Ideas Without Boundaries conference
Held at Stanford yesterday, the URL for this conf:
http://lawschool.stanford.edu/slata/ideas_without_boundary/index.html
Panel 1: Ethics
Michelle Galloway (Moderator), Lecturer at Stanford Law School; Of Counsel, Cooley Godward
Prof. Richard Marcus, UC Hastings College of the Law
Carol Langford, Adjunct Professor at University of San Francisco School of Law; Partner, Langford & Bell
John Steele, Lecturer in legal ethics, Boalt Hall School of Law (UC-Berkeley) and Santa Clara University School of Law; Rogers, Joseph, O’Donnell & Phillips
Carol: who’s your client?
Richard: how to conduct int’l discovery
John Steele: challenging privilege/conflict issues
Carol: liability insurance is affected when this comes up: inventors, licensees, assignees, parent and subsidiary companies, merger interests, vendors, others that think they might be a client. How do issues come up? Affiliate of a corp, one sues other; sometimes they don’t know who each other are, don’t know what the invention is: does conflict system pick it up? Lateral hires infected with conflicts? Law firms merging, 3rd party entanglements (Morrison Knudson). Litigation mergers.
Rule 3600 (CA) Organization as client, acting thru highest org agent. Need to explain identity of client, CA is liberal as to atty:client relationships. Discussion section is important in change of control, rely on case law (ducking rule). Brooklyn Navy Yard: PMNC & Parsons suing BNY (law firm also represents others), Parsons moves to disqualify Lebuff law firm (look for unity of interests). BNY appeals, found overly broad “unity of interest”, rep of subsidiaries isn’t necessarily same interest when impact doesn’t go to parent corp, “alter-ego” standard.
Morrison case rejected BNY, MK suing Sentinal (parent co = Morrison) for construction defects. Underwriters hired MK to monitor legal situations, court used “substantial relationship” test, didn’t use BNY, court looking for something less than alter-ego: unity of interests test. Weird case.
Lots of case tests: does litigation affect corp’s bottom line? Alter-ego? Unity of interests? Direct vs indirect impact. All factually driven.
ABA opinion 95390 re: affiliates, look to facts/factors; lots of dissent. ABA suggested that Attys talk with their clients, ask them who they are.
Individual inventors: attys work directly with them, but lots of times they think they’re clients but lawyers don’t think so, lawyers get sued a lot over this. Also as to confidential info (can be broad).
U Rochester v GE Searle, Pharmacia? Teltronics case
Re clear who your client is, do conflicts checks.
Richard: admission: he went to law school before there was “ethics.” (laughter) When might you be inclined to paint with a broad brush? Your job as litigator is to be aware of and assert privileges to prevent discovery… at least two ways of looking at: how is discovery handled in rest of world, and here that affects entities elsewhere? Third of great present interest: how differently should one look at this where discovery is digital? Also: commercial litigation WRT rest of world?
Discovery in Global Perspective: Are We Nuts? (article): discoverable info is bizarre in rest of world: recognizing a “right.” Relaxing elsewhere: japan: adopting something like American discovery (not implemented). Arbitration (A Lowenthal, NYU): over time, better features have become routine…. WSJ (about a year ago, re; Dawn Raids (antitrust) in Europe): no warning, no review, no notice, EU wanted to expand searches to include exec homes. No protection against disclosure. US discovery is what rest of world thinks of as bizarre, world wants constraints. America relies on private enforcement of public norms. (Lawyers w/ subpoenas, congress’ use of atty gen’l, calibration of discovery = effectiveness. Considerable impatience (Rule 26(b)(5)) w/ privileges here, attitudes toward waiver is aggressive. Depends on if you’re in US. AMD v Intel (9th circuit)
What privilege rules should apply? (suit in Korea, what if Korea has no privilege rules?)
E-discovery: ’96-97 Rules Committee discussion, need to include e-mat’l including email. No obvious answer. Two considerations: location of documentary material is less important (courts haven’t taken this up yet other than one case in NY re: Puerto Rico company that could move its records to NY); privilege waiver & inadvertent disclosure.
Future: UNIDROIT: Rules for Transnational Procedure. Set of principles applies to litigants of different states, detailed pleading rules. Falls in place (next 20 years)? If so, American-style discovery will expand.
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