Category Added in a WPeMatico Campaign
Hope You’re Not A Shy Pee-er: If you want to pass the bar exam.
NCBE Hoisted By Their Own Petard: In an effort to bring diploma privilege to Pennsylvania.
Well, This Is Wildly Inappropriate: A judge’s words to a victim of domestic violence.
Beware The Lengthy Footnote: Or this judge will send your brief back for edits.
No, this is not a column on the latest gizmos for controlling your television or air conditioner. Even though the newest generation of cable box remotes seem to have the same amount of buttons you would expect to see in an Airbus A320 cockpit. With voice control to boot, for those of us who prefer to proclaim “Yankees game” — at the risk of being diverted to AMC or Turner Classics’ latest showing of “A Magnificent Yankee” — over pressing in a channel number. While the debate over whether the increasing technological complexity of simple devices is a boon or a bane is an interesting one, for purposes of our professional lives as IP lawyers it is much more important to keep abreast of practice developments. For litigators, those developments have centered heavily on managing the impact of COVID-19 on pending cases.
For IP litigators, many of whom have far-ranging practices in terms of pending matters in different federal courts, keeping track of the new procedures and rules can be a challenge. Unlike lawyers who may focus their practice on proceedings before a particular court, in a particular geographic location, an IP litigator may find themselves needing to review the latest COVID-19 guidance out of the Southern District of Florida before lunch and the Eastern District of Texas’ before their afternoon tea and pastry. (Or pastries, for those for whom lockdown has coincided with a break in dietary discipline.) Add in what appears as a concerted (but understandable, and befitting their need to manage their personal dockets) effort among district court judges to make idiosyncratic procedural changes on top of the general guidance put out by their respective courts and it is a lot to keep track. But we must do so, while also looking for COVID-19 specific decisions that may be applicable to other situations that may arise in our practices.
It was interesting, therefore, to see the District of New Jersey’s Magistrate Judge Tonianne J. Bongiovanni endorse on August 12 a “Stipulated Order Governing the Taking of Remote Depositions” in a patent dispute between Takeda and generic challengers Zydus and Cadila Healthcare. In fact, Bongiovanni also signed off on a similar stipulation — on the same day — in another pharma patent case, this one between Boehringer Ingelheim and Lupin. Just because the Takeda stipulation is longer, we will focus on it for purposes of this column. Considering that the stipulation was signed off on by a judge with a lot of experience managing discovery in patent cases, on top of being negotiated by sophisticated patent litigants, there is a lot to learn from reviewing its key terms.
As an initial matter, it is explicit in the stipulation that the need for remote depositions is COVID-19’s fault, while also acknowledging that the regular rules of deposition procedure and evidence are not being tossed aside as a result. In that vein, the parties agreed that the stipulated procedures would cover all the remaining depositions in the case. At the same time, the order makes plain that adherence to whatever health guidelines are in place at the time of the deposition is a paramount concern. To that end, the stipulation sets forth the agreed-to provider for the remote deposition provider, as a means of leveling the technological playing field for each side. Importantly, it is acknowledged that any time spent dealing with any technological snafus will not count toward the witness-questioning time limits under the FRCP. To avoid those snafus, the parties agreed to do a “test run,” with a critical component of that test run being to make sure that the witness has the same technological tools to participate as the well-heeled lawyers attending the deposition.
What about costs? As is traditional, the taking party bears primary responsibility for getting the remote deposition set up and carried out, with the defending party on the hook for their own orders of the transcript and video copy. Considering the significant travel cost that many depositions in patent cases entail, there is at least a reasonable probability that the shift to remote depositions — even with the technological costs for setting them up and having them run smoothly — could result in a net cost savings for litigants. But any such savings would be a pittance, at least in the context of a pharma patent dispute, where cost is often no object.
Perhaps most interesting is the requirement that counsel and the witness abide by the honor system in terms of not sneaking a peek at the exhibits before the deposition. At the same time, it is not uncommon to ship exhibits in advance of a deposition to opposing counsel — and I at least have never had an issue where someone on the other side acted in anything other than an honorable manner with respect to exhibit handling. While the witness is obviously allowed to look at the exhibits as they are presented during testimony, looking at outside information sources (without the express permission of counsel) is verboten.
A typical source of conflict during depositions is the practice of coaching witnesses during breaks, even in those jurisdictions where the rules against such behavior are more strictly enforced. With a remote deposition, that becomes a bit more difficult to police, even as the stipulation calls for strict avoidance of anything that approaches witness coaching. During testimony, the stipulation forbids any communication with the witness. At breaks, defending counsel is allowed to talk to the witness, as long as it is in “the manner permitted” under local and federal rules governing conversations in between giving testimony.
Ultimately, both the first and last paragraphs of the stipulation convey the main thrust of the situation. Depositions are an important discovery tool and essential for trial preparation, but we are in the midst of a pandemic. At the same time, the accommodations that allow for remote depositions to proceed are not an excuse for any lapse in adherence to the “typical rules of professionalism and etiquette during depositions” by counsel on either side. While stipulations governing remote depositions can meet favor with judges, the allowances carry with them responsibility that counsel and litigants must adhere to. During COVID-19 it’s remote depositions yes, but the control over how they are handled remains with the court.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
Me, about 20 years ago, in my (most definitely not paperless) office (Photo by David Lat).
This coming weekend, my husband and son and I will return to Manhattan.
For the past four and a half months, since my discharge from the hospital on April 1, we’ve been away from New York, dividing our time between my parents in New Jersey and my parents-in-law in Massachusetts. But we feel that it’s finally time to come home.
Of course, we could certainly stay away for longer if we wanted to. My husband and I could continue working remotely, since our employers have not yet reopened their offices. Our son is not yet old enough to be required to go to school (and for kids who are, school reopening plans remain unclear).
And many of our fellow New Yorkers have decided that they will stay away for longer — much, much longer, like forever. These New Yorkers have decided that they are tired of being New Yorkers. If they’re not required to be in the city for work, and if many of the cultural and culinary attractions of New York are either still closed or only partially reopened, why put up with the difficulties, inconveniences, and high cost of city living?
I have previously written about how the coronavirus pandemic has made Biglaw more open to working remotely. Forced to go virtual, law firms have discovered that it’s not so bad — and even has its advantages. Lawyers who no longer have to commute have more time to bill; in my work as a recruiter, I’ve spoken to a number of partners and associates who have hit records in terms of monthly billing during the pandemic. And work is more tolerable when, say, you can take a break in the afternoon to play with your kid or jog on the beach.
So let’s play this out a little. Even after the COVID-19 crisis is behind us, law firms will be more tolerant of working remotely, and individual lawyers will increasingly expect — and even demand — the ability to work remotely (at least for part of the time, or for specified reasons). From the Commercial Observer:
In 2017, brokerage Cushman & Wakefield asked 500 law firms a question: Do you anticipate your attorneys will work more remotely in the next five years? Of the respondents, 62 percent said yes. The brokerage asked the same question in January 2020. This time, the figure jumped, with 78 percent responding yes.
And that was before a pandemic.
When the brokerage asked the question amid the coronavirus outbreak this spring, some 120 firms, large to small, responded — and 96 percent said yes, they anticipated their attorneys will work more remotely in the next five years.
Even before COVID-19, law firms were already moving in the direction of smaller offices. Post-pandemic, the trend will accelerate, as law firms try to reduce their real estate costs — one of the biggest expenses of a law firm — by taking advantage of the fact that more of their employees will be working remotely, for more of the time.
I suspect that some law firms will move to either “hoteling” or “hot desking,” two models in which employees don’t have their own set offices or desks. (In hoteling, you make a “reservation” for a space, like you would for a hotel room; in hot desking, it’s more “first come, first served,” where you grab an open space.) For example, check out what Freshfields has in store for employees in its new London office, as reported by Law.com:
Freshfields Bruckhaus Deringer lawyers face a new challenge when the firm completes its move into its new London office later this year. The firm is planning to operate an ‘office release system’ which means someone else can use your office if you are working remotely.
“If you’re not there, you give your office up,” said London managing partner Claire Wills of the office-wide rule.
The system, which will mean junior lawyers or colleagues from overseas can use a partner’s office if it is empty, will be a cultural change for the top U.K.-based firm…. However, [Wills] said that the pandemic has accelerated such cultural changes, with technology and paper-free working fast becoming the norm.
Note the reference to “paper-free working,” a key component of the equation. Lawyers previously justified having private offices, which they could lock when they left for the day, because of all the (often sensitive or confidential) documents in their offices. But now that those documents are largely digital, whether housed in servers or in the cloud, the case for proprietary desks and offices is much weaker.
And maybe that’s not a bad thing. Going paperless has forced me, a paper pack rat — see the photo of me in my office as a law clerk at the top of this post — to clean up my act. Today I can find documents much more easily, whether they’re on my MacBook or in Google Drive, than I could when they were in disorganized stacks on my desk. I suspect I’m not alone.
So far, so good. The ability for more people to work remotely, whether permanently or on as-needed basis — e.g., because you’re sick, your child is sick, or you have to wait for the cable guy (or gal) — seems like a good thing. The ability of law firms to spend less on office overhead also seems like a good thing. They can (and will) spend some of the savings on technology, of course — more telecommuting requires better tech — but some of the savings will surely find a way back to the pockets of partners, associates, and staff.
But here’s what worries me: the future of our cities. Consider this portrait of midtown Manhattan — the greatest agglomeration of major law firms in the United States, if not the world — from the New York Times:
Midtown Manhattan, the muscular power center of New York City for a century, faces an economic catastrophe, a cascade of loss upon loss that threatens to alter the very identity of the city’s corporate base. The coronavirus’s toll of lost professions, lost professionals and untold billions of lost income and tax revenue may take years to understand and resolve.
Now, midtown has never been the most charming neighborhood — the West Village it is not — so maybe some might say, “Good riddance.” But that ignores the economic toll that collapsing commercial centers and dying downtowns inflict upon the cities in which they’re situated.
If you’re in the mood to read something depressing and disturbing, check out this post by James Altucher, a longtime New Yorker. Here’s his response to the “New York comes back, it has always come back” argument:
[T]his time is different. You’re never supposed to say that but this time it’s true. If you believe this time is no different, that NYC is resilient, I hope you’re right….
[T]his time is different. One reason: Bandwidth.
In 2008, average bandwidth speeds were 3 megabits per second. That’s not enough for a Zoom meeting with reliable video quality. Now, it’s over 20 megabits per second. That’s more than enough for high-quality video.
There’s a before and after. BEFORE: No remote work. AFTER: Everyone can work remotely.
And, for better or worse, many people will. As more residents leave, no longer required to live in New York, it will become a less attractive place to live and work. New York and cities like it will lose their cultural cachet — they will no longer be where the “cool kids” live — and some people will leave for that reason. The remaining residents will face higher taxes, and some of them will leave too.
This coming weekend, my husband and son and I will return to Manhattan. Our (almost) 3-year-old son can’t wait; for weeks he has been saying, “Tomorrow we’re going back to New York City.”
We still believe in New York. We hope our belief is justified.
Earlier: What Good Might Come Out Of The Coronavirus Crisis?
David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.
(Image via Getty)
Ed. Note: Welcome to our daily feature Trivia Question of the Day!
According to data collected by Law.com for the 2020 Am Law 100 ranking, what is the only firm with revenue per lawyer over 2 billion dollars?
Hint: RPL at the firm blows other Biglaw firms out of the water at $3.329 billion.
See the answer on the next page.
The first week of Zoom school last spring, one of my own children changed his image to a black square with white lettering that said “Click here to end call.” Which is exactly what the teacher did, several times. Everyone laughed, even the poor teacher … eventually.
Because teenagers are assholes. And if being obnoxious were against the law, we’d have to throw all of them in jail.
But according to the Atlanta Journal Constitution, that’s exactly what the cops in Henry County, Georgia are threatening to do after reports of kids posting porn onscreen during remote classes.
“Students: If you stream pornography in an online class, myself and the Henry County GA Sheriff’s Office will find you and charge you with life-altering charges,” the original post read. “We’re 24 hours in, and I’m over it.”
It appears to have been edited now to include reference to specific Georgia statutes, before being removed altogether once the story hit the papers.
Luckily, the internet is forever.
How standard 9th grade dipshittery is transformed into “manufacture and distribution of child pornography charges, child molestation charges, and hav[ing] to register as a sex offender” is not entirely clear.
Georgia’s obscenity distribution laws are generally applied to commercial sale, rather than a 14-year-old holding his phone up to the webcam to flash a photo during math class. Law enforcement declined to elaborate on the “incident” currently under investigation by a Henry County Sheriff’s Office school resource officer. But if it involved the bog standard, consenting adult porn that’s never more than a click away, it’s not clear how the child pornography statutes might apply.
O.C.G.A. 16-6-4 criminalizes showing porn to kids under 16 “with the intent to arouse or satisfy the sexual desires of either the child or the person.” So being a little twerp trying to get a rise out of your classmates is probably not going to satisfy the mens rea requirement. And, by the by, the sex offender registry statute specifically states “conduct which is adjudicated in juvenile court shall not be considered a dangerous sexual offense.” So kids 16 and under specifically excluded.
But other than that, bang up legal work there, fellas! Zoom school sucks, but somehow the Henry County Police Department managed to make it even worse.
Cops say students are streaming porn during virtual class [AJC]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
As a profession, judges really aren’t known for letting the little things slide. Sure, every judge is different, blah, blah, blah, but they’re given wide latitude to make and enforce their own rules, and you’d best believe they’re going to take that seriously. Yes, even over something as seemingly minor as a footnote — if it’s important enough to have a local rule over, it’s surely important enough to enforce the rule.
That lesson is one the Department of Justice is learning the hard way. As reported by Law.com, Judge James E. Boasberg of the U.S. District Court for the District of Columbia has sent the DOJ back to the drawing board “for violating the court’s local rule on excessive footnotes, particularly given the length of the footnotes here.” The case was brought against the DOJ by the Citizens for Responsible Ethics in Washington, the National Security Archives, and the Society for Historians of American Foreign Relations over allegations the State Department failed to properly document policies in violation of the Federal Records Act.
The local rule isn’t specific on the exact number of footnotes or lines of text, saying, “All pleadings shall appear in 12-pt font and shall be double-spaced. Footnotes, which shall not be excessive, shall also appear in 12-pt font.” But after rejecting the DOJ’s initial filing over the amount of footnotes, they were given very specific instructions. They had to cut down the footnotes to “no more than five footnotes with no more than 25 aggregate lines of text.” Compare that with the original brief, which had 12 footnotes with 80 lines of text.
This isn’t the first (or even second) time Judge Boasberg has made a big deal over the length of footnotes. So, if you have a case in front of him, consider this your notice and footnote accordingly.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
We’re doing this from a position of strength. We could continue to lose money on this campus, but we’re doing this to shore everything up. It’s not like a fire sale. We believe for the future of legal education, one campus in Michigan is enough. We’re not in danger of closing. It’s just that we really need to plan for the future.
— Dean James McGrath of the Western Michigan University Thomas M. Cooley Law School, commenting on the decision to close the school’s Grand Rapids campus at the end of the academic year, due to a significant drop in enrollment with applications “way down” due to COVID-19. This is the second Cooley Law campus to close in as many years. The school closed its Auburn Hills campus last year because it was “undersubscribed.” With COVID—even though applications to law school are up slightly—the applications to us in the range of students we’re trying to attract is way down.” Per McGrath, “We ended up not laying off any people in Auburn Hills. I don’t think we’ll get that lucky in Grand Rapids.” This will leave Cooley Law with only its Lansing, Michigan, and Tampa Bay, Florida, campuses.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
As law schools return, one student gets a stern warning about a COVID kegger, law firms get a new ranking, and an unqualified judge issues the sort of baseless decision that landed him on the bench in the first place. A rundown of the week that was in legal news.
Judge Bruce Morrow of Wayne County, Michigan, is facing an ethics complaint, released last week by the Michigan Judicial Tenure Commission, which accuses the judge of violating judicial canons requiring judges be dignified and courteous and treat others with respect. The complaint details interactions with an assistant district attorney who asked the judge for feedback regarding her direct examination, in which he used sexually graphic language.
According to reports, during a June 2019 trial, the assistant prosecutor asked for feedback on her questioning of a medical examiner. Morrow allegedly said he’d come down from the bench to have the conversation “because what he was going to say to her would make her ‘blush.’” The complaint says the judge “positioned himself very close” to the prosecutor. He then analogized questioning witnesses to sex, according to the complaint:
“The climax of sex is akin to getting the medical examiner to state the cause and manner of death after getting the details of his examination of the body. … You start with all the information from the report, all the testimony crescendos to the cause and manner of death, which is the sex of the testimony. … You want to tease the jury with the details of the examination. … You want to lead them to the climax of the manner and cause of death.”
But that’s not the only inappropriate behavior detailed in the ethics complaint. Morrow also allegedly discussed with the assistant prosecutor, another assistant prosecutor, and defense counsel DNA evidence in the case which revealed the defendant’s DNA in a vaginal swab of the deceased victim, saying, “All you did was show they f- – -ed!”
When discussing the defendant’s testimony that the way he had sex with the victim was altered because she was pregnant and the defendant said he didn’t want to hurt the baby, Morrow allegedly said words to the effect of, “This guy must feel real good about himself to think his d- – – is that big.”
Morrow is also accused of criticism of the other assistant prosector’s voir dire with vulgar language to the effect of:
“If I want to have sex with a woman on the first date, how would I figure that out? I wouldn’t ask her if she wants family or children or what she does. I would ask her, ‘Have you had sex on a first date before?’ Would you sleep with me on a first date?”
According to the complaint, Morrow also “was overtly eyeing both of [the assistant prosectors’] bodies,” and asking them their height and weight. When one of them responded he allegedly said, “Well, I haven’t assessed your muscle mass yet.”