Court Opinion states that if you are not asking for it, you are "asking for it"

I meant to post this yesterday, but I became too bombarded at work. Below is a link to a great article about how metadata should be transfered from one party to another in e-discovery.

From the New York Law Journal:

"The most recent federal decision[FOOTNOTE 1] weighing in on the hot-button issue of discovery of metadata[FOOTNOTE 2] and documents in their "native format," i.e., "the way it is stored and used in the normal course of business,"[FOOTNOTE 3] offers some simple, common-sense advice on how to best achieve that discovery objective: Ask for it. Up front."

Off Topic: I just find this cartoon funny

I found this on the Power of Attorney blog. I do like where I work by the way, very much actually. Heck, they are the ones who gave me the idea for this blog.

T2 to EA: $25.74 a share is that all I am worth to you?

From The Mercury News:

"Take-Two Interactive Software hinted Monday at the possibility of formal negotiations with its hostile suitor and rival video-game publisher, Electronic Arts of Redwood City.
Strauss Zelnick, Take-Two's chairman, announced in a statement that the company had begun a "process" involving some type of "formal discussions" with unnamed "interested parties." A Take-Two spokeswoman said the New York-based company declined to elaborate on the wording of the statement and would offer no additional details.

Earlier Monday, EA revealed another extension of its $2 billion tender offer to Take-Two shareholders, this time extending it to June 16 to accommodate a Federal Trade Commission review of antitrust implications. The previous deadline for the tender offer was Friday, which was an extension from mid-April. EA took its offer directly to shareholders March 13 after being rebuffed by Take-Two's board.

"EA's offer price remains unchanged at $25.74 per share, and our offer is still subject to conditions that include regulatory approval," Owen Mahoney, EA's senior vice president of corporate development, said in a statement.

EA declined to comment on questions about possible formal discussions with Take-Two.
Take-Two's board, which repeatedly has characterized EA's offer as insufficient, had rejected any formal negotiations until after the April 29 release of "Grand Theft Auto IV," the latest edition of the blockbuster game series that's central to EA's bid."

Hat Tip: The Posse List

We have an answer from DC Bar President-Elect Candidate Kim Keenan, well an email at least...

"Dear Mr Acevedo

First let me apologize for taking so long to reply to your very thoughtful email. In my defense I wanted to provide you with the correct response. The DC bar is a mandatory bar so we are not authorized to address this issue.

However it would be appropriate to address your concerns to the Committee on unauthorized practice of law. You will find their information on the DC Court of Appeals website. I appreciate your interest and concern for this important issue.

Kim Keenan

Sent from my Verizon Wireless BlackBerry"

They are not ALLOWED to address the issue? What are they allowed to speak about? How can I determine who I am going to vote for if they cannot speak about current trends in litigation?

Oh well, maybe I am barking up the wrong tree here and need to take this up with the committee on the unauthorized practice of law.

By the way...

I have sent a follow up email to both DC Bar President-Elect candidates about this post regarding their opinion of the legal outsouring trend both here in this country and abroad. Since I had not heard from either of them in over a week, I thought a second email was appropiate.

I think we need to start getting our Bar leaders both locally and nationally to take a stand on this. Now that may very well be in favor of outsourcing, and that is ok, at least I would know where they were. What I don't like is how the outsourcing business is booming, while the leaders of our Bar organizations sit passively by and don't address the issue, when in my opinion, there are serious ethical questions concerning the practice of law that need to be addressed. I address more of that here.

Charlie the Tuna, Bumble Bee Mascot, and Mermaid from Chicken of the Sea prepare to enter the octagon in UFC cage fight.

Over at the Wall Street Journal's Deal Journal, they have a question and answer with Sonnenschein partner Kathrine Funk over the antitrust issues in the food industry.

"Will Charlie the Tuna may be caught in a fishing net that may not be dolphin-safe? Del Monte Foods is seeking alternative strategies for StarKist — Charlie’s current home — as the cost of tuna production gets more expensive. One problem: the two obvious buyers — Bumble Bee and Chicken of the Sea — already own a big chunk of the packaged-tuna market. And regulators are looking at dairies again. That got us thinking about competition among food companies.

So many dream food mergers seem to run into antitrust concerns. So we caught up with Katherine I. Funk, (left) a partner with law firm Sonnenschein Nath & Rosenthal, to find out why. Ms. Funk was a staff attorney with the Federal Trade Commission. (Deal Journal Trivia: Earlier in her career, Ms. Funk was a sports writer for the Kansas City Star, so she knows something about competition.)"

FCPA: Companies need to exercise due diligence to comply with the FCPA with guidelines that are not there and rules that are not written either

This is a great post about the level of due diligence needed for a company to comply with the FCPA. Not so much an e-discovery issue, but something contract attorneys should take note of if ever working on an FCPA matter.

From the great FCPA Blog:

"Due diligence is a common subject, so it's natural to think of it as an easy subject as well. But it's not. There's no black-letter law anywhere describing due diligence, or what type is needed for an effective compliance program under the Foreign Corrupt Practices Act, or how much should be done. Surprisingly, the FCPA itself never mentions it. The statute describes what behavior constitutes an offense, and lists a few things that don't -- facilitating payments, promotional expenses and payments allowed under the written laws of the host country. But it doesn't mention due diligence.

Where, then, does due diligence come from? As with so many aspects of compliance, the Federal Sentencing Guidelines are the fountainhead. They leave no doubt that due diligence is an essential ingredient of compliance. But even the Guidelines don't give examples, checklists, or timetables. They leave the "details" to those who know the organization best -- its directors, officers and executives. Instead of being a compliance how-to, the Guidelines describe the hallmarks of an organization whose intention is to comply. One hallmark -- you guessed it -- is due diligence. There's even some case law on the topic that's helpful."

Europe: Open to topless beaches, legal drug use, but closed to anyone seeing our documents

Obviously, I wasn't going to post a picture of a topless beach on here. So I thought i have a picture of this guy instead.

From the New York Law Journal:

"While the collection, review and production of e-mails and other electronic documents have become routine for U.S. companies involved in civil litigation, internal investigations, and various other legal matters, there is an increasing number of cases that involve foreign or multinational clients, and the collection and production of electronic documents from these clients can be anything but routine.

Clients with operations in the European Union pose a particular problem for electronic discovery because of the strict data privacy laws in most European jurisdictions, which regulate the processing of personal data and its export from the EU.

These laws create a significant tension between a foreign or multinational company's obligations to produce documents for U.S. legal matters and its compliance with European law. This is an evolving area of the law, and it is imperative that U.S. lawyers become familiar with the data privacy issue and work closely with their clients to address them before a single document gets reviewed."

Off Topic Meet Jeff Foxworthy 2.0

After that post below, I needed something to make me laugh. I posted another video of these guys earlier. They are called the Red State Update, and they are hysterical. I had never heard of them until today. Enjoy.

Outsourcing: Law licenses, we don't need no stinkin law licenses.

From Livemint.com:
"New Delhi: Bad times for some American companies is turning into good times for India’s legal offshoring industry.

For reasons largely economic and partly cultural, India’s legal process outsourcing, or LPO, services providers have seen a sizeable uptick in business since the US economy has faltered. In particular, firms that handle support functions, such as reviewing documents and researching witnesses for US litigation, have enjoyed the biggest increases amid mounting disputes over who knew what and when in the mortgage and related markets meltdown."

There is also a video as well on this when you click the link. As an aside, I did not get one response from either DC Bar President-elect candidate regarding their opinion regarding this matter. I will follow up.

The good news is we will all be unemployed together. Oh and if you want to comment about how doc review is not the practice of law, blah, blah, blah, go ahead. I made my position pretty clear.

Off Topic: This is why I voted Kristina Arvanitis for President

And you can too. Seriously this is one of the funniest videos I have seen in a long time. Definitely wear headphones if at work.

Is G-Discovery the new E-Discovery?

"There is no bigger idea in enterprise technology than the idea of “cloud computing“. What does it mean? Simply put, the idea is that enterprises will cease to buy hardware, software, and all the headaches that come with them. Instead, companies will rent whatever applications they need and access them over the internet. Software vendors will keep their applications on a pool of shared infrastructure (the “cloud”), which will automatically allocate resources between applications according to demand. Using a common analogy, we will move from today’s world where companies are buying and building their own electricity generators, to a world where there are power companies distributing electricity over a grid."

"E-discovery is no exception to this mega-trend, and I expect a portion of the e-discovery software business to move to the cloud. How quickly this happens depends on how easy it is for companies to adopt cloud-based e-discovery solutions, which is why Google’s recent moves into e-discovery are so significant.

Google is by far the largest cloud computing company in the world. Its cloud-based Google Apps suite of applications was only launched in 2007, but is already being used by several hundred thousand businesses and, Google tells me, 2,000 new businesses sign up every day. Today, the customers are mainly small to medium sized businesses (500-5,000 employees). But as its functionality improves, larger companies will increasingly start asking why they should pay for Microsoft Office when cheaper alternatives exist."

Apple to initiate shock torture on competitors, possibly waterboard

How the heck did I miss this story on Friday? I know I mostly cover mergers, FCPA, and other high powered litigation, but the IP world also generates its fair share of litigation in the e-Discovery Universe.

From CNNMoney.com:

"Apple Inc. (AAPL) has filed a patent infringement and trademark lawsuit against iPod accessories maker Atico International USA Inc.

Apple is also expected to take legal action soon against Florida-based Psystar Ltd., which sells computers based on Apple's Macintosh software in violation, it's widely suspected, of Apple's software licensing terms.

In the Atico suit, Apple claims Atico's Living Solutions line-up infringes five Apple patents. The allegedly infringing devices include Atico's portable iPod speakers, an AM/FM portable boom box and an AM/FM alarm clock radio with iPod dock."

The domain HellerEhrmanWinstonStrawnProskauerRose.com still available

From thelawyer.com:

"Our favourite stateside rumour last week featured the merger of not two, but three US top 100 firms. The first won't surprise anybody: Heller Ehrman. As one of the few firms to show falls in revenue and profit last year, it has been at the centre of merger rumours for months. The continuing drip of exiting partners (last week saw another former New York managing partner, Richard Martin, bail out in favour of Orrick Herrington & Sutcliffe) is doing nothing to stem the feeling in the market that Heller is a firm in need of a deal.

Heller's first marriage partner is rumoured to be Winston & Strawn, another pleasant, but less-than-thrilling, outfit that could use a jolt of electricity.

But it's the third leg of this legal stool that has got people here buzzing: Proskauer Rose. Were Proskauer to join the party, the US legal market would be looking at a new $1.8bn (£905m) mega-firm.

Word is, this deal is too big to digest. But the fact the market gives it credence underlines the extent to which firms are now looking at their options. More consolidation this year is a cert."

WOW. 1000 people find another way to procrastinate

Ok, so I check my Google Analytics this morning, and I officially have 1000 unique visitors who have visited my blog! I would have been thrilled if it said I had 100 unique visitors. People have looked at Gabe's Guide to the eDiscovery Universe from over 30 countries around the world, including several in Europe, India, and New Zealand--yes New friggin Zealand!

Anyway, I highly, highly appreciate it. Thanks for stopping by.

Second Request Alert: So much for going steady, Microsoft-Yahoo now engaged

This is a follow up from an earlier post. I am not totally certain as to the ramifications in this, since Microsoft is not going to acquire the entire company. If anyone can clarify this--Please for the love of God, comment.

From Reuters:

"Microsoft Corp (MSFT.O) has proposed to buy Yahoo Inc's (YHOO.O) search business and take a minority stake in the Web pioneer, stopping short of a full-out merger, a person familiar with the discussions said on Monday.

As part of the deal, Yahoo would sell its Asian assets including significant minority stakes in Yahoo Japan (4689.T) and China's Alibaba Group, while Microsoft would buy a chunk of what remains of the company, the source said.

The talks were revealed by the two companies on Sunday, but they declined to reveal the terms of the discussions. Earlier this month, Microsoft walked away from a proposal to acquire Yahoo for $47.5 billion, or $33 per share, after Yahoo rebuffed the offer, saying it would only settle for $37 a share.

The new deal, if completed, would forge an alliance between the two companies that would represent an alternative means of competing with rival Google Inc (GOOG.O), whose ubiquitous search engine has made it an online advertising powerhouse."

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Second Request Alert: American_Badazz_0429 would like to add you as a friend

From Reuters:

"Facebook Inc founder and CEO Mark Zuckerberg stressed his company's independent spirit on Monday, after a report the social networking site might be sold to software giant Microsoft, which is hunting for ways to beef up its Internet business.

"You can tell, from our history and what we've done, that we really wanted to keep the company independent, by focusing on building and focusing on the long-term," Zuckerberg told Reuters while in Japan to launch a Japanese language version of Facebook.
Microsoft already has a small stake and the Wall Street Journal said this month the software giant, having failed in its $47.5 billion bid for Internet portal Yahoo Inc, had approached Facebook to gauge its interest in a full takeover."

Speaking of Facebook, you have to mindful who you meet onlien these days. Especially watch out for this guy.

Don't forget about our very first GabesGuide.com Unscientific-Scientific Poll

Who is your choice for president
	Barack Obama
	John McCain
	Kristina Arvanitis
Free polls from Pollhost.com

Above is not the Unscientific-Scientific poll. There is nothing scientific to it, because obviouusly the answer should be Kristina Arvanitis. However, this is just a friendly reminder to vote in my original GabesGuide.com Unscientific-Scientific poll about review platforms, which can be found here.

EA admonished by FTC to chew quietly and slowly. Eating fast is rude, plus causes indigestion.

From Joystiq.com:

"Super mega-huge publisher EA has announced a third extension of its tender offer for all outstanding shares of common Take-Two stock, pushing the previous deadline, which quietly passed by last Friday without so much as a hello, to 11:59PM EST on June 16, 2008. EA notes that as of 5:00PM EST on May 16, 2008, "approximately 6,210,261 shares of Take-Two had been tendered in and not withdrawn from the tender offer." In Take-Two's response, the publisher noted that said shares amount to 8% of the total.

The reason given for the latest extension seems to have less to do with virtuous patience and more to do with those pesky US Federal Trade Commission guys snooping around. "Extending our offer will allow the FTC review process to continue," said Owen Mahoney, Senior Vice President of EA Corporate Development, who added that the $25.74-per-share offer remained unchanged. The FTC sent EA a second request for information regarding the proposed takeover back in April."

Love that picture above also from Joystiq.