This is the "Great Idea" of the American system of justice. It depends on the assumption that nobody is in a better position to stick up for their own rights than the aggrieved party him(her)self.
It's a bit like Hegel's conclusion that the struggle between thesis and antithesis will always result in the most satisfactory synthesis. Two skilled parties (lawyers) fighting for what each believes to be the truth under the supervision of a judge and the critical eye of an impartial jury is thought most likely to lead to a fair and just result. You may disagree of course, but this Great Idea is a fact of life and part of the consequence of doing business in America.
The easiest way to get yourself in trouble in America (see Famous Last Words).
While American antitrust concepts are broadly similar to European anti-cartel concepts, US law relies to a greater extent on so-called Private Enforcement. In addition, the Enforcement Agencies ( esp. the Department of Justice and the Federal Trade Commission) also have wide discretion to investigate and prosecute entities which engage in questionable behaviour.
American antitrust law has developed through its Common Law tradition starting from the Sherman Act, the Clayton Act, Section 3 of the Robinson-Patman Act, Sections 3, 5, 13(b), 18 and 19 of the Federal Trade Commission Act and the Hart-Scott-Rodino Antitrust Improvement Act as well as the regulations issued by the Federal Trade Commission thereunder.
For many years, and in smaller cases even today, the Numbering of the Documents was done by hand with a numbering machine manufactured by the Bates Manufacturing Company. The numbers on the documents came to be known by the name of the company and "bates stamping" came to mean the process of placing the "bates numbers" on the pages. When large numbers of documents are involved, this can be done automatically by printers or during the Scanning process.
This law was passed in 1914 as a refinement and extension to the Sherman Act and prohibited such specific unfair trade practices as exclusive dealing and tying arrangements. It also covers International trade, mergers and acquisitions and established the right of Private Enforcement.
Also called Four Corner Indexing, this is the process of registering the purely bibliographic information of each Document in a computer Database as the first step in creating an electronic search tool for later legal analysis. Typical information registered for each document will include: author(s), addressee(s), copy holder(s), date, title, type of document, and certain other information which can be obtained by simply looking within the four corners of the document and copying what is written there (subject to very limited translation into English).
No interpretation whatsoever is permitted. This is purely registration of the facts including even misspellings and other obvious errors. If the author made an error, even that fact may become important later and the fact of the error must not be hidden from later legal analysis by an over enthusiastic coder's well meaning, but misguided correction.
For more information read the section on "Coding" under Litigation Services.
That's right "copying" - photocopying of Documents. It doesn't sound too special and it wouldn't be except for the almighty fuss some lawyers are capable of making whenever they catch you out in a copying error. It is absolutely, unavoidably, critically essential that no copying errors are made. The lawyer has chosen to have copies of certain documents made because (s)he thinks they may be used in court. Judges are notoriously impatient with anyone seen to be submitting anything for judicial consideration which is not as perfect as it can be. The court is entitled to and may insist on seeing the original.
Copying errors are legion and just waiting to happen. Think about it. Documents have to be unstapled, each page has to be copied and the copies kept in the correct order, some original pages are torn or folded, some originals get jammed in the machine and - Heaven forbid -get destroyed, sometimes the contrast is so bad you can't read the copy, sometimes the originals are too long (legal size paper) and have to be reduced. Last but not least, the originals have to be re-stapled, re-filed and returned to their owner without damage or loss.
For more information read the section on "Copying" under Litigation Services.
In the Discovery Process the term "Database" refers to a database specifically created to assist the US lawyers in getting a conceptual grasp of all the documents identified as being potentially relevant to the case at hand. The creation of such a database has become standard operating procedure in large cases in the US during the last decade. Most law firms have their own favourite database software, usually with proprietary "tweaks" that increase the efficiency of performing their legal analysis.
It is only recently that law firms have begun to recognise the advantage of creating and maintaining a Database in Europe. The low cost of multilingual Europe-based Coding personnel, paralegals, translators and part-time or full-time recent law school graduates is convincing many of the merits of a locally built Database.
For more information read the section on "Translating" under Litigation Services.
The Attorney General of the United States is charged with enforcing all the laws of the United States. As head of the Department of Justice, the Attorney General relies on and acts through its Antitrust Division for the day to day enforcement activities with respect to the antitrust laws. The DOJ functions independently from, though in parallel and in cooperation with the Federal Trade Commission
As part of the Discovery Process before trial, each party's lawyer has the right to interview the witnesses the other party plans to call. These interviews are called Depositions, are translated when necessary and are given with the witness under oath. The questions and answers are written down by an official court reporter and may be submitted in evidence. In Europe, Depositions are usually taken in a rented conference room with the nearest US Consul often administering the oath.
Especially for Europeans, one of the most surprising aspects of US litigation is its reliance on Pre-Trial (or Pre-Merger) Discovery as a tool for providing each party with the evidence in the possession of the other. This provides the parties an insight into the strength of each other's position. One's opponent, or in the case of mergers, the U. S. Government, has a right to all relevant information discovered according to the Rules applicable to Discovery. Failure to comply with Document Requests can lead to losing the case. The main elements of the Discovery Process include: Document Collection, Copying, Numbering, Coding, Translating, making the Privilege Call, Production and possibly Scanning.
Here's an obvious one, or so you thought. I've seen definitions of this term that occupy an entire page in the Document Request. What follows is typical, if somewhat dated:
"The term "document" means the "original" or a "duplicate" as those terms are defined in Rule 1001 of the Federal Rules of Evidence, or (sic - probably should have been "of" not all lawyers are perfect) any book, pamphlet, letter, memorandum, correspondence, telegram (I said it was dated), report, file, note, agreement, working paper, guideline, draft, chart, paper, diary, minutes, or resolutions of meetings or other written, recorded, or printed material which is in the plaintiff's possession, custody, or control or to which the plaintiff has, has had or can obtain access. The term "document" also includes any photograph, film, audio recording, video recording, tape, data compilation, or computer record, however produced or reproduced."
Well, you get the idea. A document is anything containing any information. Say, wouldn't that have been a more efficient definition? Maybe the lawyer who drafted the above was being paid by the hour (or by the word) instead of on the basis of No Cure No Pay.
Document Collection is the physical act of gathering the documents responsive to a Document Request, Fast Track Discovery , Mandatory Disclosure, Second Request or the like. While it may seem fairly straightforward, Document Collection is an art in itself. It is safe to say that virtually no European filing system has been developed with US discovery procedures in mind. The persons who have maintained the files will not have as broad a view as to what is "relevant" as the law requires. Searching out each and every relevant Document is often a quixotic task which must, none the less, be accomplished in order to avoid embarrassing the US lawyer presenting the case to a sceptical judge and incredulous jury.
For more information read the section on "Document Collection" under Litigation Services.
Document Discovery is an extremely invasive aspect of the Discovery Process requiring the Production of copies of documents that are relevant to the case. Traditionally, opposing parties present each other with specific Document Requests requiring the delivery of all documents responsive to the requests. In jurisdictions which have adopted some form of Fast Track Discovery or Mandatory Disclosure, each party is expected to anticipate the needs of its opponent and provide Documents it believes will be useful to the opponent. In larger cases, Document Discovery involves the review of hundreds of thousands of pages of files, and the production of tens of thousands of pages of copies. Literally all files kept by a company and each of its employees are subject to Document Discovery.
The Document Request is a court Pleading in which the party seeking discovery describes the kind of Documents he is looking for. The requests must be reasonably specific and calculated to lead to the discovery of admissible evidence and therefore reasonably related to the claims and counter-claims made in the case.
Document Review refers to the process of reading, organising and analysing the Documents collected during the Document Collection phase of the Discovery Process. This is the primary, substantive, analytical effort made by the attorneys on the case. The Theory of the case as well as alternative Theories will evolve and crystallise from this process.
Since your legal position, rights and options will be determined based largely on the Document Review, this review must be carried out by your US lawyers. This work cannot be carried out by your own in-house council (unless they themselves are qualified US attorneys in the relevant jurisdiction).
In large, document rich cases, this is what your US lawyers (and especially the junior associate lawyers) spend a substantial amount of their billable hours doing. Not without reason. They have to be able to prove their Theory to the judge and the jury. Your lawyers will get to know certain parts of your company better than you do. It sometimes seems like a pretty inefficient way to deal justice, but the Adversarial System works by pitting the creative talents of dedicated professionals against each other for the betterment of the entire business community.
For more information read the section on "Document Review" under Litigation Services.
The Department of Justice and the Federal Trade Commission as well as similar bodies in other countries and even in many individual States in the US.
"He can't sue me for that, can he?" The sad truth is that, in America, anybody can sue anyone for just about anything. They can't always win and sometimes, but only sometimes, you can punish them (make them pay your costs) if they get too aggressive (ridiculous), but they can cause you an awful lot of grief and expense in the meantime, especially with Product Liability claims or the Private Enforcement of the Antitrust laws. This, also, is a part of the Adversarial System.
One of the original purposes of the whole Discovery Process was to save judicial resources by forcing the parties to deal with reality in a realistic manner. By learning the truth about each other's position, it was hoped they would settle most of their differences peacefully and only bring those issues to the judge about which they honestly disagreed.
Unfortunately, creative lawyers (are there any other kind?) began to take up so much of the judge's time fighting about the meaning and extent of Interrogatories, Document Requests, Deposition schedules and other minutia that many judges were driven to despair.
During the 1980's, several jurisdictions began experimenting with streamlining the Discovery Process by placing limits on the number of Document Requests and Depositions permitted. Strict time limits were also placed on responding and scheduling. Severe sanctions were put into effect on parties who failed to comply. Parties found to be "uncooperative" by running crying to the judge for help in situations they should be able to resolve for themselves also began to be punished. The result in many cases was a faster, if not always a more just, completion of the Discovery Process.
Various forms of Mandatory Disclosure were also experimented with during this period and it was adopted by some Federal Jurisdictions beginning 1993 as an effort at systematising Fast Track Discovery.
The Federal Rules of Civil Procedure are the rules that each Federal District Court (the trial court level of the Federal Court System) imposes on litigants who appear before the Court. These rules are proposed in model form by the Supreme Court of the United States, but the various District Courts have a certain discretion in the (timing of) adopting the rules. Some important amendments were adopted by the Supreme Court in 1993 including new Rule 26(a)(1) which would impose Mandatory Disclosure on litigants.
Established by the Federal Trade Commission Act in 1914, the FTC was given specific authority to enforce compliance with the prohibitions of certain unfair methods of competition including those set out in the Clayton Act. The FTC's jurisdiction has since been extended to cover all types of unfair or deceptive acts or practices. This responsibility exists in parallel to the responsibility of the Antitrust Division of the Department of Justice.
The use (and often misuse) of the Discovery Process, especially Document Requests, to find evidence of wrongdoing in the files of one's opponent. While usually bordering on overreaching, Fishing Expeditions are frequently tolerated by understanding Judges where there are substantial indications of misbehaviour, but a lack of hard facts. ("If it stinks, there must be something rotten.") The phrase is usually used in a derogatory manner in a motion to oppose discovery as in: "Your Honour, my opponent's entire discovery effort to date amounts to nothing more than a Fishing Expedition in the hope of creating wrongdoing out of my client's legitimate business activities." Most Judges disregard this kind of language except in rare cases where the other party's grounds for seeking discovery really are ludicrous. Unfortunately, some lawyers can't seem to resist talking like this at the least indication of overreaching.
The Hart-Scott-Rodino Antitrust Improvements Act of 1976. The main effect of this law is to require Pre-Merger Notification by entities planning a merger or acquisition in cases where the value of the object of the acquisition eceeds a certain value or when the combination of the two entities would result in a significant reduction in the degree of competition in any particular area of trade.
The Image Database is the result of Scanning. All scanned Documents are stored on hard disc or on CD-ROM under a number (often the Bates Number).
Traditionally, lawyers on large, document rich cases have worked with armies of paralegals searching through the various copy sets of the relevant Documents to find the ones with the smoking guns and sorting them into Redwelds for the lawyers to look at. Since most lawyers can't even read a newspaper without a blue pencil to mark errors, copies very often came back with annotations and remarks scrawled all over them and covered with coffee and Diet Coke stains (when they came back at all). This can be a serious problem if these same Documents need to be copied and given to the enemy during Production.
An Image Database on a network solves the problem. Any lawyer on the team can view any document at any time without the help of a paralegal and without risk to the Document set. The searchable Database can used to generate lists of potentially interesting documents which can then be called up on screen from the Image Database for immediate review.
Intellectual Property (sometimes referred to as Industrial Property) is intangible knowledge which has a value to a business because it enables one to do something better, more cheaply or more profitably. Various forms of Intellectual Property exist and some have been defined by law in order to offer them protection. The rights created by these laws are called Intellectual (or Industrial) Property Rights or IPR.
For example, inventions can be protected in most countries by patents; the creative works of authors (books, but also software) can be protected by copyright; trademarks can be protected by trademark laws and even unregistered trade secrets and know how can sometimes be protected by specific laws in most well developed legal systems.
The rights these laws create (when properly registered, if required) usually offer the owner exclusive use of his/her Intellectual Property. IPR can also be exploited by the owner by selling them or, usually more sensibly, by licensing the use of these rights to others.
During the Discovery Process, each party has the right to submit written questions to the other requesting specific information, Documents and/or objects, provided they are reasonably calculated to lead to the discovery of admissible evidence and that they are not unduly burdensome to the other party. It goes without saying that the concept of "unduly burdensome" may vary depending on which side you are on and is subject to determination by the judge.
For some lawyers, Interrogatories are used as an excuse to ask the most intrusive, irritating and intimate questions they can think of with the primary purpose of embarrassing you in front of the judge (For example: When did you stop beating your wife and why? Provide all details and any relevant objects employed).
Legitimate uses of Interrogatories include discovering the names, addresses and other relevant details of persons you may not be aware of, but whom your opponent knows may have knowledge, documents or other evidence relevant to some issues in the case.
Mandatory Disclosure was a concept adopted into the Rules of Civil Procedure as new Rule 26(a)(1) by the Supreme Court of the United States in 1993. The broad intention was to expedite pre-trial proceedings by making discovery less a matter of litigation in and of itself and more a matter of the professional responsibility of the lawyers.
Under the earlier rules, it was the responsibility of each lawyer to identify with a reasonable degree of specificity and request all the relevant information or documents he wanted and thought the other party might have. If a lawyer forgot to ask for a certain category of document or information, his opponent had no duty to Produce the information unless he wanted to use it as evidence himself. Under the new rules, lawyers are required to make their own evaluation of all the information and documents available and relevant and to make a good faith determination as to whether or not it or they would be useful to their opponent. If so, he is required to produce them even if not requested.
This is the way some US lawyers get paid - or not. The lawyer and client, usually a plaintiff, agree that if the client wins, the lawyer will receive a percentage of the damage award (often between 20% and 35%) after payment of the costs.
Most Europeans are appalled at this system thinking it encourages meritless claims. No Cure No Pay proponents argue that it is a good way to increase "access to justice" for those who do have valid claims, but lack the resources to fund years of litigation. I've even heard of one Texas judge who opined that hourly rates should be abolished in favour of No Cure No Pay because it's unfair to pay a lawyer for losing.
Each photocopy of each Document is assigned a unique number (often the Bates Number) in order to give it an address in the Image Database and to distinguish it from duplicates of itself which may be found in other files or locations. This may seem odd at first, but very often the importance of a document in the course of the legal analysis is determined not so much by its contents alone, but also by the persons who got a copy of it and what they did or failed to do with it. (See also Copying).
For more information read the section on "Numbering" under Litigation Services.
Not quite the greatest thing since sliced bread, but improving all the time. After Scanning a Document, OCR software can be used to generate a text file from the graphic image. Unfortunately, the quality of the original, especially certain fonts, together with the level of sophistication of the OCR software still leads to so many spelling errors that full-text searches of scanned and OCR'd documents is not sufficiently reliable for litigation purposes. On the other hand, when sufficient numbers of non-English language documents need to be translated, this method, together with automated translation software can make a big dent in the work load.
For more information read the section on "Scanning/OCR" under Litigation Services.
This is the general term for all the official documents drafted by the lawyers and submitted to the court during the course of a lawsuit. They include the complaint, answer, counter-claims, Document Requests, motions and any amendments thereto.
P.S. to Dutch speaking people, this is not the same as a "pleidooi" which means "oral argument" in English. The Pleadings are always written and submitted to both the judge and the other party prior to a hearing before a judge.
Whenever a planned merger involves companies (at least one of which American) of sufficient size or when the planned merger significantly decreases the degree of competition in a market, the parties to the plan must make the Pre-Merger Notification filing required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
If the filing doesn't satisfy the government that the proposed merger is competition friendly enough, the Enforcement Agencies will issue a Second Request for additional information giving the parties a second chance to convince them. Collecting the information needed to comply with a Second Request is so much like the Discovery Process that the same methodology can be very usefully employed.
Any private person or company believing himself to have been disadvantaged by anyone else's actions in violation of certain antitrust laws may sue for damages under those laws.
The amount of damages is determined by a non-expert jury based on evidence presented by the claimant and can run into the millions. Furthermore, the already high jury damage awards are always automatically tripled as punishment for the violation. The claimant gets to keep the excess more or less as his reward for taking on the role of private policeman. His downside is that if he can't prove his claim, he may still have to pay his own (and in some very rare cases the defendant's) legal fees (but see also No Cure No Pay).
The only Documents owned or possessed by a company and relevant to the issues in the case that may be excluded from Production in the Discovery Process are those which are privileged. Only your US lawyer can determine if the privilege applies to any particular document. These documents all have to be collected during Document Collection, but may be excluded from production after your US lawyer has determined whether or not the privilege applies. This decision making process is the Privilege Call.
Generally speaking, but subject to a number of exceptions, documents containing exclusively your requests for legal advice or your lawyer's advice to you as well as documents prepared by or on the instruction of your lawyer in preparing a case for trial may be able to benefit from the privilege. Even though the privileged documents themselves may be safe from production, a Privilege Log must be made and given to the judge and the other party. The judge always has a right to read the privileged documents and to decide if the Privilege Call was correct.
The Privilege Log is a list of all Documents collected during the Discovery Process for which your lawyer has claimed a privilege when making the Privilege Call. The contents of the list vary a little among the different jurisdictions, but usually contains the author, addressee, copy holders, topic and the basis for the privilege.
The most unbelievable part of the entire Discovery Process for most Europeans is when your lawyer turns over copies of part of the Documents collected to the lawyer on the other side. This is Production. Every effort is made to insure that documents containing confidential business information are protected from any wider disclosure than is strictly required for the purposes of the case at hand.
In most complex business cases, the judge will enter an order (called a Protective Order) requiring that only the lawyer and his expert witnesses (also sworn to secrecy), but not the other party himself, gets to see the documents produced unless they are actually admitted in evidence. Lawyers on both sides take these secrecy obligations very seriously as the sanctions for disobeying a judge's order can be severe, even carrier threatening. These reassurances are cold comfort to most, but Production is at the heart of the Discovery Process and is unavoidable.
The second easiest way to get yourself (as a manufacturer or distributor) into trouble in the US (see also Antitrust). The concept of Product Liability in America is essentially identical to that of European concepts, in that the manufacturer or distributor is responsible for the damage caused by the products he creates or brings into the stream of commerce. The main difference lies in the high jury damage awards of the American judicial system.
Editing. When making the Privilege Call, it sometimes happens that some of the information in a Document is not privileged. A copy of the document must then be redacted by cutting out or pasting over the privileged part, recopying and producing the unprivileged relevant text in the Production. In some cases, judges will allow you to Redact non-relevant, confidential business information.
When your lawyer says "Put it in the Redweld," he is referring to one of those large, usually red, file folder holders with a red ribbon for tying it shut. The name comes from the colour and the fact that the manufacturer wanted to emphasise the weld-like strength of the glue holding it together.
The use of Image Databases can reduce the need for Redwelds. I wouldn't be surprised to find some lawyer using the term Redweld for an electronic collection of Scanned images.
Amended the Clayton Act in 1936 to extend its application to various forms of price discrimination not originally covered.
When a lawyer talks about the "Rules," he usually means the rules of civil procedure governing the lawsuit under discussion. Most lawsuits involving substantial amounts of money and/or international parties will be in one of the Federal Courts and therefore subject to the Federal Rules. It is not inconceivable that such a case could find its way into one of the State Courts which each have their own, if mostly similar, rules.
Also called Imaging, this is the making of an electronic copy of the Documents in order to increase the accessibility of the entire document set while reducing the risk of damage or loss of the documents. Scanning is not to be confused with Optical Character Recognition (OCR).
For more information read the section on "Scanning/OCR" under Litigation Services.
This is the possible result of the Pre-Merger Notification required by Hart-Scott-Rodino. After submitting the Hart-Scott-Rodino filing, either the Department of Justice or the Federal Trade Commission may decide they want more information before they decide whether or not to challenge the proposed merger. The nature and scope of the information they want is set out in the Second Request. The merger may not be completed until after the waiting period which begins only after the Second Request has been "substantially" complied with. Collecting the information needed to comply with a Second Request is so much like the Discovery Process that the same methodology can very usefully be employed.
This is the original US Antitrust law passed in 1890 in response to the excesses of the railroad and oil monopolies of the 19th century. It was intended to prohibit restraints to free competition among commercial enterprises by outlawing attempts at monopolisation. The adoption of this law provided a powerful weapon to those who agreed with Adam Smith's statement in The Wealth of Nations that:
Often used in these pages as a euphemism for "too many" (see Interrogatories for example).
This is not about philosophy and it's not about law school classroom debates. When we talk about the Theory of a case, we are talking about the "story" of what happened and why. A US jury is not as arbitrary as many European businessmen think. The jury just wants to know what really happened and they want to know why it happened. They are perfectly capable of understanding these things if the lawyer can just tell the story, the Theory, in plain, convincing English and back it up with believable evidence.
Corporations act through their human employees. Even in complex commercial litigation, there is very often a rational and most human-scale story to tell. In the pre-trial phase, this story resides in the memory of the employees involved. It also exists in the Documents those employees created and received at the time. Juries know that memories sometimes fade or become selective, but paper is inexorably patient and reliable, at least as an indication of what the author thought at the time.
The lawyer needs to see all the relevant paper so he can develop the Theory and tell the jury what really happened in a believable way. If something wrong did happen, the lawyer needs to be prepared to deal with the bad news and the difficult documents in advance. You can't afford to let him be surprised with a difficult document in court. Such a surprise can blow such a big hole in the Theory that the jury just won't be able to believe the story anymore.
In the Discovery Process different degrees of translating Documents can be distinguished.
When the goal is merely to help a monolingual lawyer gain some minimal level of access to a small group of non-English documents, it may be useful to have someone from your company summarise the documents orally. When the number and/or diversity of the documents is greater, it is more useful to get short, summary translations into a Database for later reference as well.
More complete, yet still summary, translations will be required in the case of a Second Request where your goal is to convince the Enforcement Agency of your righteousness as quickly as possible.
Finally, full text, extremely accurate translations of anything you want to introduce into evidence is a must. Nothing irritates a judge or jury like getting the impression you are trying to pull a fast one through a self-serving translation.
The greatest pitfall of translation is the faulty translation of professional jargon and specific business, financial or legal concepts which may be unique to a particular country and language therefore not have an equivalent in American English.
For more information read the section on "Translating" under Litigation Services.