor degree from the University of Chicago Law School and his bachelor’s degree in political science from Wheaton College.

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Commercial litigation attorney Hunter Polvi has joined Dallas trial law firm Sayles Werbner. Polvi joins the firm from Waco, Texas, with five years of experience in the areas of personal injury, products liability, wrongful death and business disputes.

“Hunter has a focus and determination that we want on our side,” says the firm’s co-founder Richard A. “Dick” Sayles. “He has valuable experience in federal and state court, and we are glad he has joined our team.”

In a news release, the firm said Polvi has represented more than 100 clients affected by the deadly 2013 West, Texas, fertilizer plant explosion.

The release continues:

As lead counsel, he has handled partnership disputes involving a Texas coffee company and a medical device sales company, as well as tort and insurance matters involving casualty storm damage, car accidents and property conversion. Mr. Polvi also represented clients in cases of Deceptive Trade Practices Act violations for fraud and breach of warranty.

“Sayles Werbner is a law firm with a successful trial track record,” says Mr. Polvi. “I’m excited to join this talented group of attorneys and look forward to protecting the rights of those who have been wronged by the negligent actions of others.”

Mr. Polvi is a member of the Dallas Association of Young Lawyers and the Texas Trial Lawyers Association. In addition to his legal background, he is a licensed private pilot, an Ironman triathlete and a former volunteer firefighter.

He graduated from Baylor Law School as valedictorian of his class and has an undergraduate degree from The University of Texas at Austin.

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Zapproved LLC, a developer of cloud-based e-discovery software for corporate legal departments, has released the results of a groundbreaking survey revealing the common attitudes held by e-discovery executives — and how those beliefs are influencing behaviors, processes and priorities.

The Three Archetypes of Corporate E-Discovery report identifies three leadership types — proactive Achievers, reactive Strugglers and disinterested Idlers — and breaks down how each archetype’s attitude impacts success, from confidence in the defensibility of their preservation process to their standing within the organization. As legal professionals face increasing risk management, regulatory and process visibility demands, the ability of in-house leaders to self-identify their tendencies provides an important starting point for organizational evaluation.

“The survey data demonstrates compelling connections between leadership attitude and satisfaction in the business results. Forty-three percent of Achievers conduct regular legal hold compliance audits as opposed to only 5 percent by Strugglers,” said Brad Harris, Vice President of Corporate Strategy for Zapproved. “Achievers are significantly more likely to have implemented e-discovery best practices across their organization to improve compliance and reduce risk.”

While Achievers invest effectively in the legal hold and preservation process, Strugglers are defined by their failure to implement effective solutions. This group understands the benefits of automating these functions in-house, but they grapple with establishing a successful process, typically being reactive in their response. Idlers, on the other hand, tend to be ambivalent to e-discovery needs rather than strategically implementing systems to solve them. While Idlers display confidence in their approach, they face a knowledge gap about the benefits of in-house e-discovery processes and risk losing control of data that is outsourced.

“This survey is the first of its kind for corporate e-discovery professionals. It offers a unique vantage point on how to evaluate existing in-house processes and strategies,” said Harris. “As people identify their own archetype, Strugglers and Idlers may end up using these findings as a means of moving into the Achiever category.”

The report finds that 50 percent of Strugglers identify as using a manual legal hold process, but only 29 percent express confidence in the defensibility of their process. As the volume of data grows exponentially, implementing e-discovery best practices requires a vigilant evaluation of the tools and trends that affect a company’s bottom line.

The survey was conducted by an independent research organization, Audience Audit, in May of 2017. The approach focused on two areas: legal hold and data preservation processes and the attitudes of the surveyed e-discovery professionals. Participants were chosen based on their involvement in the legal hold process with 75 percent working within the legal department at their organizations.

Download the report.

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Buchalter announces that Willmore (Bill) F. Holbrow III has joined the firm as a shareholder and member of the Intellectual Property and Litigation Practice Groups in Los Angeles.

Holbrow’s practice focuses on intellectual property litigation with an emphasis on patent, trademark, copyright, and trade secret matters. He works with clients in a variety of industries including those involving medical devices, apparel, chemical compounds, software, furniture, internet-based applications, LED technology, locks, wheel designs, and electronics.

“Strengthening our intellectual property litigation capabilities has been a focus of ours for quite some time,” said Adam Bass, President and Chief Executive Officer of Buchalter.” “I am so pleased to welcome Bill as we continue to strategically expand, and we are excited that his practice further enhances the legal services we offer our national and international business community clients.”

Prior to his experience in private practice, Holbrow served as an engineer in the Air Force and a first-chair trial attorney in the Air Force Judge Advocate General’s Corps handling numerous felony level cases. He attended Loyola Law School and Suffolk University Law School, where he earned his JD, and graduated from the University of California, Los Angeles with a BS in Mechanical Engineering.

“My intellectual property practice fits perfectly within Buchalter’s extremely talented Intellectual Property and Litigation teams,” said Holbrow. “Additionally, I am eager to introduce my clients to the benefits of the firm’s full-service platform.”

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Michael Best announces that Jonathan L. Gold has joined the firm’s Washington, D.C. office as a partner in the Litigation Practice Group. He will focus his practice on complex financial restructuring matters, as well as creditors’ rights litigation.

“Jon is a talented attorney, and we jumped at the opportunity to bring him on board,” said Ann Ustad Smith, Chair of the Banking & Financial Services Practice Group. “His more than 20 years of experience in creditors’ rights and complex financial restructuring matters will strengthen our Creditors’ Rights, Bankruptcy and Workout team.”

Gold joins the firm from LeClairRyan, where he was a member of the firm’s bankruptcy practice group. In addition to creditors’ rights and restructurings, he also has experience with bankruptcy litigation and state court litigation in the Virginia, Maryland, and District of Columbia courts. His clients include official committees of unsecured creditors, secured lenders, purchasers of bankruptcy estate assets and bankruptcy trustees in the automotive, real estate, construction and retail industries, among others.

“Jon has deep ties within the local business community and is a highly regarded litigator in the region, which will certainly bolster the office’s business development efforts,” said Kevin M. Barner, D.C. Office Managing Partner.

Gold earned his J.D., magna cum laude, from the University of Baltimore School of Law where he was an Associate Executive Editor at the Law Review, and his B.S. from the University of Maryland-College Park, College of Business and Management.

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A tree trimming company has been handed the largest penalty imposed in a United States immigration case, totaling $95 million, after pleading guilty to employing illegal immigrants, the U.S. Attorney’s Office said.

Reuters reports that Asplundh Tree Experts Co., which trims trees and clears brush for power and gas lines across the country, hired employees who provided fake identification documents from 2010 to 2014, the U.S. Attorney’s Office in Philadelphia said.

The prosecutor said the company’s managers were “willfully blind” as supervisors and foremen hired illegal immigrants, writes Brendan O’Brien.

Read the Reuters article.

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The Associated Press is reporting that two attorneys with a prominent Alabama law firm and a coal company executive have been indicted on charges of bribing a state legislator to oppose an environmental cleanup plan, federal court documents showed Thursday.

Two partners in prominent Alabama law firm Balch & Bingham have been placed on indefinite leave after named on charges including conspiracy and bribery. They are Joel Gilbert and Steven McKinney, both of whom handled environmental litigation for the firm.

AP reporter Jay Reeves writes that Drummond Co. vice president David Roberson, 66, was charged with the same crimes.

“The three are accused of bribing former state Rep. Oliver Robinson, who pleaded guilty earlier this month to accepting $360,000 in payments,” according to the AP report.

Read the AP article.

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When The Wall Street Journal broke a story about the firing of PepsiCo Inc.’s general counsel, the newspaper had some inside information: someone at WilmerHale accidentally sent a privileged memo about the case to the publication.

Above the Law recounts the story of how the memo, discussing a subpoena whistleblower/GC Maura Smith received, was sent to a group of lawyers — and the Journal.

Writer Joe Patrice speculates that “someone’s inline autocomplete got the better of them.” He also has some tongue-in-cheek advice for WilmerHale: call the whole thing fake news.

Read the Above the Law article.

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Conga has published The Ideal Buyer ‘s Guide to CLM, to help users learn more about the steps to take to identify the ideal contract management platform for an organization.

“You’ve already heard about the tremendous ROI and impressive time to value that a contract management platform can offer your organization: a good CLM (Contract Lifecycle Management) solution can provide overall ROI of 150-200% in one year,” Conga says on its website.

The free e-book includes a sample template listing key functionality and features every full CLM should have. It also features sample questions you should ask vendors during their software demonstrations.

And it takes a look at features such as:

• Customization and flexibility
• Document management capabilities
• Improvements in visibility
• Integration capacity
• eSignature capabilities

Download the e-book.

Exterro has released a new guide titled “Rule 26(f) Meet & Confer Checklist: How to Be Prepared.” The guide can be downloaded from Exterro’s website.

Preparation is key for any meet and confer conference to be successful, the company says on its website. This checklist can help a practitioner ensure you’re adequate preparation to negotiate and identify reasonable e-discovery terms within any meet and confer.

The guide includes:

• 39 Questions you must ask your legal team and your opponent before and during meet & confer
• A list of questions that will help you negotiate e-discovery parameters that are proportionate and reasonable
• Reassurance that all the necessary e-discovery questions are asked every time for every matter

Download the guide.

Former general counsel for PepsiCo Inc. Maura Smith is now the focus of an investigation by the SEC after she claimed she was fired in retaliation for the way she handled earlier internal probes concerning allegations of wrongdoing in Russia, according to a report at TheStreet.com.

The Wall Street Journal originally reported on the investigation.

Smith was Pepsi’s general counsel for little more than a year, until June 2012, when she was tasked with overseeing outside lawyers the company hired to investigate business practices with Wimm-Bill-Dann, a Russian dairy product and juice maker Pepsi acquired for $5 billion in 2011.

Read TheStreet.com report.

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Bloomberg is reporting that top-tier college basketball programs were thrown into turmoil Tuesday as federal prosecutors unveiled criminal charges against 10 coaches, managers, financial advisers and representatives of sportswear companies including Adidas AG, accusing them of making illicit payments to cash in on the vast riches generated at the sport’s highest levels.

“The alleged schemes include illicit payoffs to steer young athletes to powerhouse schools and into clothing contracts and financial advisory deals,” write Christian Berthelsen and Bob Van Voris. “Among those charged were current and former coaching staff members at Oklahoma State University, the University of Arizona, the University of Southern California and the University of South Carolina.”

The case followed allegations that an executive at an apparel company bribed students to attend universities where the company sponsored athletic programs.

Read the Bloomberg article.