Hardly a week goes by without an insurance company, a big corporation, or one of their lobbying groups complaining about “the cost of litigation,” usually prefacing the word “cost” with hyperbolic adjectives like “soaring” or “exploding,” with the implication that, somehow, injured plaintiffs or their lawyers are to blame. Yet, whenever we see an actual example of a party engaging in absurd tactics to make litigation more costly and difficult, it always turns out that the defendant or their insurance company is to blame.  Although trial is typically the most expensive part of any case, the vast majority of cases settle, and so discovery is typically the most expensive part of most cases. (Earlier this week I turned in the updates for the Third Edition of our Pennsylvania Civil Discovery book, so discovery is on my mind.)

The railroad company Norfolk Southern, for example, spent over $250,000 last year funding non-railroad anti-consumer lobbying groups like the U.S. Chamber of Commerce, Business Roundtable, and National Association of Manufacturers, all of which have spent ample time decrying the costs of litigation and blaming trial lawyers for it.

Pannunzio v. Norfolk Southern, reported on by The Legal Intelligencer earlier this week, involves a train hitting a delivery van that was on the tracks. The driver sued the train company, alleging the train was going too fast, that the train didn’t sound a horn as it approached the crossing, and that the tracks were improperly designed, making it hard to see oncoming trains. The plaintiff’s claim as a whole is by no means simple –— they’re going to have to spend tens of thousands of dollars, maybe more, on experts testifying about how a railroad crossing should be designed — but the basic facts of the lawsuit are obviously quite simple, such as how fast the train was going and whether it sounded a horn or not.

Wouldn’t it be nice if there was, say, a camera on the train recording all that? 
Continue Reading Toot! Toot! All Aboard the Baloney Train!

At Electronic Discovery Law:

Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program.  Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce

Shepard Fairey, creator of the iconic "Hope" poster during Obama’s Presidential campaign, is not perfect.

After the Associated Press claimed that Fairey’s use of one of their images for the poster required authorization, Fairey — represented by the Fair Use Project at Stanford University — pre-emptively sued to establish (by way of a declaratory judgment

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) is, as I wrote before, the Tale of Genji for electronic discovery. It is as widely-cited as all but the most prominent of Supreme Court opinions.

Gregory P. Joseph brings us selections from Judge Scheindlin’s new magnum opus on the subject, Pension Comm. of

[UPDATE: In its ruling, the Third Circuit set forth the appropriate standard for sanctions and concluded the conduct was likely sanctionable, but refused to remand the case back to the District Court for further proceedings, thereby vacating the order while still criticizing the attorneys involved. The opinion is at Grider v. Keystone Health Plan

The Conglomerate catches a political bait-and-switch afoot in the TARP regulations:

After the hullabaloo about the $440,000 AIG retreat in October 2008, and news in January of John Thain’s $1.2 million office renovations, and the Citigroup plane fiasco, the luxury expenditures section of ARRA was inevitable.  The Act requires that the boards of TARP recipients adopt "a companywide policy

At The National Law Journal (via How Appealing):

In a case stemming from an employer’s theft of e-mails from the personal account of an employee who had sued him for sexual harassment, a panel of the 4th U.S. Circuit Court of Appeals recently became the first circuit to hold that plaintiffs must prove actual

EDD Update discusses the D.C. Court of Appeals affirming a contempt order against the Office of Federal Housing Enterprise Oversight (“OFHEO”) in In re: Fannie Mae Securities Litigation, 2009 U.S. App. LEXIS 9 (D.C. App. Jan. 6, 2009):

OFHEO handled the e-discovery very poorly, to put it mildly, and was held in contempt by

Slashdot led me to this erroneous article at The Industry Standard:

According to a recent legal filing (see page 7) in the Psystar vs Apple antitrust case, Apple employees are responsible for maintaining their own documents such as emails, memos, and voicemails. In other words, there is no company-wide policy for archiving, saving, or