Thursday, December 07, 2006

The Court for the Correction of Errors of New York?

Many blawgs offer up to the minute analysis on cases being handed down. ABL, never one to conform for sake of conformity, will go the other way. ABL has dusted off an 1838 decision by the Court for the Correction of Errors of New York (a court that ABL had not heard of before coming across the decision). It is better than new, it is retro. Notably, the Court was comprised of a Chancellor and Senators.

Although subsequent decisions adopt this point of law, how often do you get a chance to cite to the predecessor of the Court of Appeals?

"The contract should not by implication receive an illegal construction. When a contract is capable of receiving two constructions, the one legal and the other illegal, it should receive that construction which would hold it legal." De Groot v. Van Duser, 20 Wend. 390, Lock. Rev. Cas. 398 (1838).

Friday, December 01, 2006

E-discovery amendments to FRCvP Effective Today

Not what ABL wanted for Christmas, but it will do. Actually, ABL would like to see the Rules Committee take some action on his proposal to amend Rule 4 (

In any event, these amendments will have a great impact on businesses, especially small and mid-sized business. Defendants tend to prefer federal court, but I think that the new ESI regime may compel business to prefer state court when they have the option. Large business (i.e. perpetual litigants) must ensure that record retention policies are reviewed and updated if necessary. ABL will discuss various aspects of the ESI ("electronically stored information") amendments in future posts.

The first change that jumps out at ABL is FRCvP 37(f):

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide [ESI] lost as a result of the routine, good-faith operation of an electronic information system." Sounds goods, but the ambiguity scares the hell out of ABL. What are "exceptional circumstances"? Although it sounds like a sufficiently high standard, it remains to be seen how it will be applied. Moreover, this suggests that there ARE circumstances in which a party MAY be sanctioned for routine, good-faith operation of the EI system.

Lawyer: Did I mention that the judge sanctioned your company?

Client: For what?

Lawyer: Your company copied over old back-up tapes during routine course of business and deleted old e-mails under its document retention policy.

Client: But that is the document retention policy that your firm drafted for my company!

Lawyer: I know, but the judge found that "exceptional circumstances" existed. What can I say, you win some, you lose some.

Client: Well, a lot of good that does me. What should I do to avoid future "exceptional circumstances" sanctions?

Lawyer: You could save everything, storage is relatively inexpensive.

Client: But do you know how many electronic documents the company generates in a year? We will have to purchase ten new servers a year to store the stuff that we no longer need.

Lawyer: Did I mention that our firm sells servers too?

Portrait Ceremony for Judges Elfvin and Curtin

Today the WDNY held a portrait unveiling ceremony for Judges John T. Elfvin and John T. Curtin, who have sat as federal judges for a combined total north of 72 years! Speeches were given by, inter alios, Dick Moot, Bob Conklin, Carol Heckman, and Charles Carra. Moot shared a story about the U.S. Attorneys' office when Judge Elfvin was an AUSA. Everyone in the office had a nick-name except Elfvin, who was known simply as "John" - not Jack or Johnny. Heckman shared a fond memory of Judge Elfvin, who welcomed her and her young children into his chambers for a visit and he sat on the floor with the children. Carra shared a story (unconfirmed at press time) about Judge Elfvin, who, after a good day at court asked Mrs. Elfvin "Peggy, how many great men do you think there are?" She replied "I don't know John, but certainly one less than you think!" The event was concluded with a wonderful rendition by the Accapellants (Judge Arcara noted that Judge Peradotto looks great in red - see 11/30 post below). They sang an adaptation of Billy Joel's "The Longest Time," in which they noted that Judges Elfvin and Curtin will be honored "for the longest time." It was a fine song that paid homage to the other Judges whose portraits grace Judge Curtin's courtroom. It was a great event for two beloved WDNY jurists.