Category Archives: Judges

LTWC 2015: From LA to SF!

 LTWC 2015
Have you heard?  Big changes are afoot for Legaltech West Coast 2015:

  1. The dates are July 13-14, 2015
  2. It's relocated to the Hyatt Regency
  3. That's the Hyatt Regency…in San Francisco!

How accommodating of them to move it to my new city.  I didn't realize I had that much pull.  Actually, it was great news when I found out about it a few weeks back because in 2014, I had to skip the conference for the first time in years – and it was looking the same way for 2015.

Registration is open.  Mark your calendars…and see you there!

Did Mikey Like the New, Improved LTWC 2013? Day One…

Mikey Likes It!I've just returned from day one of Legaltech West Coast.  I'd hoped to attend both days this year because my Calbar LPMT colleague, Andy Serwin, presented the keynote this morning,  Alas, it wasn't meant to be…

Leading up to the conference, the meme was that this is the new, improved LTWC with the addition of, "The California Lawyers' Track".  Makes sense.  Depending on which statistic you consult, approximately 20-25% of the lawyers in the United States reside in California.  So, how did all this measure up to their most hard-to-impress critic, Mikey?

(It's me…it's me…I'm talking about ME!)

First of all, it not only makes sense, it's smart.  I'm the first one to admit that virtually all of the programs I present contain at least 50% Ethics content – not only because it's great as far as addressing educational issues that attorneys need to know -  but also because Calbar has a mandatory requirement that California attorneys attain four hours of specialty credit in Ethics every three years.  The specialty credits are notoriously hard to come by and it always results in higher attendance at my events.  I'm sure the gurus at LegalTech understand this factoid.  They also worked in our other specialty credit requirements: Bias & Substance Abuse.  However, three out of the four were presented on the final day
(incentive to entice California attendees to stick around for day two, LegalTech?  Well played…)

If you attended all specialty sessions over two days, you'd satisfy one-hour Bias, one-hour Substance Abuse and two-hours Ethics.  That's four out of a total of six hours required!

Advantage:  LegalTech

Ok, great; the potential is there.  But none of that matters if the programs aren't substantive.  Were they?  If you've been reading me for a while, you know I don't dole out compliments much, but I have to say that I found the content of the three sessions I attended to be excellent; and the final session of the day may have been the best I've ever attended at any conference.

Unfortunately, I was unable to get there early enough to see the keynote speaker, D. Casey Flaherty (and I regretted missing him even more after attending his program in the final session of the day – see below), so I started with "A Panel of Experts: A Candid Conversation".  Judges Jay Ghandi and Suzanne Segal (no relation) discussed the challenges brought by eDiscovery.  If you follow my Twitter feed, you saw the money quote from that session.

Mid-day, I went another direction.  Owen Byrd from Lex Machina was presenting on his article, "Moneyball for Lawyers: How Data and Analytics are Transforming the Practice of Law".  This was also the title of an article Owen wrote for our LPMT Committee publication, "the Bottom Line", which will be published in a week or two.  He showed us how they're using data in whole new ways to give attorneys every advantage in a case.

To end the day, it was back to the judges (or so I thought) with, "Judges' Panel: The Current State of the ED Market".  At first, I was disappointed because the "judges'" panel had only one judge, presenting via Skype.  That ended up working out just fine.  The live panel included one big firm eDiscovery attorney and the aforementioned Casey Flaherty, Corporate Counsel for Kia Motors America.  Here's the deal.  Mr. Flaherty walked us through the painstaking process he followed to procure the best eDiscovery vendors for Kia that he could find.  What did I think?  Read my assessment at the LexisNexis "Matters of Practice" Blog.

Well, that's a wrap for this year.  See you next year at LTWC 2014!

v-Discovery Insights: Robert Brownstone of Fenwick & West LLP Discusses his Top 3 Concerns in Data Security

Robert Brownstone has been my friend and colleague for many years.  In fact, he was Chairman of @CalBarLPMT two years prior to me.  We recently appeared on a panel together called, "Under Fire: Defending and Challenging a Motion against Technology-Assisted Review – A mock Meet and Confer (26f) hearing".  He played the role of the Plaintiff's attorney and I the Defendant's.  Robert was a late addition to my panel and I was delighted to present with him again!


eDiscovery California: USDC – Northern District of California – Publishes New ESI Guidelines

MP900400507This news is so important to me – and most likely, to you as well – that I actually dropped what I was working on so I could bring it to you asap!  I wanted to make sure you’re aware of the implementation of these new ESI guidelines, which took effect yesterday.  Here’s the press release, and here’s a direct link to the guidelines page which includes a checklist and model stipulated order.

eDiscovery California: Upcoming Panel: eDiscovery and Legal Technology in Practice Conference – San Francisco

I'm going to be on a roundtable panel at the Thomson Reuters 'eDiscovery and Legal Technology in Practice' Conference 2012 in San Francisco.  It's an all-day event, taking place on December 5th.  It's a terrific agenda; here's the scoop on my specific panel:

12:00pm – 1:10pm

Under Fire: Defending and Challenging a Motion against Technology-Assisted Review – A mock Meet and Confer (26f) hearing.


Nicole Armenio – Kroll Ontrack Solution Architect
Perry Segal – eDiscovery Attorney and Management Consultant, Charon Law
Hon. Socrates Peter Manourkian – Judge of the Superior Court, County of Santa Clara

It's entirely possible that by 1:00pm, the attendees will all be thinking about lunch…

Attack on Mobile Location-Privacy ‘Warrants’ Review

MP900302888I always chuckle when I hear people refer to California as the 'land of fruits and nuts' and loudly proclaim that it's a 'liberal state'.  I concede, the state is blue – at least when one examines it at surface level – but when you drill down a little further, it's not quite that simple.

Example?  As far as privacy is concerned, you'd have better luck in Ohio (State v. Smith)…

Based on two events that took place this week, it's clear that California (or more accurately, the Governor of California) and the Federal government appear to be in lockstep re their attitude toward location privacy; they don't believe you're entitled to it.

Politics?  Of course, that always plays a role.  Lack of understanding of technology?  Let me put it this way; a lot of the arguments I see in support of the position against requiring a warrant go something like this:

"People are aware that their cellular devices disclose their location and, therefore, have no expectation of privacy."  Yes – in the same way that people who drive cars know how to rebuild the engines.  It's a self-serving argument, at best.  For the average Joe, a more honest side-by-side comparison is that people know how to plug in a charger about as well as they know how to insert a gas nozzle.

If you're worried about location privacy, I have two words for you – coarse location.

You’re Gonna Need a Bigger Boat…


The Federal Judicial Committee has published proposed Model Jury Instructions (re "The Use of Electronic Technology to Conduct Research on or Communicate about a Case") [link opens 2-page PDF].  I honed in on the following language, to be given before trial and at the close of the case:  "I expect you will inform me as soon as you become aware of another juror’s violation of these instructions."

As well meaning as this language may be, is it a realistic strategy?  Never mind the fact that it's next-to-impossible to know what that person across the room is tinkering with on his or her smartphone.

As Roy Scheider (Brody) said in the 1975 movie, Jaws:


The Press: Shouting “Fire!” in an Empty Theater

MP900402060Forgive me for being missing in action the past week.  I had a rare criminal case come up at the last minute and spent the entire day in court, yesterday.  I was going to return with my summary of the Solo Summit, but due to the Supreme Court’s ruling on the Affordable Care Act this morning, I decided to lead with this post, which I’d already been working on.

First of all, fear not; this isn’t about politics.  I originally became interested in posting on this issue after the Da Silva Moore case.  For the first time, I saw our area of practice descend into the sensationalism that annoys me with news reporting in general.  Specifically, it had to do with the accusations that were flying regarding Judge Peck’s supposed conflicts-of-interest in the case.

The same thing happened this morning.  CNN reported that the individual mandate was struck down.  At that very moment, CNBC was reporting that it was upheld.  Now, anyone who has followed Supreme Court decisions knows that one cannot read a sentence or two and think they know what the ruling is without reviewing the rest of the text.

But CNN, more interested in reporting a story, rather than reporting the story, rushed out with the wrong information.  Nothing new.  But, I saw the same issues with the Peck case.  First of all, as attorneys, we hear ad nauseam that the law is a marathon, not a sprint.  Reporting on every brief filed as if, taken on its own it’s somehow relevant, is a mistake, in my opinion.

I only touched on the case briefly – after most of the dust had settled – and predicted (not exactly hard to do) that there would be appeals that would likely change the outcome.  It pretty much ended up being a tempest in a teapot.

What’s my point?  As attorneys, we should forget about being first and concentrate on being accurate.  There will always be deadlines, but I don’t want to see eDiscovery practice descend into an, ‘I’m going to post inflammatory, but incomplete information with the goal of luring your eyeballs to my blog/magazine/newspaper’ approach, especially when most of the writers were fully well aware that the rulings would likely not stand.

I don’t care if my blog remains a boutique – I’m interested in dispensing useful information, not provoking people to fight with each other.  That attitude serves no one.

The Bench: #California Judicial Council Kills ‘Tower of Babel’


Project:  California Court Case Management System

Number of Years in the Making – Ten

Number of Computer Systems Utilized State-Wide – 70

Initial Cost Estimate – $260 million

Amount Spent to Date – $560 million

Amount Still to be Spent – $8.6 million

Estimated Cost to Complete – $2 billion

Number of Counties Upgraded – Six out of 58

Cancellation Date – Tuesday, March 27, 2012

Effect on the California Court System – PRICELESS!

Case Got Your Tongue? Court Cases Aren’t Horse Races

MH900228831I understand we live in a ‘first-to-press’ world, and I further understand that – most of the time – it’s important to get a story out as soon as possible.  But, that doesn’t mix too well with judicial decisions.  In my view, you should treat them like a fine meal.

Allow some time to digest them.

So, this is why I didn’t jump on the predictive coding decision by Judge Peck in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012).  The odds were, it would be contested and it is being contested; in rather strong language, I might add.  A lot of that language is being directed at the alleged misconduct of Judge Peck, himself, among others.  I’ve seen Judge Peck speak.  Water off a duck’s back, I suspect.

As some of my colleagues would say, “That’s litigation.”