Once upon a time, corporations, government departments, and other entities made their own decisions about how long to retain documents created or received in the course of business. Today, document retention policies can present difficult issues for the entities, for the lawyers who advise them, and for the courts that are called on to decide the consequences when documents are no longer available. Particularly in the electronic age, where computers die, people delete their emails, and backups are not always reliable, document retention cannot be counted on. What are an attorney’s obligations? Should a lawyer bringing suit write to the other side and warn that entity not to engage in normal document destruction and to back up particularly important data? Does the company being sued have to comply? These are some of the questions that the panel will address.
In-house lawyers may face particular difficulties. Does the lawyer represent only the institution, or does the lawyer also have obligations to the employees? Should the lawyer advise the employees to censor themselves in emails sent via the employer’s email system? Should employees be encouraged to communicate about work through their personal email instead? How does an in-house lawyer handle the conflicts between representing individuals who do not want to disclose discoverable emails for emails unrelated to ongoing litigation (perhaps because they made impolitic comments about their supervisors)?
Finally, the panel will discuss if there are special obligations for counsel representing government entities. Government records have a unique status. They document the conduct of public business and are necessary for transparency and, more formally, are subject to retention and preservation requirements. Should lawyers advise government clients that backups cannot be destroyed for years, contrary to current IRS policy? Should lawyers inform government employees that their personal emails, if discussing issues related to their work, may also be discoverable? How does the government’s duty of transparency to the public affect its disclosure obligations and the lawyer’s corresponding obligations to her client?
The Federalist Society's Professional Responsibility & Legal Education Practice Group presented this panel on "'The Dog Ate My Emails!': Document Retention Policies, Litigation Holds, and Legal Ethics on Saturday, November 15, during the 2014 National Lawyers Convention.
Ms. Jamie Brown, Global eDiscovery Counsel, UBS AG, and former Associate General Counsel, Commodities Futures Trading Commission
Mr. Daniel Epstein, Executive Director, Cause of Action
Mr. Patrick Oot, Partner, Shook Hardy & Bacon L.L.P., and former Senior Special Counsel for Electronic Discovery Office of the General Counsel, U.S. Securities and Exchange Commission
Mrs. Victoria A. Redgrave, Managing Partner, Redgrave LLP
**Due to technical difficulties, the first 20 minutes of this panel were not recorded.**
Success in today’s global economy virtually requires a college or post graduate degree, but colleges and law schools have raised tuition enormously. The government subsidizes students to take huge loans to pay for college and law schools, loans which inflict an increasing burden on students, including law students, in a troubled economy. Do these loans pay as much for faculty research and administrators as for direct student education? Are faculties producing research that justifies these costs? Are students getting a good deal now? Could or will on line education provide students with similar education at a fraction of the cost? Is it time to ask some hard questions about higher education? Does education policy benefit average and below average students or does it merely benefit the top of the class? This panel will focus to a significant degree on law schools.
The Federalist Society's Practice Groups presented this showcase panel on "Higher Education: Run for the Benefit of Students or Faculty or Administrators?" on Saturday, November 15, during the 2014 National Lawyers Convention.
Prof. Paul F. Campos, University of Colorado Law School
Prof. Daniel Polsby, Dean and Professor of Law, George Mason University School of Law
Prof. Richard Kent Vedder, Ohio University
Moderator: Prof. Thomas D. Morgan, (retired), The George Washington University Law School
United States Supreme Court Justice Antonin Scalia opened the 2014 National Lawyers Convention on November 13 at the Mayflower Hotel in Washington, DC. Justice Scalia discussed the importance of Magna Carta.
Hon. Antonin Scalia, United States Supreme Court
Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society
Exhibition at the Library of Congress Co-Sponsored by The Federalist SocietyNovember 06, 10:00 AMLibrary of Congress 101 Independence Ave., SE Washington, DC 20540
The Library of Congress will celebrate the 800th anniversary of the first issue of Magna Carta with a 10-week exhibition from Thursday, November 6, 2014 through Monday, January 19, 2015. The 1215 Lincoln Cathedral Magna Carta will be the centerpiece of the exhibition. In addition, there will be approximately 75 items from the Law Library of Congress and from various other divisions of the Library, which will tell the story of 800 years of Magna Carta’s influence on the history of political liberty.
The Library’s exhibition will demonstrate how interpretations of Magna Carta through the centuries led to the constitutional guarantees of individual liberty brought forth by the Founding Fathers of the United States. It will describe how a number of the most basic principles of the U.S. Constitution—consent of the governed, the right to a trial by jury, the right to due process of law, freedom from unlawful imprisonment and limited government under the law—can be traced to Magna Carta.
The Library’s exhibition also will celebrate the 75th anniversary of the Lincoln Cathedral Magna Carta’s first visit to the Library of Congress. After a six-month exhibit in the British Pavilion at the 1939 New York World’s Fair, the document traveled to Washington, D.C. In an official ceremony on November 28, 1939, Lord Lothian, ambassador to the United States handed Magna Carta over to Librarian of Congress Archibald MacLeish for safekeeping during World War II. The Library placed the document on exhibition until the U.S. entry into the war, when the Library sent Magna Carta to Fort Knox, Kentucky. The document returned to England in 1946.
Law Librarian of Congress David S. Mao said, "Through this exhibition we will celebrate the core tradition of the rule of law. While aiming to detail the enduring impact of Magna Carta over 800 years, our exhibit will illuminate its influence on our legal traditions and political thought while examining the unfolding story of the rule of law throughout the world. We look forward to taking a leading role in the American commemoration of the 800th anniversary of this legal treasure."
The exhibition curator is Nathan Dorn, rare book curator in the Law Library of Congress, and the exhibition directors are Cheryl Ann Regan and Martha Hopkins from the Library’s Interpretive Programs Office.
Additionally, the Library of Congress curated and provided materials for a facsimile traveling exhibition on Magna Carta for the American Bar Association (ABA). The exhibition opened at the 2014 ABA Annual Meeting in Boston and will travel across the United States for the next few years. In June 2015, the ABA Magna Carta Facsimile Traveling Exhibit will journey to England. For more information on ABA’s Magna Carta commemoration, visit www.facebook.com/abamagnacarta.
The tragedy of asbestos continues to play out. The ensuing litigation has no counterpart in our history. Over 10,000 companies have been named as defendants, leading to 100 bankruptcies (and counting). While the litigation continues apace, it has undergone radical changes from the 1985-2003 period, when millions of nonmalignant asbestos claims, mostly of asbestosis, surged through the civil justice system. U.S. District Court Judge Janis G. Jack painstakingly documented that the litigation screenings which had generated approximately 90% these claims were permeated with fraud. As stated by Judge Jack:
"it [was] clear that the lawyers, doctors and screening companies were all willing participants [in a scheme] to manufacture. . . [diagnoses] for money."
Malignancies, most especially mesothelioma and lung cancer, account for a substantial percentage of the billions being paid out currently. Because of the unique nature of asbestos etiology and bankruptcies, trusts with assets of approximately $30 billion have been created from the assets of reorganized companies to compensate current and future victims of asbestos exposures.
Asbestos claimants today have two separate sources from which to seek compensation: claims against the trusts and suits against solvent defendants in the tort system. In “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014), Professor Lester Brickman has examined the interplay between trust payments to claimants and tort claims. He presents evidence that plaintiffs and their counsel have routinely failed to identify exposures to the products of reorganized companies when suing defendants in the tort system even though they state, under oath, that the claimants had “meaningful and credible exposures” to the very products that plaintiffs have denied having exposed to in interrogatories, depositions, and trial testimony. Plaintiffs’ counsel steadfastly maintain that with a sole exception, there is no evidence that plaintiffs or their counsel have engaged in unethical or illegal conduct.
Recently, U.S. Bankruptcy Judge George R. Hodges, in In re Garlock Sealing Techs., 504 B.R. 71 (Bankr. W.D.N.C. 2014), found a “startling pattern of misrepresentation” “of exposure evidence,” thus sustaining Professor Brickman’s expert testimony in the Garlock bankruptcy. The committee representing the interests of plaintiffs and their counsel have appealed Judge Hodges’ Order.
The significance of Judge Hodges’ Order is yet to be determined. Already, Garlock has filed RICO actions against several of the law firms that obtained substantial payments from Garlock. Insurers and defendants are undoubtedly conducting investigations based on the revelations in Garlock and newly emerging evidence that may result in additional lawsuits being brought against plaintiffs’ counsel. If so, we may be entering a new era in litigation.
Prof. Lester Brickman, Yeshiva University, Benjamin N. Cardozo School of Law
Mark A. Behrens, Partner, Shook, Hardy & Bacon, L.L.P.