Rosenthal v. Scheindlin

It looks as if we have a rebuttal to Scheindlin's landmark e-discovery opinion, Pension Committee v. Banc of Montreal. In Rimkus Consulting Group, Inc. v. Cammarata, Civil Action No. H-07-0405, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010), Judge Lee Rosenthal doesn't contradict legal teams' duty to preserve, but does offer another view. To sum up:

"The circuit differences in the level of culpability necessary for an adverse inference instruction limit the applicability of the Pension Committee approach. And to the extent sanctions are based on inherent power, the Supreme Court's decision in Chambers may also require a degree of culpability greater than negligence."

Rosenthal is the current chair of the Federal Rules Advisory Committee's Committee on Rules of Practice and Procedure and was the chair of the Federal Rules Advisory Committee when the 2006 FRCP amendments were developed and enacted.

A great blog post on the case can be found at EDD Update.

Toyota's "Prince" gets cozy

The president of Toyota, Akio Toyoda, will take “full responsibility” when he appears before the House Committee on Oversight and Government Reform, and, in his prepared statement, will assure lawmakers that the carmaker is moving to fix the problems and regain the trust of consumers.

“My name is on every car,” Mr. Toyoda said in the statement. “You have my personal commitment that Toyota will work vigorously and unceasingly to restore the trust of our customers.” - From the NYTimes

Some observers wonder, though: Is it enough? Is an apology enough, is Toyota retooling its processes enough, or is this just the most visible example of what can happen when regulators and automakers get too cozy?

Choosing a vendor: Who can help you decide?

With the proliferation of vendor comparison and ratings sites bursting onto the internet, it's tough to know which one to trust. Of course there are the well-established analyst firms like Gartner, the 451 Group, and Forrester, and thought-leadership forums like the Sedona Conference and the EDRM. It's safe to say that their analyses are in-depth, fair, well-informed, and balanced.

But what if you don't care to wade through pages and pages of reports? And most importantly, what if you don't have the capital to buy reports that often don't come cheaply, and may leave out some of the smaller vendors you're considering? There are a number of free sites out there that you can use to compare vendors. None is comprehensive, but some are worth taking a look at.

The e-discovery matrix is a project spearheaded by Greg Buckles that's been on our radar for a while, and its development is making impressive progress. Although not yet comprehensive, it holds a great deal of potential for the industry and is certainly a good place to start.

E-Legal Technology is another site with promise. Although it's not strictly-business (it also includes press releases and other announcements from vendors) it's a good place to get a feel for the movers and shakers in the industry.

For a great (and quick!) overview of how to choose e-discovery vendors, see Law Practice Today's post. An even-quicker summary of their advice? Be proactive, be proactive, be proactive!

The many other sites claiming to offer vendor comparisons we've found so far aren't developed enough to review in an accurate fashion -- but as readers stumble across them, please send tips, thoughts, and reviews to sarah.brown@exterro.com, and I'll post an updated list soon!

8,000 Trucks Recalled Today

The latest recalls for Toyota involve 8,000 2010 Tacoma 4WD trucks with drive shaft problems. This in addition to its Feb. 9 recall of nearly half a million of its hybrid vehicles, including the latest version of the popular Prius model, with braking issues.

Given the scale of the recalls and the massive publicity exposure, Toyota stands to lose a great deal during litigation. Indeed, attorneys and firms are already gearing up for the lit firestorm. The Mingledorff Law Firm in Houston says it plans to hire more staff for Toyota litigation specifically, and on Feb. 1 filed a wrongful death suit , Michael Cleighton Harris, et al. v. Toytoa Motor Sales, U.S.A., Inc., et al. in the 189th District Court of Harris County.

Meanwhile, the National Highway Traffic Safety Administration is continuing its formal investigation into Prius braking problems, as a result of 124 complaints and four crashes blamed on the brakes, and several other lawsuits are in the works.

No matter the outcome of the individual lawsuits it will certainly be interesting to track the fallout from Toyota's manufacturing problems. Regulatory action in the auto industry seems likely given the mindset of the current administration. Tightened regulations in other industries, including pharma and finance, have paved the way for sweeping regulatory action, massive sanctions and long-term corporate compliance agreements for other industries.

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