The WSJ just reported that an Eastern District of Virginia jury found that Vonage infringed three Verizon patents and ordered Vonage to pay $58 million plus a royalty on future sales.

Barry Barnett

Free, free, free!

Yesterday the Tenth Circuit vacated a district judge’s decision to adopt an advisory jury’s findings of fact without entering findings and conclusions of his own.  An advisory jury, the court pointed out, doesn’t find the facts in a bench trial, and its advisory verdict doesn’t relief the trial judge of his obligation under Rule 52(a) of the Federal Rules of Civil Procedure to "find the facts specially".  OCI Wyoming, L.P. v. PacifiCorp, No. 06-8026 (10th Cir. Mar. 7, 2007).

Blawgletter regards the outcome as unremarkable — Rule 52(a) plainly requires the judge to find the facts and explain her reasoning — except for the court’s instruction that on remand the trial judge must do his work "without giving deference to the advisory jury’s verdict."  Slip op. at 13.  If the judge can’t defer to the advisory jury, why impanel one at all? 

According to the Wright & Miller treatise on federal procedure, the practice of getting non-binding advice from jurors has "ancient" origins.  Judges have sometimes used advisory juries to help try cases where they couldn’t tell for sure whether a right to jury trial existed.  The belt-and-suspenders approach helped avoid retrial.  And judges and litigants may simply feel better about a judgment if it agrees with what a jury would have done in the same case. 

Barry Barnett

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A 2-1 panel of the Fifth Circuit today ordered remand of a wrongful death case to state court.  The majority held that the blurriness of Texas’s "unlawful acts rule" precluded a confident conclusion that the plaintiffs couldn’t make out a claim against two non-diverse defendants.  Rico v. Flores, No. 05-41719 (5th Cir. Mar. 8, 2007).

The lawsuit concerns the brutal deaths of 10 men who couldn’t escape a rail car that smugglers locked them into.  The representatives of the men’s estates sued the rail car owner and others, including the non-diverse smugglers.  Defendants removed the case from state court on the ground that the unlawful acts rule barred recovery against the smugglers and that therefore they didn’t count in determining whether diversity of citizenship provided a basis for removal jurisdiction.

Blawgletter infers from Rico v. Flores that an affirmative defense against non-diverse defendants cannot support removal unless the defendants establish clear applicability of the defense.  District courts must resolve any uncertainty in the law against removal.  That sounds right.

Barry Barnett

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Whitewater v. Libby.  Kenneth Starr v. Patrick Fitzgerald.

When did you last try a business case that didn’t include timelines?  Blawgletter doubts that one can make sense of the messes that businesses get into without some kind of exhibit that lays out the chronology.  The format doesn’t matter so much — but the selection of the dates and events to include makes all the difference in the world.

Take the I. Lewis "Scooter" Libby trial that Blawgletter has followed from afar.  The methodical jury appears to have constructed their own timeline during deliberations and used it as a key to decide the case.

Consider also the uproar that has followed announcement of the jurors’ verdict on March 6.  Some of the roarers — the unhappy ones — point to the misuse (from their perspective) of prosecutorial discretion.  Special prosecutor Patrick Fitzgerald, in their view, should have folded his teepee at the outset because by then the Department of Justice had already learned that Richard Armitage, and not Mr. Libby, had first disclosed the identity of CIA operative Valerie Plame to a columnist, who then wrote about it.

Do the sequence of events justify the criticism?  Let’s see:

1. Mr. Libby gives false information to the FBI and a grand jury.
2. Mr. Fitzgerald becomes special prosecutor.
3. Mr. Fitzgerald investigates whether Mr. Libby obstructed justice and perjured himself.
4. A grand jury indicts Mr. Libby.
5. A petit jury convicts Mr. Libby.

The lies and the events that the lies related to happend before appointment of Mr. Fitzgerald.  Interesting.

Another critique compares the prosecution of Mr. Libby with investigations of possible malfeasance by Bill and Hillary Clinton.  This approach suggests that Mr. Fitzgerald blew Mr. Libby’s falsehoods way out of proportion, especially in comparison to how prosecutors handled the Clinton investigations.

Does the way the events unfolded warrant the comparison?  Take a look:

1. A special panel of the D.C. Circuit Court of Appeals refuses to re-appoint Robert Fiske as special Whitewater prosecutor and replaces him with Kenneth Starr.
2. Mr. Starr looks into the suicide of Vince Foster, Travelgate, bank fraud by the McDougals, the disappearance of Rose Law Firm billing records, and other matters but finds no indictable conduct by the Clintons.
3. Linda Tripp tells prosecutors about Monica Lewinsky’s relationship with Mr. Clinton.
4. Mr. Clinton gives untruthful deposition testimony about his involvement with Ms. Lewinsky in the Paula Jones case and to a grand jury that Mr. Starr convened.
5. Mr. Starr issues a report detailing the sexual activities of Mr. Clinton and Ms. Lewinsky.
6. The House of Representatives impeaches Mr. Clinton for lying.  The Senate acquits.

Note that the deception and underlying events that got Mr. Libby in hot water happened before the appointment of the special prosecutor and that Mr. Clinton’s untruths took place after the appointment of Mr. Starr and, indeed, concerned events that occurred after Mr. Starr’s appointment.

Make of it what you like.  Blawgletter just really likes timelines.

Barry Barnett

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We don’t really know what this pic shows,
but it seems to concern e-discovery.

Blawgletter just finished reading an excellent overview of e-discovery.  It takes as its point of departure the new federal rules that took effect December 1, 2006. The ABA’s Section of Litigation compiled the survey for the benefit of Section members, including Blawgletter. They call it e-DISCOVERY.   We respectfully commend it to any who haven’t quite mastered the subject — a group that Blawgletter suspects includes just about everybody.

We looked in vain though for guidance on what to do about electronic documents that come into existence after a client expects litigation. Presumably one needn’t preserve every post-expectation-of-litigation e-document or even changes to pre-expectation e-documents. Otherwise, Blawgletter imagines, the client’s business will morph into a document-preservation enterprise with cash flow that slows to a trickle.

We get the notion of securing e-documents soon after the magic moment when the fear of a lawsuit matures into a specific reason to think one will soon follow.  So please assume with Blawgletter that we’ve already preserved all electronic data extant at the magic moment so that we have it available in pristine condition should we need to review or produce it.  Must we, in addition, go back every day and make another copy of active servers (for example) that the client uses in its ongoing business, just so that we also keep each new file and iteration of pre-existing ones?

Surely not.  But we’d feel better if someone addressed the question directly.  Any help, gentle readers?

Barry Barnett

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The Supreme Court of Texas (2007).

Blawgletter hasn’t figured out why appellate specialist D. Todd Smith insists on calling his blawg a law blog, but we do admire his work.  If you want to know the status of things appellate in the Lone Star judicial system, check out what he says.  Regularly.

Barry Barnett

Come see us, y’all.

Whether or not you agree with the appointment of Patrick Fitzgerald as special prosecutor to investigate possible crimes in the public disclosure of Valerie Plame’s CIA identity, whether or not you approve of Fitzgerald’s judgment in continuing the investigation after he learned that Richard Armitage — and not I. Lewis "Scooter" Libby — first told a reporter about Ms. Plame’s CIA job, whether or not you think Ms. Plame worked covertly, whether or not you believe that Mr. Libby lied to grand jurors, and whether or not you accept that the prosecution proved guilt beyond a reasonable doubt, Blawgletter suspects that you share our appreciation today of the Libby jury’s weeks of diligent work. 

Hats off to the jury — and the Constitution’s guarantee of our own right to one.

Barry Barnett

Each Monday, Blawg Review publishes a survey of the blawgosphere.  And, in each issue, a different law blogger assembles and hosts the weekly survey.  Blawgletter will have the honor of hosting Blawg Review on July 23, 2007.  Yeehi!

Barry Barnett