by Lee Gesmer | Oct 8, 2008 | Courts
Two articles in the September/October issue of the Boston Bar Journal (pdf file on BBA site) are of particular interest.
In the first, entitled “Continuity and Change in the Business Litigation Session” Superior Court Judges Judith Fabricant, Ralph Gants and Stephen Neal discuss the Business Litigation Session (BLS) as this session approaches its eighth anniversary and continues its transition following the retirement of Judge Allan van Gestel, who ran the BLS for its first seven years.
Some interesting statistics cited in the article:
- The BLS (both sessions) takes about 300 cases per year. The court has approved 95% of applications for entry.
- In each of the two sessions (BLS1 and BLS2) there are fewer than 500 cases pending, as compared with over 800 cases in the other civil sessions in Suffolk County (on average).
As a reminder, links to the BLS Administrative Directives, “Formal Guidence” memos and Procedural Orders are here.
In the second article Federal Magistrate Judge Robert Collings discusses the “discovery saga” in the Qualcomm v. Broadcom patent case in San Diego. In that case it was discovered during trial that highly relevant documents had not been produced during pre-trial discovery. After trial, it was determined that over 300,000 relevant documents had not been produced. Needless to say, when that happens the “sugar hits the fan,” with awards of attorney’s fees and sanctions to follow.
Judge Collings is our federal district’s judicial e-discovery expert, and his commentary on this case (with his “analysis and lessons learned”) is essential reading.
by Lee Gesmer | Oct 7, 2008 | Courts
- Jurors like to be able to submit written questions during trial (who wouldn’t want that option?)
- Jurors like preliminary jury instructions from the judge (who wouldn’t want to be oriented on the legal issues in the case at the outset?)
- Jurors like interim statements by counsel, rather than waiting until the end of the case (who wouldn’t like to be told what’s going on at various points during a long trial, rather than have to wait until the end, when it may be difficult to remember the testimony of witnesses who testified weeks earlier?)
All of this, and a bit more, is in the Seventh Circuit Bar Association American Jury Project Commission Report.
Lets see, the commission was comprised of three co-chairs, a four-person Executive Committee, and fifty eight (58) lawyers and judges, mostly from Chicago, and took three years to generate its report. Wow, those commission meetings must have been great networking opportunities. The full two hundred page-plus pdf report is here (click at your own risk).
by Lee Gesmer | Oct 7, 2008 | Antitrust
At least one FTC Commissioner recently stated that he would support an appeal:
As I said earlier, I personally support a petition for certiorari in Rambus. I think the D.C. Circuit’s decision is wrong and given the fact that it rests on important legal principles respecting causation in Section 2 cases. I think its implications are much broader than the standard setting context. The petition is due in mid- November and it is my hope that the Solicitor General weighs in to support us on this important effort.
Section 2 and Standard Setting: Rambus, N-Data & The Role of Causation
J. Thomas Rosch, Commisioner, Federal Trade Commission, Oct. 2, 2008
Click here for an earlier discussion of the D.C. Circuit Court of Appeals’ decision in the FTC/Rambus litigation.
by Lee Gesmer | Sep 26, 2008 | General
. . . the Supreme Court can only decide a couple of patent cases even in a banner year. And, many important patent issues may be so obscure as to discourage its generalist judges from addressing them. The rest, necessarily, are left to us. We have the expertise and the will to resolve doctrinal problems. What we lack is mainly the opportunity. Why for example did it take a full decade to revisit State Street? Because no one asked us to until recently. The same can be said of the central issue decided in KSR. It was never simply presented to us in a petition for en banc treatment. Oddly, we receive over a hundred a year. Yet few raise such fundamental issues as eligible subject matter under §101, or the Teaching-Suggestion-Motivation test, or the proper methodology for assessing requests for the permanent injunction, or barring them, future damages.
Speaking at the Harvard Law School Conference On Intellectual Property Law, September 9, 2008.
Click here for full text of speech.
by Lee Gesmer | Sep 25, 2008 | Data Security
The department of consumer affairs and business regulation shall adopt regulations relative to any person that owns or licenses personal information about a resident of the commonwealth. Such regulations shall be designed to safeguard the personal information of residents of the commonwealth …
M.G.L. Chapter 93H: Section 2
Here is a link to the Executive Order signed by Governor Patrick on September 19, 2008.
The Executive Order applies to State agencies; the regulations apply to the private sector.
The regulations are of particular interest. They require private sector entities who keep personal information about individuals to meet “minimum” security standards for paper and electronic records. They apply broadly to “persons who own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts”. They require the creation of a “written information security program” which must be “reasonably consistent with industry standards.” The most minimal requirements of such a program are (to my eye) quite extensive (and burdensome). I think it is an understatement to say that the regulation and Executive Order will attract a great deal of attention and preparation between now and year-end, and will likely spawn a new (or expanded) industry of compliance consultants.
