Crane on Law by James Crane

It was a busy year for M&A in 2007. Through the first three quarters of 2007, there were reportedly 637 transactions worth $95B according to the Jordan Edmiston Group. Here were some of the biggest deals:

Nokia acquired Navteq for $8.1B: The world’s largest manufacturer of cell phones purchased Navteq, a leading provider of comprehensive digital map information.

News Corp. Acquired Dow Jones for $5B. In this deal, the media giant acquired the Wall Street Journal and Barron’s as well as Dow.

Cisco bought Webex for $3.2B. Google acquired Doubleclick for $3.1B and Postini for $625M. Microsoft bought aQunative for $6B and TellMe for $800M.

2007 was busy with big deals and it doesn’t look like it will slow down in 2008. 

2007 has been a very interesting year. Since the adoption of the Amended Federal Rules in December of 2006, legal practitioners and litigation support companies have spent unprecedented amounts of time, resources, and energy into understanding and complying with discovery requirements for electronically stored information.

At Altep, we have been assisting our corporate law department partners manage their electronic discovery. Following the amendment of the Federal Rules, Altep worked closely with our clients to evaluate their current practices in the context of the new requirements. We integrated technology where it was needed and created updated electronic data protocols to shore up any deficiencies.

Once a client is comfortable with their universe of data and their capabilities to search and collect from it, the next step is to keep up with court and case law developments. Earlier in this blog, I referred to the Maryland Protocol (Suggested Protocol for the Discovery of Electronically Stored Information), a fantastic resource put our by Magistrate Judge Paul Grimm and the Maryland District Court (found at http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf.

Another resource I haven’t mentioned yet is Guidelines for Electronically Stored Information from the Kansas District Court back in October of 2006. It can be found here: http://www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf.

One of my personal New Year’s Resolutions will be to keep all of you readers informed of as many new e-discovery developments as possible. If you hear of something useful that I haven’t mentioned, pleasepass it along, and I will share it with everyone.

The proposed merger between the two satellite radio companies was expected to be decided by the end of 2007. As 2008 approaches, there is no sign of a last minute action, so the wait will continue. To catch you up on the timeline, Sirius and XM filed their Consolidated Application for Authority to
Transfer Control with the Federal Communications Commission on March 20 th. On September 4, 2007, Sirius and XM certified to the DOJ that they were in substantial compliance with the Request for Additional Information. On November 16 th, the FCC Information Request was answered.

The FCC Comment Period is over, the requests for information have been answered, and the FCC timeclock is about 3 weeks beyond its 180 day goal. We’ll keep a close eye on this outcome. The decision will be interesting and will impact many future mergers and proposals.

For more information and to stay up to date on the news regarding this proposed merger, you can check out the FCC website at http://www.fcc.gov/transaction/xm-sirius.html.

For those of you who missed it, the Princeton Review released their Law School Rankings earlier this year. To see the full list, go to the Princeton Review web site here: http://www.princetonreview.com/law/research/rankings/rankings.asp

For a quick look at the Top 50 without any purchase requirements, you can check out University of Cincinnati tax law Professor Paul Carron’s website tax law professor at:

http://taxprof.typepad.com/taxprof_blog/2007/10/princeton-rev-7.html

Attorneys responsible for defending corporations know that it is a good idea to understand the business of the client. Now that the Federal Rules have been amended to explicitly direct parties to account for all electronically stored information, it is imperative that corporate counsel possess a thorough understanding of the organization’s electronic information infrastructure. Attorneys can no longer sit on the sideline and wait for IT personnel to deliver the data - instead, attorneys must be meaningfully involved. This is especially true in light of Rule 26 (f), which requires parties to confer early in the process to consider a discovery plan that includes the parties’ views and proposals regarding any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.

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In case you missed it, this past summer, the District Court of South Dakota presided over a breach of contract claim between a plaintiff franchisee versus a defendant franchisor regarding the misappropriation of an advertising idea. During his deposition, plaintiff’s president revealed the legal opinion of a patent attorney retained by plaintiff inadvertently, but without objection.

Defendant franchisor then sought the related and ostensibly privileged documents from the patent attorney on the basis that privilege had been waived.

When plaintiff moved to quash the demand, the Court held that the communication (and the documents) was privileged. The most interesting part was that the Court relied on the new “safe harbor” provision in FRCP 26(b)(5) to hold that because the disclosure was inadvertent, there was no consent to waiver. The Court’s position was that the Rules, as amended, apply to all “information” rather than simply electronic evidence.

We can all expect continued sparring among counsel regarding the breadth of the Safe Harbor protections. If you have had interesting experiences regarding the application of the amended Rules, I would love to hear from you.

As I noted last month, it is up to the legal profession to keep Latin alive. For that reason, I will provide three useful, amusing, curious or thought-provoking Latin phrases every month to keep us fresh. ADDED BONUS: The always insightful Litigator's Horoscope to Live By. Do enjoy ~

I: En ventre sa mere - In its mother’s womb.

II: Magna componere parvis - To compare great things with small things.

III. Perspicua vera non sunt probanda - Plain truths need not be proved.

Be sure to commit these to memory - they may be useful in your next brief or argument, and there might be a pop quiz.

And now, the Litigator's Horoscope:

Sagittarius
November 22 - December 21

Intense activity and higher-than-normal stress surround you this month. Make and effort to spend meaningful time with friends and family - plan a creative, romantic rendezvous with that special someone. Remember that there's more to life than the practice - you will likely find yourself juggling a variety of different responsibilities in every aspect of your life. Engage your imagination and your creative inspiration to handle the challenges of your practice and your personal universe with style and grace. Litigate wisely, and you'll live to litigate another day.