Clawed-Back Document Not Privileged (and Privilege Waived Anyway)

Defendant clawed back a document attached as Appendix 1 to an expert report. Judge Payne granted the plaintiff’s motion to compel, holding that: (1) the document was not a communication protected by Rule 26(a)(4), and was waived by disclosure anyway since the clawback came too late (two months later and after the filing of a motion to strike the expert and the defendant’s response).

“The Work Will Teach You How To Do It: Lessons from Patent Litigation Courts On The Use of Limits on Case Activity to Effectively Manage Litigation Costs – Thesis for Litigation Management LL.M.

I am happy to report that they let me walk the stage Friday in Waco after finishing the last on-campus week for my Executive LL.M. in Litigation Management at Baylor Law School – the only LL.M program in the nation for litigation management. We covered every stage of the litigation process to identify efficiencies and current trends, and while there was little in the program I didn’t know at least something about from 31 years in a litigation-only practice, I learned valuable new skills and tools to do things better than I had been doing them.

I doubled down on the subject of litigation efficiency in my thesis, “The Work Will Teach You How To Do It: Lessons from Patent Litigation Courts On The Use of Limits on Case Activity to Effectively Manage Litigation Costs.  We were required to prepare two versions of the the paper – a full version (approx. 29 pages with over 60 citations, mostly to case management orders in patent litigation) and a shorter five-page version. The five page version is here – the full version is available to subscribers and court staff below, and I hope all will be interested in the comparative analysis of the procedures across some of the more popular patent courts.

Happy New Rulebook Unboxing Day

Wonderland and the downtown ice rink in Marshall – as shown in the watercolor by Carol Pace – are nice and everything, but our favorite holiday at the Scheef & Stone office in Marshall is of course the delivery of our editor’s copies of the new O’Connor’s Federal Rules, which came in yesterday.  Happy New Rulebook Unboxing Day for those who celebrate.

Barbara Jordan Oral History Project

Really enjoyed being interviewed this morning for an oral history project about the great Barbara Jordan, whose class I had the privilege of being in graduate school at UT um, 36 years ago. I was working as a runner at an Austin law firm (whose newest firm associate was one Alan Albright, coincidentally) and attending the LBJ School working towards a masters in public affairs. I can’t wear my old class reunion t-shirt any more, but I loved getting to show it off! BJ helped guide me toward law school and later my eventual career path by recommending me to Judge Sam B. Hall, Jr. in Marshall for a clerkship – they had served together on House Judiciary during their time together in Congress.

East Texas – ABOTA Chapter Wins Chapter of the Year

I am ridiculously proud to recognize my East Texas chapter of the American Board of Trial Advocates for winning the large chapter of the year award last month at the National Board Meeting in Whistler, BC, Canada. (Why does ABOTA meet in Canada? Probably for the same reason Tex-ABOTA meets in Santa Fe – it’s too damn hot here). The small chapter award was taken home by the San Bernadino/Riverside chapter.


The chapter was represented at the meeting by ABOTA president Jennifer Doan of Texarkana, Curt Fenley of Nacogdoches and Jack Baldwin of Marshall. Oh, and Marshall Wood, also of Texarkana, who then forgot to bring the trophy to our fall social in Tyler last week.

The award is the outcome of several years of hard work by chapter presidents and members, and we are so, so thankful for all their work towards gaining this recognition for the good work our chapter does.

I continue to plug away at ABOTA committee work, all of which I am really enjoying. Jennifer just appointed me to a workgroup at the national level looking into the effect of AI on trial practice, and at the state level I chair Tex-ABOTA’s amicus brief committee, and have been fortunate to continue to be involved in the discussion of how Texas’ business courts are going to work when they begin operation next September.

Congratulations again!

Baylor Litigation Management LL.M. – Final Semester

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Just started the last semester of what’s been a very enjoyable and informative LL.M. at Baylor on litigation management. This semester I’ll be doing a deep dive into current trends in e-discovery using the Scheindlin & Capra text, as well as ethical issues in litigation management, expert witnesses, management of complex litigation, complex arbitration & negotiation, and small firm litigation management. And I’ll be wrapping up my research paper – actually two since we do both a short and a long version of our topic. Of course some of these topics are old friends – but one thing I’ve learned in this program is that there’s so much more to learn, even on subjects I’ve been dealing with for over 30 years now, some on a daily basis.

Motion To Dismiss For Improper Venue Denied

Judge Payne denied the motion, which was predicated not on the defendant’s not having a regular and established place of business in the district – it admitted that it did – but its argument that “that property is not used for the accused systems.”  Even assuming that the argument was correct, the court found sufficient evidence of allegedly infringing activity, and denied the alternative motion to transfer the case to the SDTX.