COMPLEX TECH: Scribd's iPaper competes directly with Adobe's Acrobat.com

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In a recent post about e-Discovery issues and text messages, I used the Acrobat.com embedded flash widget to allow visitors to read an Opinion by a District Court without the need to fire up Acrobat or download a file.  Acrobat.com now has a competitor of sorts in the field of flash-embedded documents, compliments of Scribd.  Scribd is "a Silicon Valley startup creating technology that makes it easy to share documents online."  In February of this year, Scribd launched iPaper, a flash-based tool for presenting documents on the web.  Scribd offers the iPaper format through its the Scribd service, which, among other things, lets users:

  • Upload documents in many different formats, including Adobe PDF, Microsoft Word, Adobe PDF, plain text, HTML, PowerPoint, Excel, OpenOffice, JPEG, and more
  • Embed your documents in a blog, Facebook profile, or other external website with your fonts, images, and formatting fully intact
  • Host a document at Scribd with its own unique URL
  • Use unlimited storage
  • Obtain fast indexing by Google and other major search engines will ensure that content is easily found by just about everyone
  • Keep certain documents private or share with a limited number of authorized persons
  • Automatically convert published content into PDF, Word, and plain text

Scribd is attempting to build a community around document sharing and searching.  Whether that will be successful remains to be seen.  And Acrobat.com offers a number of collaboration and authoring tools not yet found on the Scribd service.  Thus, in all fairness to both companies, Scribd is not precisely a competitor to Acrobat.com.  The direct point of comparison lies in the ability to use flash to embed document images into web pages and upload and store documents for sharing in other ways.  In the meantime, take a look at an e-Discovery Order in the iPaper format:

Read this document on Scribd: 2008 03-20 Order Flagg-v-Detroit-protocol2

Again, if you don't have flash installed, or are viewing this post through a feed, a pda, or another method that does not utilize flash technology, you will not see the embedded object.  For those viewers, here is the direct link to the Order on Scribd's service.

UPDATE:  After checking the appearance of the Order on the blog, I noticed that ads were inserted into the document.  When I created an account on Scribd, I configured the account so that ads would not be inserted into any documents.  While it might be a simple mistake, I would not like to think that my choice for ads was overwritten by Scribd.  I'd be interested in hearing if anyone else using Scribd has noticed this issue.

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Possible sale of private data by TransUnion provides an opportunity for fee credit monitoring

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If you've ever been curious about the many "credit monitoring" services advertised just about everywhere, you now have an opportunity to test one of those services for free as part of a class action settlement.  TransUnion, one of the three dominant credit repositories, was accused of selling consumers' personal data to marketers in violation of federal law.  Sixteen different class-action suits from around the country were consolidated into a single case against TransUnion in U.S. District Court in Chicago.

Under the terms of the settlement reached in the consolidated action, you are eligible for benefits if you opened a credit account (credit cards, student loans, auto loans or mortgages, for example) between Jan. 1, 1987, and May 28, 2008.  About 160 million consumers qualify for benefits under the settlement, which includes:

  • Nine months of free credit-file monitoring if you agree not to sue TransUnion seeking damages. In addition to monitoring—the bureau alerts you by e-mail within 24 hours of any significant change in your credit data—you can also lock your file so lenders, insurance companies and others cannot access your report without permission.  In addition, you can receive "unlimited daily access" to your credit report and TransUnion credit score, plus other credit analysis tools.  TransUnion estimates the retail value of this at $115.50.
  • Six months of free credit monitoring, credit-lock privileges and unlimited access to your credit report and score. This option, valued at $59.75, allows you to receive a possible cash payment out of the $75 million fund if any money is left over after paying lawyers' fees (I repeat, if any money is left over - it will be interesting to see if anything is left over), notification costs and named plaintiffs.
  • Even if you choose to sue the company, you can still receive six months of free credit monitoring.

There really isn't a good reason to pass on this settlement benefit.

UPDATE:  Call it "postus-interruptus," but I left out the last, crucial piece of information, where to submit a claim.   To submit a claim, visit the web site www.listclassaction.com, or call, toll-free, (866) 416-3470.

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Court of Appeal affirms order striking class allegations after defendant moved to bar certification

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Greatsealcal100I clearly recall reading a Daily Journal news article about Judge Sundvold's decision to "strike" class allegations on the defendant's motion, before plaintiffs in the case had filed their motion for class certification.  In fact, in preparing this post, I found a copy of that March 12, 2007 article in a clippings file.  (Don J. DeBenedictis, Precertification, Stores' Lawyers Crush Class, Daily Journal (March 12, 2007).)  The article mentioned that the defendant had been contacting its store managers and obtained "several hundred" declarations from them.  However, the article noted that the plaintiffs were not permitted by the court to contact those managers.  I found the reported discussion very peculiar; it seemed that something had to be missing.  I found it implausible that the Court would "not allow plaintiff to contact those current and former store employees or to see more than 5 percent of the declarations. . . ."  It turns out that the reports were fairly accurate.

In re BCBG OVERTIME CASES (June 13, 2008) ___ Cal.Rptr.3d ___ is the published opinion of the Court of Appeal (Fourth Appellate District, Division Three) that followed from the Judge Sundvold's Order finding that the matter was unsuitable for class treatment.  The Court of Appeal affirmed the Trial Court's decision.

First, some nomenclature in the underlying case was discussed by the Court of Appeal.  In the Trial Court, the defendant apparently referred to its motion as a "Motion to Strike Class Allegations."  The Court of Appeal discussed the misleading nature of this document title:

“BCBG’s “motion to strike” was not a motion to strike as used during the pleading stage of a lawsuit in both California and federal procedure. (Code Civ. Proc., § 435; Federal Rules Civ. Proc., rule 12(f).) It was a motion seeking to have the class allegations stricken from the complaint by asking the trial court to hold an evidentiary hearing and determine whether Plaintiffs’ proposed class should be certified.  “A motion to strike class allegations is governed by Rule 23, not Rule 12(f). Rule 23 requires that the Court decide the certification issue at the earliest time possible.” (Bennett v. Nucor Corp. (E.D. Ark., July 6, 2005, No. 3:04CV002915WW) [2005 WL 1773948] slip opn., p. 2, fn. 1.)

(Slip op., at p. 6.)

Next, the Court of Appeal examined the procedure utilized by the defendant.  Although defense-initiated motions to deny certification are uncommon, the Court of Appeal concluded that they are permitted:

“Under both California and federal law, either party may initiate the class certification process. In Carabini v. Superior Court (1994) 26 Cal.App.4th 239, a state appellate panel explained the California class certification process: “‘As soon as practical after commencement of a lawsuit that purports to be a class action, a hearing must be held on whether it will be allowed to proceed as such. The hearing may be held either on the motion of the representative to certify the case as a class action; or, on motion by the party opposing the class to dismiss the class action allegations; or, by the court on its own motion . . . .’ [Citations.]” (Carabini v. Superior Court, supra, 26 Cal.App.4th at p. 242.)

(Slip op., at p. 6.)  In upholding the procedure permitted by the Trial Court, the Court of Appeal also cited California Rules of Court, rule 3.767 (formerly Rule 1857, before the excellent idea of rules with decimal points).

In reading the opinion, the Court of Appeal suggests, but does not say, that the plaintiffs may have made a tactical error in the issues raised on appeal.  In particular, the plaintiffs did not appeal the trial court's rulings that prohibited the plaintiffs from discovering the contact information of store managers.  In the text of the opinion, the Court said:

“BCBG’s motion to strike the class allegations was not made before the Plaintiffs had a chance to conduct discovery on class certification issues. Such discovery had been going on for some time, although some of the plaintiffs’ efforts had apparently been thwarted by adverse rulings from the court. The propriety of these rulings is not before us.

(Slip op., at p. 9.)  Then, in a footnote immediately following the text, the Court said:

“We do not know why Plaintiffs have been unable to obtain the contact information for BCBG’s former and current managers. “Contact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case. (E.g., Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 820-821, 836, Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 799-800; see Code Civ. Proc., § 2017.010.)” (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 373.) BCBG’s opposition to the request for a precertification notice seems to be based on its assertion that there is nothing improper about its precertification contact with the putative class members.

(Slip op., at p. 9, fn. 4.)  Reading these passages, it sounds very much like the Court of Appeal would have welcomed the opportunity to reverse for further discovery that would include depositions of any declarant offered by defendant.  Looking at the Court of Appeal docket, it doesn't appear that any attempt was made to address the Pioneer decision during the appeal, although, given that discovery rulings were apparently not raised in the appeal as discretionarily included issues, any attempt to do so may have been rejected.

While the procedure used here is uncommon, it isn't novel.  The real lesson from this case is to be sure you make your record in the trial court in the unfortunate event that you have to appeal a trial court order - and then be sure you raise the issues on appeal.  I'm not sure that the Court of Appeal would, in good conscience, tolerate a trial court ruling that allowed a defendant to put forth declarations of its own managers to defeat certification while refusing to submit those declarants to cross-examination at deposition.

Class Action Defense Blog has its customary thorough coverage of the decision, as does California Labor and Employment Law Blog.

For flash-enabled visitors, here is the opinion in a form viewable in your browser on this page:

 

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COMPLEX TECH: Adobe's Acrobat 9 looks like it will be a desirable upgrade (or first install) for law firms

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Box_acrobat_9_pro_112x112 I was fortunate enough to receive a preview demonstration of new features in Acrobat 9 that will likely appeal to the legal market (my thanks to Adobe, which was unexpectedly approachable and responsive).  The preview was hosted by none other than Rick Borstein, a Business Development Manager at Adobe and the author of the Acrobat for attorneys tip blog Acrobat for Legal Professionals.  Acrobat defines software that has reached high level of maturity, and the first look was impressive.  If Acrobat 8 was enticing to law firms, Acrobat 9 adds to the attraction.

In the coming weeks, I will be post a review in multiple parts.  There is so much going on in Acrobat 9, that a thorough review would probably include too much information to comfortably digest at one sitting.  But I will mention a smaller new feature that will prove to be very useful for practitioners in the federal courts in California.  Acrobat 9 now includes a tool for splitting a large pdf into segments, using a variety of parameters.  This tool will assist with e-filing, when the document in question is too large to upload as one document.  The pdf splitting tool can split a pdf into segments of specific page lengh or file size.  The subsequent files can include the base file name and an addition piece of text, such as "Part_1".  It's an example of a simple, new tool that meets a very important need in the litigation field.

You'll have to stay tuned for my thoughts on the "big" tools and changes in Acrobat 9.

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Future class action? Dancers in Los Angeles file a wage & hour suit over independent contractor classification

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(Un)covering this story requires some care, as I don't want The Complex Litigator black-listed by content filters, hence the oblique references to follow.

It has been reported on latimes.com and abajournal.com that four dancers of the quasi-prurient-arts variety are suing nightclubs over unpaid wages and tips.  (Normal references omitted; see hyperlinks.)  The dancers are challenging their classification as independent contractors, contending that they are employees, who signed "independent contractor agreements" under duress.

Several thoughts sprang to mind when I read this story.  First, it is unclear from the reporting whether these dancers are so-called "go-go dancers" at mainstream nightclubs (the dancers you might see in clubs dancing in elevated cages as part of the effort at ambience) or are dancers at clubs of the tip-for-tat sort.  Second, this sounds suspiciously like either (1) a wage & hour class action in the works, or (2) an effort to avoid the pitfalls one encounters in wage & hour class actions by attempting to generate interest in a "mass action" of similarly situated dancers.  Either way, the press coverage of the filing will probably generate a significant number of inquiries about how to join the suit.  Third, both articles talk about how the independent contrator "agreements were signed under duress and are therefore void."  This blog has previously covered independent contractors misclassification cases, discussed previously here and here.  The terms of an independent contractor agreement are far down the list of factors examined when attempting to determine whether an employment relationship exists.  And, finally, I just wanted the chance to discuss news about dancers suing for better wages, and now I have.

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Code of Civil Procedure section 998 Offer to Compromise: recap of recent decisions and analysis

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Greatsealcal100The last few weeks have, by happenstance, seen a substantial run of decisions construing the correct application of Code of Civil Procedure section 998 Offers to Compromise.  These recent decisions provide cautionary tales about how to correctly draft a clear 998 Offer and how timing is everything when 998 Offers are on the table.

In Guerrero v. Rodan Termite Control, Inc. (June 16, 2008) ___ Cal.Rptr.3d ___, the Court of Appeal (First Appellate District, Division Three) tackled a difficult issue involving the effect of offsetting settlements, one before a rejected 998 offer, and one after.  The Court describes the core issue:

“The present appeal questions whether a pretrial settlement and corresponding offset to zero necessarily requires the shifting of postoffer costs under Code of Civil Procedure  section 998 if the plaintiff previously rejected a section 998 cash offer from the defendant against whom the claim was tried. There is currently a division of authority with respect to a similar issue under section 1032. However, regardless of the proper interpretation of section 1032, the determination of whether the plaintiff recovered more or less than the amount offered by the defendant for the purpose of applying section 998 is to be made taking into account any other settlements entered as of the time the section 998 offer was outstanding, but not considering settlements that had not yet been reached.

(Slip op., at p. 1.)    A brief statement of facts will add some clarity to the holding.  Plaintiff sued Gonsalves,  Help-U-Sell, and Rodan. In December 2003, Rodan served on plaintiff a section 998 offer to compromise for $5,000, each side to bear its own costs.  Plaintiff rejected the offer.  In November 2006, shortly before the start of trial, plaintiff entered a judicially approved good faith settlement with Help-U-Sell for $34,000. The case proceeded to trial against Rodan and the jury returned a special verdict for plaintiff in the amount of $15,600.  The court then granted Rodan’s motion pursuant to section 877 to offset the settlement proceeds against the verdict and reduce the judgment to zero. Judgment was entered in favor of plaintiff for zero dollars, and the Court of Appeal affirmed.  Rodan moved to tax the costs plaintiff incurred subsequent to the filing of the section 998 offer to compromise, arguing that plaintiff’s zero judgment was not more favorable than the $5,000 settlement offer.  At the same time, plaintiff filed a motion to strike Rodan’s memorandum of costs, contending he was nonetheless the prevailing party.  The trial court agreed with Plaintiff.(Slip op., at p. 2.)

The Court of Appeal affirmed, concluding that the correct application of section 998 requires taking into account only the verdict and any offsets to which the verdict was subject at the time the section 998 offer was outstanding.  (Slip op., at p. 5.)  In this instance, there was no offsetting settlement in 2003, the time at which the 998 offer was outstanding.  At trial, Plaintiff recovered more than the 998 offer of $5,000.  The Court reasoned that the purpose and policy of section 998 was furthered by this interpretation.

California Attorney's Fees has a thorough analysis of the decision, and Cal Biz Lit offers some further, cautionary commentary, inspired by the post at California Attorney's Fees.

In Ford Motor Credit Co. v. Hunsberger (June 18, 2008) ___ Cal.Rptr.3d ___, the Court of Appeal (Fourth Appellate District, Division One) examined the interplay between Civil Code section 1717 and Code of Civil Procedure section 998.  The defendant moved for an award of attorney fees as costs under Code of Civil Procedure section 998 after the plaintiff dismissed its breach of guarantee action.  The defendant argued that he was entitled to attorney fees because the plaintiff failed to obtain a more favorable judgment than his earlier section 998 offer, but the trial court denied the request.  The Court of Appeal concluded that the trial court was correct and fees were unavailable because section 998 did not create an independent right to fees:

“[S]ection 998 does not create an independent right to attorney fees and defendant's only avenue for the recovery of attorney fees was subdivision (a) of Civil Code section 1717, which creates a bilateral right to attorney fees where, as here, a contract contains a unilateral attorney fee provision.  However, this path to fees is blocked by subdivision (b)(2) of Civil Code section 1717, which bars any award of contractual attorney fees where an action has been voluntarily dismissed.

(Slip op., at p. 2.)  Under the analysis and holding of Ford Motor Credit Co. v. Hunsberger, a plaintiff pursuing claims arising under contract can avoid the exposure created by a section 998 offer via a dismissal.

Once again, California Attorney's Fees has a detailed discussion of the decision.

Finally, in Chen v. Interinsurance Exchange of The Automobile Club (June 19, 2008) the Court of Appeal (Second Appellate District, Division Eight) examined when ambiguity in a section 998 offers renders the offer void.

Plaintiffs suffered property damage.  Plaintiffs filed claims with their insurance carrier and later sued for insurance policy breach and bad faith.   While the suit was pending, plaintiffs’ home suffered new water damage in the kitchen unrelated to the earlier bathroom flooding.  Defendant issued a 998 offer to pay $251,000, conditioned upon plaintiffs executing a dismissal with prejudice of the pending lawsuit "as well as a general release of all claims in lieu of an entry of judgment against defendants."   Plaintiffs rejected the offer.

At trial, the jury awarded plaintiffs $8,500 in economic damages and $141,500 in non-economic damages.  Defendant sought to recover post-offer costs.  The trial court awarded $310,000 in post-offer costs to defendant and $9,800 in pre-offer costs to plaintiffs.

After noting that a 998 offer cannot dispose of any claims beyond the claims at issue in the pending litigation (Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 69), the Court of Appeal held that  the phrase "all claims" was ambiguous because of plaintiffs’ pending claim for kitchen flooding.  As a known claim, the Court concluded that a reasonable construction of the 998 offer would purport to release the kitchen claim that was not part of the litigation.   (Slip op., at pp. 5-6.)

And once more, California Attorney's Fees provides further discussion and summary of the Chen decision.

Finally, The Complex Litigator offers this additional, cautionary note about accepting 998 offers by cross-defendants that require a dismissal with prejudice and release of claims.  One might rationally (but incorrectly) believe that a cross-complainant can accept a 998 offer to compromise a cross-complaint with no affect on the defense of the original complaint.  That would be a dangerous mistake.  Under Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813 and its limited progeny, some Courts of Appeal have determined that the acceptance of a 998 offer on a cross-complaint, and resulting dismissal with prejudice, may act as a retraxit, providing a basis for a summary judgment motion against the affirmative defenses asserted by the defendant/cross-complainant.  The upshot is that the defendant would be limited to "traversing the complaint" in its defense of the complaint, having withdrawn all of its affirmative defenses.

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After Sprint's home run, Verizon is at bat in cell phone cancellation fee class action

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On June 12, 2008, Sprint avoided liability when a California jury ruled in its favor in a trial involving the contentious issue of early termination fees (ETFs) in wireless service contracts.  Now, in an Alameda County Superior Court, attorney will present opening arguments as Verizon goes on trial in the second of four coordinated class actions against cell phone companies.  (Evan Hill, Cell Phone Fee Case Set for Trial (June 23, 2008) www.law.com.)

In light of the verdict in the Sprint class action, attorneys for the class will shift their trial strategy:

“At the heart of the class actions is California Civil Code §1671(d), which lays out how to collect liquidated damages when someone breaks a contract. For the early termination fees to be legal under the statute, the cell phone companies need to prove that the fee reasonably reflects the money they lost when the customers left.

[Jeffrey] Lawrence [of Coughlin Stoia Gellar Rudman & Robbins] said the burden was on Sprint to prove it had made a reasonable estimate in establishing the fees. In their closing trial brief, the plaintiffs argued that Sprint never presented any evidence that it based its fees on how much it would lose from customers breaching their contracts. They pointed to testimony by Sprint's vice president of marketing, who said the company set its early termination fees after seeing how competitors used theirs to keep more customers from leaving.

(Ibid.) However, all of this maneuvering may be moot, if the FCC takes action.  The week after the Sprint verdict was issued, FCC Chairman Kevin Martin stated that he was "skeptical" that class actions can solve customer concerns about ETFs.  Martin wants the FCC to make an "initial decision" in July or August about how to regulate ETFs.

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OFF TOPIC: About this blog's appearance

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I've noticed a steady increase in the number of subscribers to this blog's feed.  After thinking about that a bit, I concluded that a few words about this blog's formatting are in order.

Block Quotes:  I have chosen to adopt the stylistic design element of a large, light gray, offset quote mark at the beginning of block quotes (yes, it is technically unnecessary, but I like it).  There are at least two basic mechanisms for implementing this design choice.  One involves a background image applied to the paragraph.  I do not use that option.  The other method, which I use, involves enclosing actual text in a span element and applying formatting to it.  It is simple to insert the span code in my post text.  However, it is likely that feeds and other non-browser readers will simply display a single quote mark at the beginning of the block quote.  If you are reading these posts off the feed or in a reader that doesn't do much in the way of html formatting, now you know.

The Acrobat.com widget:  I am testing a flash-based tool from adobe that allows pdf files to be embedded in a post and enlarged.  If you don't have flash installed, it won't work.  I haven't looked at it in a feed, but I assume it won't display there either.

Page weight:  With the Acrobat.com widget in particular, and the frequent use of images to enhance post appearance, the blog generates fairly weighty pages.  Basically, you need a broadband connection to comfortably read this blog online.  I am assuming that the viewing demographic has access to broadband.  If you don't, I apologize.

Browsers:  I've examined the blog in Firefox and IE7.  I had to work quite a bit sort out the code for the background pattern so that it aligned correctly in both of those browsers.  Beyond that, I don't have a lot of control if things aren't working right in other browser variants.  Unless I want to take over all of the code myself, this blog is only semi-customizable.  It's fair to say that with IE7 and Firefox rendering correctly, I've covered the largest browser target that I can, given the restriction on styling the code base behind the blog.

If you have any questions, feel free to post a comment or e-mail me, and I will answer if I am able (or tell you that I don't know).

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e-DISCOVERY: How do you discover relevant text messages but protect privileges?

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In Flagg v. City of Detroit (E.D. Mich. Mar. 20, 2008) 2008 WL 787061, the Plaintiff, alleging a lax investigation of the murder of a relative and the active concealment of material evidence related to that investigation, sought to discover text messages sent between various City employees and officials.  Defendants sought to quash subpoenas to SkyTel, and, in one Order issued March 20, 2008, the Court denied the Motion to Quash.  Instead, the Court concluded that the relevance (and resulting discoverability) of the text messages depended upon the content of each text message.   The Court then established a procedure for the review of the content of each text message.   Since a text message could theoretically be relevant, but not subject to discovery (due, for example, to a privilege), the Court determined that the review procedure had to incorporate a mechanism for resolving objections to production of each relevant text message.

On that same day, the Court issued an Order establishing the review protocol.  The Court's protocol required the defendants to PIN numbers for the pagers in question so that SkyTel would be able to produce only the text messages sent or received by those particular devices.   The Court then assigned two magistrate judges (the case-assigned magistrate judge, along with a second magistrate judge) to monitor the process of obtaining text messages, review those text messages, and make an initial finding as to whether each text message was discoverable under the standard of Fed. R. Civ. P. 26(b)(1).

The Order setting forth the protocol is included in the Acrobat.com widget embedded below:

 

If you do not have Flash technology installed in your browser of choice (or this new-fangled beta product from Adobe isn't ready for prime time), you can find that March 20, 2008 protocol Order here.

To hear a discussion about the Protocol Order in Flagg, visit the LegalTalkNetwork and listen to the most recent edition of The ESI Report.

[Via Stark County Law Library Blog and Electronic Discovery Law, both excellent resources]

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ClassActionBlawg continues to provide weekly review posts full of resources

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Paul KarlsgodtI've previously mentioned the excellent weekly class action blogosphere surveys at ClassActionBlawg.  This week is no exception at ClassActionBlawg, and the roundups keep growing.  However, if you aren't regularly reading posts on this blog, it's easy for such mentions to get lost in the archives, so I direct your attention to roundups for the last few weeks at ClassActionBlawg.

  • On June 17, 2008, ClassActionBlawg mentions posts on topics that include class action settlements, "scandal" coverage of the Kentucky Fen-Phen attorneys and Milberg Weiss, Civil Procedure, class action decisions, and debate over various aspects of class action and tort reform, to name some of the topics addressed.
  • On June 10, 2008, ClassActionBlawg mentions posts on class action trends, technology news, and arbitration clauses and waivers, among other topics.

You'll find other entertaining collections of posts almost every week at ClassActionBlawg.  One of the best aspects about Paul's roundups is the relatively even-handed coverage of news from all parts of the legal agenda spectrum.  In many cases, it provides an opportunity to see issues debated from polar extremes, which is helpful if you find yourself undecided on a particular issue.

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