More than 250 active and recently retired federal judges responded to a recent Exterro survey on how they would like legal teams to manage litigation/e-discovery processes in their courtrooms.

Exterro has made the report available from its website.

An example of the type of information revealed is that that 47 percent of the judges have taken an action to remedy e-discovery problems three or more times in the past year.

The report covers such topics as:

• What judges expect of the attorneys appearing before them
• How often and why judges issue discovery warnings and sanctions
• What judges consider the most important e-discovery/litigation practices

Download the report.

The Supreme Court of Texas recently ruled in favor of the Texas Windstorm Insurance Association (TWIA) regarding attorney-client privilege in a decision that can benefit insurance companies involved in litigation, reports Androvett Legal Media & Marketing.

The justices determined that attorney-client privilege extended to communications between a TWIA employee and counsel when the employee was serving as an expert witness for the company. The case involved a dispute between the city of Dickinson and TWIA.

Dallas insurance litigator Meloney Perry of Perry Law P.C. says the ruling is significant to Texas because it aligns the state with the federal rules on expert disclosure and production. She notes it also may be of particular benefit to insurance companies.

“This ruling means that underwriters, auto damage personnel and claims handlers may serve as experts without exposing attorney-client communications, even though they are employed by an insurance company involved in litigation,” said Perry. “One side benefit is this could cut costs from having to hire an outside expert.”

Perry says an insurance carrier employee designated with expert knowledge or who signs an affidavit attesting to certain expertise will not have to produce communications with counsel when Texas law applies. However, certain work product documents may not be protected.

“Work product is still subject to being produced, so parties will need to make the determination on a document-by-document basis. If the witness is provided an investigative report which is work product that may not be protected, but the email between the witness and counsel will be.”

Perry adds that if a federal question is being litigated in federal court, the attorney-client privilege is a question of federal common law. In state court and diversity cases filed in federal court, the attorney-client privilege is controlled by that forum’s state law.

Brown Rudnick LLP announced that William R. Baldiga will become chief executive officer and chairman of the firm’s Management Committee, effective upon the retirement of current Chief Executive Officer Joseph F. Ryan on March 15, 2019.

In a release, the firm said Baldiga takes the reins during a period of significant growth of such market-leading practices as white-collar defense, international arbitration and intellectual property litigation across its platform both in the United States and in its rapidly expanding offices in London and Paris.

“I am honored to be selected by our partners for this critical role,” said Baldiga. “I am looking forward to building upon the tremendous success that we have achieved under Joe’s leadership with a strong emphasis on delivering the partner-driven service, focused expertise and highly collaborative approach that we are known for – and that our clients expect.”

In addition to his new role, Baldiga will continue to represent public and private companies and committees of creditors and shareholders in major restructuring cases. “I plan to remain very close to our clients, soliciting feedback and identifying how we can refine what we do to provide greater value,” said Baldiga.

Most recently, Baldiga represented The Boston Herald in its chapter 11 case, and is perhaps best known for his groundbreaking interpretation of “cause” in restrictions on credit bidding in the Fisker Automotive case. He began his career at Brown Rudnick as a summer associate in 1982, and has taken on several leadership roles, including: head of the firm’s Litigation and Restructuring Department; and Hiring, Pro Bono and Diversity Committee Member.

Joe Ryan joined the Brown Rudnick in 1978 after a judicial clerkship. During his legal career he has represented debtors, creditors and creditor syndicates in complex public and private company restructurings. As Brown Rudnick’s CEO since 2003 he has led the firm through a period of significant growth, including the opening of offices in Paris, Washington, D.C. and Orange County, significant expansion of the firm’s offices in London and New York, and the development of leading practices in white collar, IP litigation and European finance and special situations. Under Ryan, the firm has prospered through turbulent economic times, including the global financial crisis, and through many changes in the legal industry, the firm said in the release.

“It has been a privilege to lead Brown Rudnick as Chairman and CEO,” said Ryan,” and I am so pleased Bill will succeed me. He is a bright, able, deeply experienced firm leader. He will be nimble and flexible in the face of change, and he understands that to deliver the highest value services to our clients requires that we foster an inclusive and collaborative work environment where every one of our lawyers can realize his or her full potential. I am sure the firm will continue to achieve great things under Bill’s leadership.”

John Olivieri and Patrick Sullivan have joined Barnes & Thornburg as partners in the firm’s Indianapolis office, practicing complex wealth management and corporate finance.

“We are very excited to welcome John and Patrick, two very experienced and successful lawyers, back home to Indiana to practice,” said Brian L. Burdick, managing partner of the firm’s Indianapolis office. “John brings a unique sophistication to wealth management that is unrivaled and Patrick brings a depth and breadth of sophisticated deal experience to this market that traditionally only resides in money center cities. We are proud to have a reputation of excellence that attracts these talented lawyers.”

A Wabash College graduate, Olivieri previously was a partner in the New York office of international law firm White & Case LLP. A Purdue University graduate, Sullivan previously was a partner in the Chicago office of international law firm Kirkland & Ellis LLP.

In a release, the firm said Olivieri advises high net worth individuals and families on complex estate and wealth management planning. Prior to joining the firm, he spent more than 20 years with law firms in New York, helping clients create and manage wealth management vehicles in many other states, such as Delaware and South Dakota.

The firm Olivieri works closely with clients to develop plans for securing and protecting their assets in various jurisdictions throughout the country and around the world. These plans involve the use of appropriate structures, such as limited partnerships, limited liability companies and so-called “asset protection” and “spendthrift” trusts. He regularly counsels foreign individuals making investments in the United States. A frequent commentator on estate and tax planning, Olivieri is active in various professional associations and is a fellow of the American College of Trust and Estate Counsel. He earned his J.D. from Columbia Law School.

The firm said Sullivan brings nearly a decade of corporate and finance-focused experience advising borrowers, financial sponsors, agents and lenders on crafting financing agreements designed to account for the company- and industry-specific needs of clients over the life of the financing facility. He has experience at two major international law firms headquartered in Chicago.

As part of his national practice, he has negotiated and closed transactions and advised clients from a diverse group of industries, including oil and natural gas, restaurant, energy, industrials, pharmaceutical, retail, technology/software, defense and healthcare, including issues related to the corporate practice of medicine.

The firm Sullivan represents financial institutions, private equity sponsors, debt funds and other non-traditional lenders and public and private companies in connection with leveraged financings, syndicated loans, second lien financings, unitranche financings, mezzanine financings, secured and unsecured credit facilities, asset based financing, working capital facilities, acquisition financing, bridge facilities, debt recapitalizations, workouts, debt restructurings, and other financing related matters. He earned his J.D., summa cum laude, from the University of Miami School of Law.

Trial law firm Ward, Smith & Hill, PLLC, announced that firm attorney Andrea L. Fair has been promoted to partner.

Fair, whose promotion became effective Feb. 1, handles intellectual property and business litigation. She serves on the firm’s trial team, participating in several phases, including picking the jury, directing and cross-examining fact and expert witnesses, and closing arguments. Fair routinely appears and argues at pretrial hearings while also helping teams prepare their cases and witnesses for trial, the firm said in a release.

“Andrea is an excellent trial lawyer,” said Johnny Ward, founding partner of Ward, Smith & Hill, a Longview, Texas-based firm. “She is truly an expert at her craft, and that talent is evident in the courtroom. I’m proud of her accomplishments.”

Fair joined the firm in 2016 after five years of handling complex commercial litigation in Houston, where she focused on patent infringement cases, construction disputes, insurance coverage and defense work. She was recognized in 2017 and 2018 on the Texas Super Lawyers Rising Stars list for her work in intellectual property and business litigation.

“I’ve enjoyed working with and learning from the talented team of litigators at Ward, Smith & Hill, and I’m excited about this new position and the responsibility that comes with it,” said Fair. “This is a firm that thrives on teamwork, always for the benefit of our clients.”

Fair is licensed to practice in all state and federal courts in Texas and the U.S. Court of Appeals for the Fifth Circuit. She is a member of the Gregg County Bar Association.

Fair is a graduate of the University of Texas School of Law and earned her undergraduate degree from the College of Liberal Arts at the same university.

A federal appeals court upheld about $8 million in damages Tuesday to the former general counsel of a Bay Area laboratory who was fired after telling company officials about possible bribery and records falsification by the lab’s employees in China, according to the San Francisco Chronicle.

Bio-Rad Laboratories fired general counsel Sanford Wadler in 2013, claiming poor performance. The company also claimed it found no evidence of wrongdoing by its employees.

The Ninth U.S. Circuit Court of Appeals on Tuesday found evidence to support the 2017 verdict by a federal court jury in San Francisco that Wadler had acted as a whistle-blower and was dismissed in retaliation for reporting conduct that he “reasonably believed” to be illegal, according to the Chronicle‘s Bob Egelko.

Read the SF Chronicle article.

A federal judge has ordered Tesla chief Elon Musk to explain by March 11 why he should not be held in contempt for what the Securities and Exchange Commission described as a violation of a settlement deal last year, reports the San Francisco Chronicle.

“Musk tweeted Feb. 19 that Tesla would make around 500,000 cars in 2019,” writes the Chronicle‘s Melia Russell. “Later that day, he sent a follow-up tweet saying that number represented Tesla’s ‘annualized production rate at end of 2019’ and it would only roll about 400,000 cars off the manufacturing line this year.”

Bloomberg explains that Tesla’s internal system to have an in-house lawyer vet Musk’s tweets didn’t work in this case because his “social-media minder didn’t bless” the Feb. 19 post:

The sitter — whose official title at Tesla is alternately Disclosure Counsel or Designated Securities Counsel — did step in after seeing the offending tweet and arranged to meet Musk to draft a clarifying post.

Read the SF Chronicle article.

Above the Law reports on a law firm’s breach-of-contract lawsuit against an associate who wants to leave the firm.

Senior editor Kathryn Rubino describes the suit filed by the Preis PLC law firm:

The firm recently sued Jane “Megan” Daily, a soon-to-be former associate leaving after a year at the firm. The petition alleges a breach of contract and damages — the firm says it lost $10,000 by training Daily for the year because “more experienced attorneys must take time away from other tasks to supervise and mentor new hires, further costing the firm significant lost billing time.”

Read the Above the Law article.

ContractWorks has published “The Contract Management Software Selection Guide” and made it available for downloading at no charge.

“As corporate counsel, it’s important that you understand the capabilities – and limitations – of contract management software,” the company says on its website. “This guide will help you determine if you need a solution and, if so, which option makes the most sense.”

The new guide discusses:

• If it’s time to upgrade your contract management system
• Which features you actually need to manage your contracts
• What to take into consideration before making a decision
• How to select contract management software
• How to choose the best solution for your company

Download the guide.

Michael Best announced that Victoria Lovato has joined the firm’s Litigation Practice Group as senior counsel in Denver. Lovato will focus her practice representing business, health care, and legal professionals in administrative and general litigation matters, specifically those involving licensing, regulatory, and disciplinary action.

“The Denver market is a growing epicenter for healthcare and wellness companies and organizations, and will remain a sector focus for our firm well into the future,” said Sarah Ehrhardt, Co-Managing Partner of Michael Best’s Denver Office. “We’re excited to have Victoria’s subject-matter expertise on our bench of talented litigators to help us navigate client’s concerns doing business here.”

Prior to joining Michael Best, Lovato was a Director at S&D Law, a position she held since January 2007. She also worked as general counsel to the Colorado Medical Board through the Colorado Attorney General’s Office earlier in her career.

Outside her practice, Lovato participates in several professional organizations, including as a Commissioner on the Denver Latino Commission and a member of the Colorado Bar Association’s Ethics Committee. She also serves on the Board of Directors for Goodwill Industries, and as a member of the Colorado, Denver, Colorado Hispanic and Colorado Women’s Bar Associations. In 2005, she served as President of the Colorado Hispanic Bar Association.

Lovato received her J.D., cum laude, from the Arizona State University College of Law, where she was Managing Editor of the Arizona State Law Journal, and earned her B.A. in Mathematics from Colorado College.

Chris Gokturk has joined Littler as a principal in its Tysons Corner, Va., office. Gokturk has more than 20 years of experience in compliance, enterprise risk management and statistical analyses.

“Chris brings a unique skillset in conducting risk assessments, analyzing employment data and advising on compliance with requirements enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP),” said Michael McIntosh, Littler’s office managing shareholder in Tysons Corner. “Her experience and insights will be invaluable for our clients, including those pursuing government contracts as they navigate an ever-evolving landscape of affirmative action regulations and anti-discrimination laws.”

Gokturk is a non-attorney consultant who specializes in helping employers understand and mitigate their systemic discrimination risks, and also in the development, implementation and defense of compliant and data-driven affirmative action programs. She consults on OFCCP compliance review process, implementation of applicant tracking and human resources information systems, talent acquisition, analyses of compensation data, performance management, diversity and inclusion metrics, workforce planning and restructuring, as well as the systems utilized to manage these functions, the firm said in a release.

“Chris has a strong technical understanding of the systems companies use to manage employees and how those systems communicate with each other,” said Littler shareholder Lance Gibbons, who previously worked with Gokturk. “She’s highly respected by her peers and clients, and her extensive experience advising on OFCCP matters, risk management and analyses of employment data compliments our OFCCP attorneys’ work and will further strengthen our capabilities in this area.”

“Littler’s leading role in leveraging technology and data-driven insights to help employers better manage their workforces, as well as its depth of experience counseling government contractors on affirmative action and OFCCP compliance issues, was a perfect fit for me,” Gokturk said. “I’m excited about the opportunity Littler’s platform offers in risk assessments, pay equity audits and statistical analyses of employment data.”

Foley & Lardner LLP announced that Bobby Sharma has joined the firm as special adviser to its Sports Industry Team. He will be based in the New York office.

In a release, the firm said Sharma joins Foley with nearly 20 years of sports industry experience, including serving as VP & General Counsel of the NBA Development League, as well as SVP, Global Head of Basketball & Strategic Initiatives at IMG. His work in the sports, media and entertainment sectors has involved professional sports development and management, finance, data and technology. Sharma is chairman of Blue Devil Holdings, an international sports, media and entertainment investment company, and recently co-founded the market-leading esports advisory firm Electronic Sports Group in partnership with esports pioneer Mike Sepso and former HBO Sports president Ken Hershman. ESG helps investment and business leaders navigate and operate in the burgeoning billion-dollar esports industry. Sharma is also partner at GACP Sports, a private equity firm focused on high-growth sports and entertainment assets, including in European football.

“Bobby and I were previously colleagues at the NBA, where we worked together to help establish and grow the NBA’s minor league system, including the evolution of its league and team structures, and their insertion points with NBA business and basketball operations,” said Jon Israel, vice chair of Foley’s Sports Industry Team. “As a highly-respected member of the sports business and legal communities, he is a valuable addition to Foley, and I’m excited to be working with him again.” Foley business partner, and former president and chief operating officer of Major League Baseball Bob DuPuy, added “Bobby’s unique and extensive global experience, in both traditional sports and esports, make him an impact player in the sports, media, and entertainment industry today. Our firm and Sports Industry Team clients will greatly benefit from his involvement and advice on their projects and issues.”

While at IMG, Sharma led the growth of strategic business interests around the world, including the creation, development and management of basketball, soccer and cricket properties – from grassroots programs and academies, to national teams and professional leagues in major emerging markets such as India, Brazil, China, Turkey, Africa and Asia-Pacific. He also managed IMG Media’s global sales and distribution business for Euroleague and FIBA basketball properties.

During his time at the NBA Development League, Sharma helped lead the establishment of the NBA’s first minor league. He had management responsibility for all league and team businesses, operations and legal matters, including franchise administration, broadcast, digital media, sponsorship, marketing, licensing, tickets, arenas, employment, anti-doping and security. Sharma was also responsible for all league and team agreements, rules, policies and procedures, as well as the integration of the minor league into the NBA Collective Bargaining Agreement. He handled a variety of corporate transactional matters for the NBA, WNBA and the NBA Development League, including joint ventures and other innovative sports transactions relating to the acquisition, financing and operation of franchises. Sharma also led the creation of the NBA’s first international league consulting business unit, according to the firm’s release.

In his role at Foley, Sharma will provide services to organizations, teams, leagues and other stakeholders across all professional and amateur sports on a range of subjects, such as league development and governance, team sales and acquisitions, media, sponsorship, licensing, data use and privacy, and technology, the firm said. His work will include a focus on the rapidly evolving business and legal issues in esports, involving its broad and complex range of stakeholders – including leagues and teams, game publishers, technology and software developers, investors, media distributors, sponsors, and merchandisers.

Peter C. Lando of Lando & Anastasi, LLP has been named co-chair of the Boston Chapter of the Licensing Executives Society (LES).

The Boston Chapter’s first event for 2019 will be a program on Licensing Technology from Universities and Non-Profits, to be held on March 13, 2019 in Cambridge, MA.

LES is a professional organization providing a forum for education and idea exchange on topics relevant to technology transfer and licensing. The Boston Chapter is one of more than 35 LES Chapters located in the USA & Canada.

Switzerland’s biggest bank hoped to settle a tax evasion case with French authorities for $204 millions. But when enforcers dismissed UBS Group’s offer, the bank’s legal team decided to play hardball, pushing the case to trial in the hope of wringing out a smaller penalty, according to a Bloomberg report. That effort failed spectacularly.

The bank has been ordered to pay more than $5 billion in the tax-evasion case — matching what was sought by prosecutors, reports Bloomberg’s Gaspard Sebag.

The article quotes Stephane Bonifassi, a Paris criminal lawyer not involved in the case: “It’s too early to draw any definitive conclusions given the appeals have just begun, but they took a risk in thinking they had a solid case and it’s clear now the strategy didn’t pay off.”

Read the Bloomberg article.

The Supreme Court has ruled that the Constitution places limits on the ability of states and localities to take and keep cash, cars, houses and other private property used to commit crimes, reports The New York Times.

Reporters Adam Liptak and Shaila Dewan explains that the practice, known as civil forfeiture, “is a popular way to raise revenue and is easily abused, and it has been the subject of widespread criticism across the political spectrum. The court’s decision will open the door to new legal arguments when the value of the property seized was out of proportion to the crimes involved.”

All nine justices found that the Excessive Fines Clause applies to the states under the 14th Amendment. Justice Ruth Bader Ginsburg wrote that the historical and logical case for the conclusion is overwhelming.

Read the NY Times article.

In two related cases, petitioners are asking the U.S. Supreme Court to strike down state generator subsidies that petitioners argue distort competitive wholesale power markets that are under the exclusive jurisdiction of the Federal Energy Regulatory Commission under the Federal Power Act, reports Verrill Dana in its Energy Law Update.

Associate Brian Marshall of Portland, Maine, explains:

Both cases concern “zero emission credits” (ZEC) schemes, one in Illinois and one in New York, that subsidize nuclear power plants. These ZEC subsidies allow otherwise uncompetitive nuclear plants to stay profitable and continue to operate, even if they fail to receive sufficient compensation in wholesale power auctions. Both the Second and Seventh Circuits have upheld the ZEC nuclear power subsidies.

Read the article.

While the rule denying the award of “punitive” or “exemplary” damages for breach of contract is subject to certain limited exceptions, it appears to enjoy wide-spread acceptance in most states and in virtually all common-law countries, according to Glenn West, writing in Weil, Gotshal & Manges’ Global Private Equity Watch.

But one of the well-recognized exceptions that can sometimes threaten to swallow the rule is that which permits punitive or exemplary damages anytime ‘the conduct constituting the breach is also a tort for which punitive damages are recoverable.’ And a ‘dog’s breakfast of tort-based fraud claims can frequently accompany a breach of contract claim.” West writes.

He discusses the case of Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, in which the Texas Supreme Court upheld the liability-limiting provisions waiving punitive damages, even for fraud.

Read the article.

International lawyers are often pushed by clients from common law countries (even more often by their in-house lawyers) to include common broilerplate contract provisions even in countries where they make no sense, writes Dan Harris for Harris Bricken’s China Law Blog.

He explains: “These people/lawyers are simply uncomfortable with contracts that do not include such terms. When we tell them that such provisions are not needed, their response is often, ‘well, it can’t hurt.’ But it can hurt.”

He discusses such Western-style contract staples as representations and warranties, effective date, counterparts, complete agreement, no oral modifications, good faith, headings and titles, third-party beneficiaries, and severability.

The article explains the potential drawbacks of using these clauses in contracts outside common law countries.

Read the article.

Addressing a bench trial decision concerning a former employee’s retention of confidential information and violation of a non-compete provision, the U.S. Court of Appeals for the Fourth Circuit found no abandonment of the employer’s breach claims, and concluded that while certain flowcharts contained protectable trade secrets, there was no breach of the non-compete.

In an article for McDermott Will & Emery, posted at JDSupra.com, Mary Hallerman describes the case of an employee who was subject to an employment agreement requiring him to return to his employer all work documents upon leaving the company. The former employee breached his agreement by retaining these documents after he left the company and misappropriated trade secrets, the plaintiff company alleged.

The Fourth Circuit found that the ex-employee had not breached the non-compete clause because his role at his new employer was not sufficiently similar to constitute a breach.

Read the article.

Legal marketers can take a cue from Japanese organizing consultant Marie Kondo, whose KonMari method essentially boils down to taking stock of everything you own and then eliminating whatever fails to bring you joy, writes Bruce Vincent of Muse Communications.

That means figuring out what you’re using to do your job and getting rid of anything that doesn’t help you accomplish your firm’s marketing goals.

He begins by extolling the virtues of lists, especially contact lists. He offers some tips about how to organize and maintain those lists of contacts for maximum efficiency.

The article also discusses the value of — and methods — of organizing and maintaining digital files. It ends with a plea for avoiding distracting clutter in an office, an approach Marie Kondo would heartily endorse.

Read the article.