Just another trip around the news this morning.
In an interesting and much-more-thorough-than-usual opinion, a judge partially absolved outside litigation counsel of discovery misconduct… and smacked the defendant itself instead. Judge Scheindlin held that although both outside litigation counsel and inhouse counsel could, and probably should, have done more to ensure that e-mail was not destroyed "routinely," the fault rested with the client. While "diligent action on the part of counsel would have mitigated some of the damage caused by UBS's deletion of e-mails, UBS deleted the e-mails in defiance of explicit instructions not to." As a sanction, she will give a jury instruction at trial that the jury may assume that the destroyed documents would have hurt the defense and force the defendant to pay the cost of "makeup" discovery. What is really saddest about this case is that it's a relatively run-of-the-mill employment discrimination case. (Sorry, the link to the decision is down at the moment; you can instead read this summary.)
Treating physicians are experts, not just fact witnesses, and must be compensated as such. Why does this matter? Under the Federal rules, a mere fact witness gets a stipend of $40 per day of actual testimony; an expert, however, can charge hourly rates for both the testimony itself and preparation time. I have seen expert bills ranging over $1,000 an hour. Unfortunately, you'll have to rely on this summary at law.com. It's rather annoying that under the Southern District of New York's electronic filing rules, everything must be turned in on diskbut that many, and perhaps most, opinions (which are word-processed documents) never become available from the court's own system, and that electronically filed documents (like complaints) take quite a bit of time to appear on the public-access system.
As I feared, the EU is acting like girlie men (note: no homophobia intended) over the proposed merger of Sony Music and BMG. On this basis, we couldn't execute most of the commissioners in this country without a mental-capacity hearing. What sense does it make to block a smaller merger two years ago, then allow this one, when even the order allowing the merger to go forward warns against overconcentration?
Last, in a subject that is all too often of critical interest to authors, it appears that the bankruptcy "reform" measures pushed so hard by the subprime-lending segment of the credit card industry are dead for this legislative session. The credit card industry wants to keep shoving more credit cards down the throats of everyone imaginablemy fourteen-year-old son got a solicitation from one of the more notoriously rapacious lenders, merely because he maintains an online bookstore account of his own and has paid for his purchases properlywhile simultaneously making it harder to discharge those debts in bankruptcy. In other words, it wants the benefits of the sky-high rates it can charge subprime candidates without the attendant risks of bankruptcy discharge… even though the Bankruptcy Code already allows denial of discharge if the debtor's petition was abusive.