e-Discovery Cost Burdens Are In Flux
Companies can easily incur millions of dollars to recover and search backup computer tapes, and other computer media, to respond to an e-discovery request. A responding company can try to shift these costs onto the requesting party, but that has become harder. The trend of court rulings over the last few years has been to require the producing party to pay the lion's share of the e-discovery costs. <br>A recent federal court ruling bucks that trend. The decision by a federal magistrate judge in Chicago shows how a producing party can, under certain circumstances, shift most of the burden of paying for e-discovery to the requesting party.
Better Late Than Never
In response to the pervasive discovery of electronic information, and at the urging of the bar and the bench, the Standing Committee on Rules of Practice and Procedure recently published for comment several proposed amendments to the Federal Rules of Civil Procedure (FRCP). <br>This welcome proposal has been a long time coming. For years, litigants have struggled with discovering and producing electronic information. Many organizations have undertaken monumental efforts and incurred significant costs trying to meet unclear discovery obligations. Others settle merely to avoid the complex issue altogether. The lack of clear or consistent guidance in the FRCP and in well-developed case law exacerbates the issue, especially for large and medium companies that operate and litigate in multiple jurisdictions.
Cutting Costs In Discovery
Over the last 5 years, the costs of trying a legal case have skyrocketed. One cost that seems to have come from nowhere to rival the legal fees of attorneys is the often-unpredictable price of e-discovery. <br>Data are proliferating at an exponential rate, creating ever-greater volumes of documents to be reviewed, checked and indexed as part of legal discovery. Even a small company has a document-gathering and production expense that may rival the amount for the entire legal dispute. <br>Creative new efforts are crystallizing around reducing costs.
Pre-Nups: Estate Planning
When drafting and executing prenuptial agreements, the parties are generally concerned about protecting their assets and delineating their rights upon divorce. In addition to provisions in the event of divorce, however, careful attention also must be paid to the disposition of one's assets upon death. The provisions in the event of death may be particularly important where the assets to be protected were received from one's family or are comprised of a family business. Depending upon the circumstances, the death provisions of a prenuptial agreement may be used to negotiate more favorable divorce provisions for your client. Whether or not used in negotiation, any death provisions included in a prenuptial agreement require an understanding of complex federal tax issues, knowledge of state property law, and thoughtful drafting.
Covenant Not to Compete
When a business is sold, there is often an allocation of a portion of the purchase price to a covenant not to compete. While this allocation may be appropriate in the sale of a business, frequently the allocation is artificial and is a behind-closed-doors deal between buyers and sellers, driven entirely by tax considerations. Such allocations may have unwanted and unintended consequences for a divorcing party.
Pre-Nups and Trusts
Premarital agreements, commonly referred to as "pre-nups," are usually associated with celebrity marriages. Indeed, you'll likely hear someone ask after a high-profile marriage ends, "I wonder what their pre-nup says?" While most of us would like to learn the juicy details, it's important to remember that a prenuptial agreement does more than list who gets what.
Litigation
Recent rulings of interest to you and your practice.
Badmouthing May Lose You Custody in Connecticut
Several judges in Connecticut have deprived mothers of custody due to their vitriolic comments about the father. A woman recently lost temporary custody of her sons because, according to Judge F. Herbert Gruendel, her "incessant and completely unjustified vilification" of the father placed their younger son "in a condition of intense psychological turmoil."
The NLRB's 'IBM' Decision
The National Labor Relations Board (NLRB) recently held by a 3-2 vote that employees who work in a nonunionized work force do not have the right to have a co-worker present at an investigatory interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline.
