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    Summer 2018, "Oh, #&%@!"

     

    Discovery

    A Guide to Remedying Document Discovery Mishaps

    David Kessler, Andrea D’Ambra, and Susana Medeiros | The authors are with Norton Rose Fulbright, New York City.

    You can do many things to prevent mistakes that result in discovery problems.

    Discovery

    A Judge Comments

    Hon. Michael J. Newman

    A judge stresses the importance of maintaining the trust of the court when dealing with discovery mistakes.

    Features

    Columns

    Litigation & Trials

    Pro Bono Work: A Convergence of Present and Future Needs

    Koji F. Fukumura | The author is a partner with Cooley LLP, San Diego, and chair of the Section of Litigation.

    In an era where trials are becoming more and more infrequent, meaningful opportunities for our young lawyers to take a deposition, to argue a dispositive motion before a trial or administrative law judge, or to advocate before a court of appeals have become equally infrequent. And survey after survey of associate satisfaction lists the availability of and support for pro bono opportunities as a key metric of their satisfaction. These are critical reasons why actively engaging your young lawyers in pro bono makes sense right now.

    Latin America

    The FCPA Is Here to Stay

    Ronak D. Desai | The author is an international investigations attorney and India practice vice-chair at a prominent international law firm.

    Since its enactment more than 40 years ago, the Foreign Corrupt Practices Act (FCPA) has evolved into a formidable mechanism to combat global corruption. Following nearly two decades of relative dormancy, enforcement activity under the landmark anticorruption statute has experienced a steady but dramatic rise over the past 20 years.

    Discovery

    Border Searches and the Limits of Encryption in Protecting Privileged Information

    Steven G. Stransky | The author is senior counsel at Thompson Hine LLP, Cleveland.

    Do you encrypt your electronic devices before traveling abroad to protect sensitive or privileged information? Some of the more scrupulous attorneys among us do; they proactively encrypt their electronic devices containing privileged information to avoid the risk of intrusive searches by border patrol officers. But does this prevent sensitive information on your device from being reviewed by the authorities? Not fully.

    Permissible Prejudice

    Robert E. Shapiro | The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.

    It was a hushed courtroom as the lead witness began to detail step by step what had happened to her once she heard someone break into her apartment on the fateful night. “He approached me in the dark. I couldn’t really see his face, but he was wearing a grey hoodie and was maybe six feet tall and slight or thin. He grabbed me and turned me over and began stripping off my night clothes.” The silence in the courtroom was palpable.

    Headnotes

    Discovery

    Do the New Rules Lighten the Sisyphean Boulder?

    William Hamilton | The author is executive director of the University of Florida Law E-Discovery Project.

    In the darkest days of the Second World War, the French-Algerian Nobel Prize–winning writer Albert Camus wrote the existential manifesto The Myth of Sisyphus. This work teaches us that the absurdity of life requires that we—like the tragic Greek mythological figure Sisyphus—keep pushing the proverbial boulder up the mountain even though we must fall near the top and the boulder will come tumbling down. Life condemns us to perpetual failure and absurdity.

    Collateral History in the Interlocutory Making—Before Two Legal Titans Became Famous

    Richard A. Dean | The author is a U.S. magistrate judge for the Southern District of Ohio, Dayton, and a fellow of the American Bar Foundation.

    Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), is best known for its holding that a collateral order may be subject to an interlocutory appeal, even if it is not a “final order.” Lawyers and law students have been litigating the application of the Cohen test for generations now. But few realize the unusual crossroads of judicial and legal legacy the history of that case reflects.