The Brief

Previous Publications

The Brief, Vol. 41, Spring 2022

The Next Frontier of Electronic Discovery: A Primer on Litigation Issues Relating to New Digital Messaging Systems

by Beth Newton

Over the past several years, a shift in electronic communication has been underway as new digital messaging systems like Slack, Signal, and WhatsApp (among others) have become increasingly popular, including for business purposes. Commu- nication on these systems typically takes the form of chats or text messages and is accompanied by customizable settings affecting privacy and message retention, such as auto-deletion, advanced encryption, and cross-platform integration capability. New Digital Messaging Systems now supplement—and in some instances compete with—email as modes of workplace communication. Further, especially given the rise in remote work as a result of the COVID-19 pandemic, employees increasingly use these systems to conduct business activities on personal rather than company-issued devices. New Digital Messaging Systems may offer significant benefits to corporate users, including enhanced privacy and data security and facilitation of collaborative, efficient communication among employees. As New Digital Messaging Systems have become more popular, they have also begun to pose issues of first impression in connection with electronic discovery.

IME Expert Discovery under Federal Rule 35: Privileges
and Perils

by Daniel R. Michelmore

Federal Rule 26 privileges each side to either foreclose discovery into their own respective experts by designating them as consulting experts or to narrowly restrict their discovery by designating them as testifying experts. While there is considerable confusion, many courts have applied this privilege framework to discovery issues involving independent medical examiner experts. But there is another rule, Rule 35, which specifically applies to examiner experts. Once invoked, Rule 35 nullifies any privileges under Rule 26. Under Rule 35, plaintiffs examined by motion or agreement may obtain unfettered discovery from the defense examiner free and clear of the consultative and testifying expert privileges, including draft reports and communications with defense counsel. In seeking this information, however, plaintiffs automatically waive all privileges to their own examiners. While seemingly equitable, this rule in operation sanctions plaintiffs to wield privilege both as a sword and a shield and, by making plaintiffs the sole arbiter of privilege, usurps the power of the defendant.

The Brief, Vol. 40, Spring 2021

Privacy Class Action Settlement Trends: Industry Practice or Improper Incentives?

by Katherine Cienkus

Privacy class actions are a developing and active area of the law.  The last ten years have seen courts, attorneys, and defendants come together to craft creative and detailed settlement agreements to benefit the class and prevent the abuse of consumer data in the future. This article gathered data from 80 data privacy class action settlements from 2010 to 2020. It examines and notes trends in the settlements over the last decade, including evaluating the practice of granting incentive awards to class representatives. Through the analysis of these representative settlements, the article found that the median incentive award given to class representatives was $5,000, with that amount, on average, constituting almost one percent (0.7%) of the total settlement fund. In contrast, the median attorney’s fees were $1.3 million, constituting 35.06% of the total settlement fund. While the efficacy of each type of privacy class action settlement can be debated, the overall finding regarding incentive awards points towards no widespread abuse and that they are generally ubiquitous across all state and federal courts. Courts could benefit, however, from a framework upon which to judge incentive award amounts, rather than a case-specific determination based on attorney and judicial discretion.

The Brief, Vol. 39, Spring 2020

Due to the COVID-19 pandemic, we decided to not publish a Spring 2020 issue of The Brief.

 

We apologize for the inconvenience.

The Brief, Vol. 39, Fall 2019

Putting Learned Treatises Under the Microscope:

Assessing the Rule 803(18) Hearsay Exception and the

Reproducibility Crisis in Social Science

by William E. Braff

By expanding the Daubert standard to expert testimony in all fields, including social sciences, the Supreme Court's decision in Kumho Tire embraced reproducibility and reliability as general benchmarks for expert admissibility. These changes are reflected in Federal Rule of Evidence 702, which was updated post-Daubert to incorporate the Daubert factors for evaluating expert witness testimony. This article argues that the reproducibility crisis in the behavioral and social sciences demands that currently overbroad admissibility of expert testimony be scrutinized, particularly when using Federal Rule of Evidence 803(18) to admit a learned treatise. For attorneys and judges seeking fair procedures for exposing evidence to jurors, reforming the learned treatise exception is a simple step that could limit the unfair prejudice of evidence being presented as scientifically accurate despite lacking the hallmark reliability of science.  

Attorney Withdrawal in Mass Actions:

A Proposal for Change

by Jean Raveney

The use of multidistrict litigation has grown in recent years. However, lawyers are constrained by current rules of professional conduct on withdrawal and clients can be harmed if there is disagreement between the client and lawyer about settlement offers. This article proposes an amendment to the Model Rules of Professional Conduct regarding an attorney’s ability to withdraw in mass actions under specific circumstances. The proposal is keyed to a rationality principle. If a lawyer representing a large group of plaintiffs successfully negotiates a settlement that is accepted by 90% of the client base, then the lawyer may withdraw from any clients who do not accept the offer. The proposed solution fixes many of the issues raised by mass action scholars, and it is arguably good for clients, lawyers, and courts. Thus, the rule could prove beneficial to the administration of mass litigation and to all involved parties.  

The Brief, Vol. 37, Fall 2018 - Summer 2019

The Impact of Police Body-Worn Cameras on the Plea-Bargaining Process

by Katelyn N. Ringrose

This note, in Part I, looks to the history of law enforcement’s adoption of [body-worn cameras (BWCs)] and their contemporary use. In Part II, I analyze the likely impact of BWCs on the plea-bargaining process, including both positive and negative implications. In Part III, I catalog efforts to mitigate potential ill-effects of BWC use on the plea bargaining process, including intra-office administrative mandates, with an eye toward the general trajectory of real-time data collection. In conclusion, this paper warns courts and administrative bodies to undertake research looking into the implications of BWC use on the plea-bargaining process before allowing the technology to influence pleas. Furthermore, agencies, both state and federal, should look into creating an impartial agency to hold BWC footage, and grant the defense access to that footage prior to trial and prior to acceptance of a plea.

Seeking Comparable Transactions in Patent and Tax Law

by Susan C. Morse

In their article, Tax Solutions to Patent Damages, Jennifer Blouin and Melissa Wasserman argue that tax transfer prices can provide some of the data needed to set patent litigation damages.  One could also ask the converse, which is whether patent litigation outcomes can provide some data that tax transfer pricing needs. . . .  Blouin and Wasserman argue that parties and courts should make use of the large body of tax transfer price information to help support reasonable royalty calculations in patent damages cases.  Perhaps so.  But transfer pricing data is messy.  Using tax transfer prices sets for parties and courts the challenging task of understanding the prices in context.  The risk exists that the analysis will fail because of the weight of its own complexity.

Flexibility or Certainty? Comparing the First and Second Restatements of Conflict of Laws' Approach to Contract Cases

by Thomas Nolan

Twenty-four states follow the Second Restatement while 11 states still follow the First Restatement, placing it in a distant second. The fact that both are Restatements and are the two most popular choice of law theories for contract cases in the United States today, a comparison and analysis of the First and Second Restatement can prove instructive of how conflict of law jurisprudence has evolved [and] demonstrate why the Second Restatement is a superior conflict of law methodology. . . .

The Brief, Vol. 36, Fall 2017 - Summer 2018

Opening an Oral Argument before the Supreme Court: The Decline of Narrative's Role

by Louis J. Sirico, Jr.

In contrast to previous eras, today’s oral advocate can expect Supreme Court justices to start asking questions earlier and often. Consequently, the advocate should expect to launch the argument with only a few sentences before the questions begin . . . .

Buckle Up or Else: Texas Supreme Court Holds Plaintiffs Responsible for Failure to Wear Seat Belts

by William R. Scott, Tasha L. Barnes, & Michael L. Copes

On February 13, 2015, the Supreme Court of Texas issued a ruling in Nabors Well Services, Ltd. v. Romero,  which changed the rules in Texas regarding the admissibility of the use or nonuse of a seat belt by a plaintiff injured in a car crash. This ruling provides a new way for defense attorneys to help their clients . . . .

U.S. Patent Extraterritoriality within the International Context

by Amy L. Landers

Erasing borders is a significant act. There are international, legal, economic, and philosophic implications. The concept of sovereignty, which is widely thought to have originated with the 1648 Treaty of Westphalia, is a cornerstone of the legal order of individual nations . . . .

Patent Assertion Entities, Reasonable Royalties, and a Restitution Perspective

by W. Keith Robinson

The changing nature of patent litigation over the last fifty years has forced patent stakeholders to think differently about remedies for patent infringement. A major catalyst for changes in how courts award specific remedies such as injunctions and attorney fees has been the successful assertion of patents by entities that do not practice the patent . . . .

The Federal Circuit Disavows Mandatory Smallest Salable Patent-Practicing Unit "Rule"

by Douglas A. Cawley & Lindsay Leavitt

The Federal Circuit recently clarified that there is no “rule” mandating that all patent damages methodologies for multi-component products be calculated using the smallest salable patent-practicing unit . . . .

Paying the Piper: The Anatomy of a 9th Circuit Music Copyright Infringement Lawsuit

by James Eastman

In 2008, Coldplay released their hit song, “Viva La Vida,” which has since been downloaded over four million times.  A year later, Joe Satriani filed a copyright infringement lawsuit (“infringement lawsuit”) alleging that “Viva La Vida” sounded similar to Satriani’s instrumental track “If I Could Fly.”  The parties later settled out of court . . . .

Trying Class Actions: The Complex Task of Managing and Resolving Individual Issues in Class Trials

by Michael K. Grimaldi

A class action tried to verdict is an “exceedingly rare beast.”  This is because class actions almost always settle if a class is certified. The court’s ruling on plaintiff’s motion for class certification is thus the 'main event' in a class action . . . .

A Modest Proposal to Adopt Traditional Central African Tribunal Music Practices in the State and Federal Courts

by Michael J. Lockman

Litigation music is an integral component of the traditional tribunal practices of Central African tribes, such as the Tutsi, located in present-day Rwanda, Burundi, Democratic Republic of the Congo, Uganda, and Tanzania . . . .