Savvy owners – especially those with experience in litigation – know the importance of avoiding the growing variety of clauses that limit liability for construction industry vendors, writes Eric A. Grasberger of Stoel Rives LLP. Likewise, general contractors and architects need to be on guard against sub-tier liability waivers often lurking in the fine print or at the end of lengthy proposals.

“Owners are optimists and contractors are negotiators,” he writes. “Maybe this explains the increasing (and for owners, disturbing) presence of liability waivers in construction and design contracts.”

He discusses some of the clauses that should be considered carefully, including the consequential damages (CD) waiver, the limitation of liability (LOL), the warranty illusion, and options.

Read the article.

A Houston federal jury this week returned a verdict in favor of National Oilwell Varco, L.P., (NYSE: NOV), finding no wrongdoing in an employment discrimination lawsuit filed by eight African-Americans who sought $120 million in damages.

Houston-based NOV, an oilfield equipment supplier, argued that these employees were not treated differently because of their race. The jury heard 12 days of testimony in the trial before Judge Lee H. Rosenthal in the U.S. District Court for the Southern District of Texas.

The plaintiffs were represented by high-profile civil rights lawyer Angela M. Alioto of San Francisco’s Law Offices of Mayor Joseph L. Alioto and Angela Alioto in their claims of racial discrimination, hostile work environment and retaliation. Their lawsuit alleged that non-African-Americans received raises and promotions that were denied to the plaintiffs, in addition to claiming that racial slurs were frequently used in the workplace. However, the jury found that NOV had not violated the rights of the plaintiffs, seven former NOV employees and one current NOV employee.

NOV’s trial team was led by special trial counsel John Zavitsanos of Houston’s Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA.  He offered evidence that showed there were several non-discriminatory reasons some of the workers did not receive promotions, were not asked to return to their jobs after taking unauthorized leave or were fired for cause.

“NOV always has promoted a diverse workplace where discrimination isn’t tolerated,” says Zavitsanos. “This was nothing more than an attempt by a discrimination law firm to pull out a playbook that has worked in other cases in hopes of cashing in.”

Also representing NOV along with Zavitsanos were attorneys Monique Gougisha Doucette and Christopher E. Moore of Ogletree, Deakins, Nash, Smoak & Stewart’s New Orleans office. Assisting on the case was law school graduate Nathan Campbell, who is not yet licensed to practice law.

The plaintiffs in Vital, et al. v. National Oilwell Varco, No. 4:12-cv-01357, included former NOV employees Junious Vital, DeWarren Bellard, Damon Darby, Herbert Heard, Edward Jiles, Jerome Johnson, David Lane and current employee Billy Rose.

Common law judicial doctrines in almost every state discourage and restrict arbitration agreements covering personal injury or death claims, write Manton G. Grier and Marcus A. Manos of Nexsen Pruet. They see this point particularly regarding admission contracts to nursing homes or assisted-living facilities, which have superior bargaining power and may offer services on a “take it or leave it” basis.  The Federal Arbitration Act (FAA), on the other hand, encourages arbitration of claims.

“Because the arbitration laws stack the deck against a facility, there is no foolproof way to draft an arbitration agreement; what may be found enforceable by one judge may be found unenforceable by another,” they write. “With so many defenses available to plaintiffs, a bullet-proof agreement just doesn’t exist.  Nevertheless, there are five ways a facility can improve the odds that a court will enforce the agreement.”

Read the article.

Johnson & Johnson scored a defense win in a lawsuit over its Prosima pelvic mesh implant Oct. 5, after a Texas state jury ruled that the device was not defectively designed and that J&J subsidiary Ethicon’s risk warnings were adequate, reports Courtroom View Network.

“The jury reached a 10-2 verdict after beginning deliberations on Friday following a two-week trial during which attorneys for plaintiff Carol Cavness argued that J&J’s Ethicon unit knew the Prosima mesh was too stiff and could cause vaginal tissue to degrade, but failed to adequately warn patients and doctors of the risks,” the site reports. “Cavness, who is 60, had the Prosima mesh implanted in 2012 to treat a condition called pelvic organ prolapse, and claimed since then she’s suffered pain, infections and undergone multiple surgeries in an effort to remove the mesh.”

Read the story.

New Hampshire’s Supreme Court upheld a record $236 million judgment Oct. 2 against Exxon Mobil for its use of a gasoline additive that contaminated groundwater in the state, the Associated Press reports.

The original verdict came after a four-month trial in April 2013 when a jury found Exxon Mobil liable for contamination by the chemical MTBE.

A company spokesman said an appeal is under consideration.

“MTBE contamination has been found in New Hampshire because someone spilled gasoline in New Hampshire, not because it was added to gasoline in a refinery in another state,” spokesman Todd Spitler said. “The state should have sued the parties responsible for spilling gasoline, not the refiners who were compelled by law to add oxygenates to gasoline.”

Read the story.

Email discovery is at the nexus of high volume and low relevance. Businesses generate a tremendous amount of email that has to be sifted to find a relatively small number of useful communications. However, although email discovery is burdensome and expensive, it’s also necessary and important. Filtering using email domains is a cost-effective means of culling significant volumes of non-relevant email with minimal human review, reports QDiscovery. That reports follows:

What Is the Email Domain?

The email domain is the part of the email address that comes after the @ symbol. For example, in the email address photosubmissions @ wikimedia.org, “photosubmissions” is the local part and “wikimedia.org” is the domain. Sender and recipient email addresses are captured in the metadata fields FROM, TO, CC, and BCC. Thus, there is no added cost associated with using email domains for data filtering.

Culling Non-Relevant Messages

The eDiscovery vendor or litigation support staff managing the document database can export a list of all the unique email domains in the dataset. There are several possible approaches to reviewing the list and marking non-relevant- or alternatively, relevant- email domains.

First, a lawyer or paralegal on the eDiscovery team can look for generally known domains. Project managers and eDiscovery consultants are also a good resource in this regard.

Second, the custodians can be asked to review the list. Since they’re the most familiar with the content of their own mail they can make the most comprehensive review. A second advantage of this strategy is that it imposes no out of pocket costs on the client. However, it obviously does require the custodians’ full cooperation, which may not always be possible or practicable.

Lastly, in dynamic culling the list is marked up on a rolling basis by the document reviewers in the course of making the substantive responsiveness review.

All email addresses that share a certain domain (e.g., amazon.com) can then be batch-tagged as non-relevant and filtered out of the dataset. Occasionally reverse culling may be appropriate; under this approach, email addresses from relevant domains (e.g., the other parties to the case) are batch-tagged to be retained and all other domains are filtered out.

Email domains can easily be used to identify messages in obviously non-relevant categories such as:

– Online shopping and other commercial solicitations;
– Customer loyalty rewards programs;
– Travel-related websites and notifications;
– Professional associations;
– Newsletters, digests, and other mailing list alerts;
– Social media notifications;
– Spam.

In the same spirit, full email addresses can be used to identify and exclude communications with friends and family.

Using Email Domains for Privilege Review

Email domains can likewise be used to identify potentially privileged communications and segregate them for later privilege review. The email domain list is reviewed for outside counsel, consulting experts, eDiscovery vendors, and other litigation consultants. Tagging email domains is a safety net to catch messages from and to email addresses of people whose names didn’t make the search list, such as support staff and others with limited client contact.

As intellectual property licensing continues to grow more prevalent, legal practitioners and business personnel are being asked to craft and negotiate agreements that can significantly impact a business’s ability to compete in a particular field or market, according to an article posted by Farella Braun + Martel LLP.

Authors Eugene Mar and Erik Olson collect a number of best practices learned the hard way—through litigation of agreements and arrangements that went awry. “Whether negotiating a complex cross-license of intellectual property rights or drafting a supplier agreement, practitioners should consider the license provisions and practice notes discussed below to ensure that a party’s licensing objectives are met,” they write.

Read the article.

UBIC will present a roundtable discussion at the National Press Club in Washington, D.C., covering matters of big data privacy and international litigation.

The complimentary event will be Tuesday, Oct. 6, 2015, at the National Press Club at 529 14th Street NW. Registration/breakfast will be 8:30-9 a.m., and the discussion will last from 9 to 10:30 a.m.

Some of the topics will include:

• Market confusion in handling these matters
– What are the boundaries and best practices?
– Thoughts stemming from Sedona Conference
• Local considerations in assessing international projects
– Data management/geographic storage restrictions
– Privacy regulations
– Managing EU-base data
• Use of Technology Assisted Review (TAR)
– Data management protocols
– Collaboration
– Foreign Language/Translation
– Analytics
• Managed Review
– Defensible workflow
– Human element in technology use
• Impending FRCP rules

Discussion leaders will be Robert G. Kidwell, Esq., Member, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; and Wendy Butler Curtis, Esq., eDiscovery of Counsel, General Litigation, Orrick, Herrington & Sutcliffe LLP. The moderator will be Jeff Guttman, Esq., Vice President, Managed Review Operations, UBIC North America, Inc.

Register for the seminar.

Charles Sartain, writing in Gray Reed & McGraw’s Energy and the Law blog, uses a football metaphor to describe how a negotiating party could fail to score an enforceable contract while near the end of the negotiation process.

He describes a case involving the sale of a 2,232-acre Texas ranch and the sale of an oil and gas lease on the property. A broker agreed to sell the tract even though he didn’t have a brokerage agreement, and time was of the essence. During the process, the broker and the seller made offers and counteroffers about the commission and other benefits to the broker.

The appellate court found that a counteroffer operates as a rejection of the original offer, thus no agreement was reached.

Read the article.

In a case involving “clickwrap” and “signwrap” agreements, the Eastern District of New York denied a motion to dismiss and compel arbitration filed by an in-flight wifi provider, according to Buckley Sandler LLP in its InfoBytes blog and posted on JDSupra.

“At issue in the motion to dismiss was the enforceability of two separate agreements used to enroll customers, and in particular terms in those agreements related to mandatory arbitration and exclusive venue, which the defendant sought to invoke,” the firm wrote.

Plaintiffs argued that the agreements should not be enforced because the website design was intended deliberately to hide terms and were never seen or agreed to by them. The court denied the defendant’s motion to dismiss and compel arbitration, concluding that the agreement was unenforceable.

Read the article.

Keyword searching is one of the workhorses of eDiscovery. The first part of this series from QDiscovery covered responsiveness review, privilege review, targeted issue searches and more. The article picks up with the second part of keyword searches, starting with grammar.

2) Grammar – The second part of a good keyword search is constructing the search string by making the most effective use of operators, wildcards, and search parameters.

QD EDD Basics Keyword Searches Part 2

– Boolean operators – AND, OR, and AND NOT;
– Wildcards – * (multi-character expander) and ! (single character expander) at the beginning or end of a term;
– Nested searches – parentheses to “nest” or connect search terms, i.e., “(this OR this) AND that”;
– Fuzziness – an instruction to the search engine that some of the characters can differ from the term as written, which is useful in finding proper names with variant spellings as well as technical terms and other hard to spell words;
– Proximity parameters – within sentence, within paragraph, or within a certain number of words.

Search strings run the gamut from simple “this term or that term” searches to complex searches that draw on the full battery of technical options. While the basic “grammar” of a keyword search will be familiar to lawyers from searching in case law databases, it’s sound practice to work with an experienced project manager or eDiscovery consultant to build a complex search. An eDiscovery support professional can:

– Suggest keyword variants;
– Give advice on when and how to use operators, etc.;
– Collate multiple keyword lists to eliminate duplicates (overlap isn’t always obvious with complicated terms);
– Reconcile inconsistencies within the search string.

3) Validation – Just as no battle plan survives first contact with the enemy, no keyword search (should) survive first contact with the ESI. It’s important to review, analyze, and refine the keyword search in light of the results. Even more than in the second stage of building the search, a good project manager or consultant can provide invaluable assistance at the final validation stage.

a) Review a “hit count” report – The hit count report will provide the total number of documents that have hits on the search terms and also break out the number of hits per term. The total volume must be considered in light of whether it’s feasible to review the search results given discovery deadlines, staffing availability, and the budget for the review. If the data volume is still inordinately high after the keyword search is run, search terms with high hit counts should be evaluated to see if it’s possible to narrow them, such as by removing wildcards or adding a proximity search term.

In addition, search terms with unexpectedly low hit counts should also be scrutinized. Particular terms may need to be broadened by removing search limitations or reducing the fuzziness percentage. Overall low hit counts may indicate that the keyword list needs to be augmented.

b) Sample the search results – Analyzing the hit count report is most effective in conjunction with sampling the search results. For the terms with high hit counts, review a small sample of the results to determine if there are significant false positives. Draw the sample from a range of data sources (e.g., custodians, network folders) for a more accurate picture of the search results. Assigning unique color-coding to terms or concept groups of terms when the search is initially run will expedite this review.

c) Refine the terms – The final step is to refine the keyword search by adding, removing, narrowing, or broadening terms based on the review and analysis of the hit count report and sampling. It may be necessary to repeat the cycle several times before finalizing the search string. Any keyword search agreement made with opposing counsel should to take this validation process into account by including discretion to modify the search string or providing for a mechanism to revisit the agreed terms.

Keyword searching is one of the workhorses of eDiscovery, reports QDiscovery in an article on its website. The article continues:

Keyword searching sees heavy use in the areas of:

Responsiveness review – Substantive keywords are used to identify likely responsive documents in the collection dataset before the documents are given to the legal team for review or produced to the other side. Alternatively, keywords may be used in conjunction with Technology Assisted Review (“TAR”) to test the accuracy of responsiveness predictions or to flag key documents for manual review.

Privilege review – Although keyword searching has been losing ground to TAR as the go-to solution for responsiveness review, it remains the primary means for identifying privileged communications and work product. Privilege searches primarily target names (i.e., law firms, lawyers, paralegals, legal support staff, consultants, associated email domains). The secondary focus is on legal terms like plaintiff and defendant; click here to download a starter list of non-name privilege keywords.

Targeted issue searches – Keyword searching is useful throughout the life of the case for finding documents that relate to particular people and issues. For example, keyword searching is helpful in preparing for depositions by focusing on a deponent’s documents and communications about key topics.

Use of keyword searching in general is driven by two interlocking goals. The first is to improve review efficiency by narrowing the scope of review to documents most likely to be relevant. The second goal is to improve feasibility and cost-effectiveness of reviewing large volumes of ESI by culling non-relevant documents prior to the costly attorney review stage. While the first point applies equally to each of the three review areas, the second is most important for responsiveness review. The average volume of ESI has increased to the point that it is now impractical to make a linear (document-by-document) review of the full collection dataset even in smaller eDiscovery cases.

The three parts of a good keyword search are the keywords themselves, the “grammar” or construction of the search string, and validating the results.

1) Keywords – The three main sources for substantive keyword terms and phrases are the pleadings, the client, and opposing counsel. For illustration I’ll draw on my prior litigation experience in patent infringement defense work.

a) Complaint and Answer – A starter list of keywords is found in the pleadings. Between the allegations on their face and the lawyer’s experience with the legal subject matter, a list can be compiled of relevant names, fact allegations, and typical key terms. In a patent infringement case, obvious keywords are the:

Names of the parties;
Inventors’ names;
Other names listed in the patent, such as assignees and patent lawyers;
Patent number and last three digits of the patent number (e.g., “the ‘574 patent”), the common shorthand in the field;
Distinctive words and phrases used in the patent to describe the invention;
Product names of the alleged infringing products.
b) Client – In most cases it is the client that is most knowledgeable about the subject matter of the case. As such, the client is an invaluable resource for keywords like:

Product names of competitors’ products;
Project and product names used internally at the company during R&D and pre-launch marketing planning;
Industry acronyms and shorthand;
Product code numbers.
In many cases, the client will already have identified a small number of critical documents based on the allegations in the pleadings. Like the pleadings, these documents can be mined for additional keywords.

c) Opposing counsel – Whether to include opposing counsel in developing the keyword list is a strategic decision. The potential benefit is that an agreed list heads off later disputes over the search terms, as discovery fights tend to be both costly and a time-consuming distraction from the substantive issues. However, keyword negotiations may be fruitless or even create unnecessary work if opposing counsel is either unreasonable or unsophisticated about search methodologies or eDiscovery processes in general.

Assuming the proposed list compiled from the first two categories is already reasonably comprehensive, opposing counsel is most likely to add terms going to legal issues; for example, knowledge and state of mind.

Read Part 2.

Maureen Holland of D4, LLC has written a case study describing how expert consultants inexpensively applied analytics to find documents that would not have been found though traditional review and saved the client $134,955.

She explains that near-duplicate detection is an advanced analytics technology used to identify near-duplicate — or duplicate — documents based purely on textual content and then groups those documents together for review according to similarity.

In this case study, D4 used near-duplicate detection to compare key production documents gathered across similar matters against source ESI, in order to find the original, electronic versions of documents needed for review and production on a new matter.

Read the case study.

The Fourth Court of Appeals in Texas recently held that surface owners control the matrix of the underlying earth; thus, a surface owner can give permission to drill through the subsurface to an adjacent lease, reports Lauren N. Randle in The Energy Law blog published by Liskow & Lewis.

The case is Lightning Oil Co. v. Anadarko E&P Onshore, No. 04-14-00903-CV, 2014 Tex. App. Lexis 8673 (Aug. 19, 2015).

“According to the court of appeals’ decision, there was also no evidence that Anadarko would conduct a seismographic survey which could constitute a trespass under Texas law,” the article says. “Moreover, Lightning offered no evidence that Anadarko has bottomed or opened a well within Lightning’s lease. Absent proof of these actions and without the right to exclude Anadarko from drilling through Lightning’s mineral estate, Lightning’s claim of trespass failed.”

Read the article.

Hogan Lovells announcse that Peter H. Walsh will join the firm as a partner in the Litigation & Arbitration practice group, co-located in the firm’s Minneapolis and Denver offices.

Walsh joins Hogan Lovells from UnitedHealth Group (UHG), where he was Senior Deputy General Counsel and Chief of Litigation and Government Investigations. Before that he served as an Assistant United States Attorney in Denver.

“Peter’s significant experience as a public-company executive and government official and his proven ability to provide practical solutions to clients will be an invaluable asset to the firm,” said Dennis Tracey, head of Hogan Lovells’ Litigation practice for the Americas. “He is a strong and versatile litigator with true leadership skills and an extraordinary track record.”

During his eight-year tenure as a senior executive at UHG, a Fortune 14 international healthcare company, Walsh gained extensive crisis management and healthcare experience, the firm said in a release. He handled the most significant legal matters, including the largest stock-option backdating investigation in U.S. history, numerous congressional and government investigations and hundreds of cases ranging from regulatory enforcement proceedings to complex securities and healthcare class actions.

“Peter has earned tremendous respect in the Minnesota business community and beyond. He will be a valuable asset to our Minneapolis office and to our clients. I’m thrilled he’s part of the Hogan Lovells team,” said Norm Coleman, former Minnesota U.S. Senator and Of Counsel with Hogan Lovells.

As a prosecutor in the U.S. Attorney’s Office for the District of Colorado in Denver, Walsh obtained convictions in a variety of high-profile securities, tax, accounting, and other economic-crimes investigations and jury trials. Throughout his career, Walsh has worked closely with numerous federal and state regulators and law enforcement agencies, from the SEC, FBI and IRS to state Attorney’s General and local police.

“As a Minneapolis resident who spent nine years practicing law in Denver, Peter is well-equipped to collaborate with teams in both offices seamlessly,” said Cole Finegan, Hogan Lovells’ regional managing partner for the Americas as well as managing partner for the Denver Office. “His familiarity with the companies, challenges, and opportunities in both regions is truly unique.”

Walsh earned his B.A. in History from Middlebury College and his J.D. from Harvard Law School. He began his legal career in 1997 at Hogan & Hartson, which later became Hogan Lovells.

About Hogan Lovells

Hogan Lovells is a leading global legal practice providing business-oriented legal advice and high-quality service across its exceptional breadth of practices to clients around the world.

“Hogan Lovells” or the “firm” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP. For more information, see www.hoganlovells.com.

D4, LLC has posted an on-demand webinar that explores ethical duties of counsel to understand clients’ use of technology, to find the right ESI, and to negotiate scope effectively.

The webinar’s panelists discuss attorneys’ ethical obligation to understand their client’s use of technology, as it relates to investigation, preservation, and analysis of data during discovery.

Viewers will learn ethical considerations of:

• Competence to identify and filter the right information
• Negotiating a proportionate scope of discovery
• Supervision of lawyers, vendors, and staff
• Using technology to manage costs
• Balancing fairness with “zealous advocacy”

Watch the on-demand webinar.

A federal appellate court has denied Google’s breach of contract claim relating to assignment of the invention of an employee of another company, reports Dennis Crouch in the patent law blog Patentlyo.

An employee of a non-profit company developed a personalized information service – the subject of the patent that he filed – as an outside project. Later he sued Google for alleged patent infringement. Google contacted the developer’s employer and obtained a quitclaim deed over “any rights” in the patent held by company. Then Google argued in court that the developer had breached his employment agreement by failing to assign rights to the patents to his employer.

The alleged breach of contract was in the 1990s, so the statute of limitations came into play. But the site of the suit, Delaware, has a “discovery rule” that tolls any statute of limitations for the period in which an injury is “inherently unknowable.” The district court and the Federal Circuit found in favor of the developer, Crouch reports.

Read the article.

Two recent cases confirm that incorporation of AAA Rules into an arbitration agreement evidences an intent to allow the arbitrator to determine what issues are arbitrable — including arbitration, reports The National Law Review.

“The question of whether parties to a dispute have agreed to arbitration is often termed a “gateway” issue to be decided by a court, unless the parties agree otherwise,” the story says. “Both the Commercial and Construction Arbitration Rules of the American Arbitration Association expressly grant to the arbitrator “the power to rule on his or her jurisdiction.”

In one of the cases, Fremont Cmty. Digester, L.L.C. v. Demaria Bldg. Co., Inc., 2015 WL 3917635 (Mich. Ct. App. June 25, 2015), the court noted that the AAA Rules authorize the arbitrator to decide matters relating to jurisdiction. “The Court of Appeals affirmed, defining the central issues as whether the new claims were within the scope of the letter agreement, recognizing that contract interpretation is an issue for the arbitrator,” according to the Review story.

Read the article.

Lawyers with Gruber Hurst Elrod Johansen Hail Shank have recently scored big wins on the plaintiff side and the defendant side of the docket in civil litigation.

On the plaintiff’s side, the firm’s Trey Crawford was co-leader of the trial team that secured a $21.4 million civil damages award to a young woman who was sexually assaulted by the owner of a popular Addison restaurant. The bench ruling on behalf of the unidentified victim known as “Jane Doe” against the owner of Addison’s Pastazios restaurant received media coverage on multiple prints and broadcast outlets. To read the Dallas Morning News article, click here.

And on the defense side, the firm’s Orrin Harrison appeared in Law360 and in Texas Lawyer, which named him “Litigator of the Week,” commenting on the firm’s successful defense of Dillon Gage, a Dallas-based coin and gold wholesaler, against claims by the federal government that Dillon Gage fraudulently received more than $5 million from an Allen Stanford-affiliated company. Click here for the Texas Lawyer feature.

Zapproved has released its Third Annual Legal Hold and Data Preservation Benchmark Survey Report, the industry’s most extensive survey series focused on legal data preservation and collections practices, and the results show that processes still lack maturity.

More than 421 professionals dealing directly with litigation hold management participated in the Zapproved study.

One of the key findings shows that more than half of survey respondents still use manual processes for tracking litigation holds, and 3.5 percent communicate litigation holds verbally; nearly half of respondents now have a software system in place.

It also found that 34 percent of the survey respondents have had to defend their preservation efforts, a fact that underscores the importance of defensible processes. And 56 percent of respondents consider their organization to be “at risk” when it comes to legal holds.

The study also covers training in data preservation, benefits of automating the legal holds process, and more.

Download the complimentary report.