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The Quest for Electronic Information: Practical Tips for Taking or Defending
the Deposition of an IT Consultant
by Rosevelie Márquez Morales

Today, the average user has over 10GB of data stored on email servers and file servers. It
is usually a blend of email, word documents, excel spreadsheets, and PowerPoint slides,
weighted mostly to email with attachments. The deposition of an IT consultant will assist
you in identifying the documents needed to defend your client and their
location. Specifically, knowing the type of electronic information stored by your client and
its location will potentially assist you in: (1) forming your objections to requests made at
the Rule 26(f) conference; (2) drafting a motion for protective order; and (3) supporting or defending
allegations of spoliation.

The purpose of this article is to highlight key points and to identify specific areas of inquiry while
preparing your outline to depose the IT consultant. Each area merits its own development at deposition
based on the specific facts of your case. In preparation for the deposition of an IT consultant, you
should take the time to meet with your own IT department to obtain a general understanding of the type
of information stored and its potential location which may include:

⇒ Individual computers and laptops ⇒ Instant messaging logs
⇒ Network directories ⇒ VOIP logs
⇒ Document management systems ⇒ Various system files
⇒ E-Mail servers ⇒ Portable devices
⇒ Voice Mail servers ⇒ Hosted repositories
⇒ Databases ⇒ Internet data repositories

As with any deposition, you should set goals for yourself and work towards achieving those goals. If
you are taking the deposition your goals should including gathering information to assist you in locating
and identifying sources of information. To the extent that you are deposing your adversary's IT
consultant in the early stages of litigation, such information will help you prepare for a Rule 26(f)
conference and set the parameters for discovery going forward. If you are defending the deposition,
your goals should include maintaining your client's credibility, gathering information for a motion for
protective order, and avoiding spoliation charges and sanctions.

Once you have identified your goals you should outline your areas of inquiry. While your areas of
inquiry will vary depending on the type of case, you should generally include the following topics in your
outline: the Structure of IT Department, the Company's System Profile, Internet/Intranet, Back-up and
Retention, Maintenance, Chain of Custody/Authentication, and Database Management Systems.

The following sets forth some specific areas of inquiry and sample questions related to the general
topics commonly addressed in the deposition of an IT consultant.

Structure of IT Department: Specifically, you should have the IT consultant describe:
• The Structure of IT Department;
• Whether the company outsources;
• The steps taken when the legal department needs to gather data:
• The method of notifying the IT department (internal and external) about a litigation hold; and
• The steps taken by the legal department upon receipt of a litigation hold;
• The identity of custodians and record repositories, i.e., who created or received documents relating to
the litigation;
• How were the records stored;
• The method used and location of archives/backups of the records.

As with any litigation hold placed on your client, when you are deposing an IT consultant you should
ensure that the party took the necessary steps to make certain that all sources of potentially relevant
information were identified and placed 'on hold.' During this inquiry you should become familiar with the
party's document retention policies, as well as the data retention architecture. You should ensure that
the party took affirmative steps to monitor compliance so that all sources of discoverable information
were identified and searched. While defending a client's deposition requires you to ensure that formal
litigation holds were sent, confirmed, logged and followed-up on throughout the course of the hold,
taking a deposition requires you to identify record custodians, record repositories, and the preservation
and storage methods used to ensure that formal litigation holds were implemented.

System Profiles: System profiles generally help develop a map or picture of the type of data used by a
corporation; the profile shows where the data is located. Questions should be purposely general in
nature and as the deposition progresses the information will be filled out in more detail. Specifically,
you should have the IT consultant describe the:

• Structure of Company;
• Types of computers used in the business;
• Hardware network configurations;
• Types of software; and
• Home computers used for business.

(These questions should be designed to provide an overview of the computer hardware utilized by the
company and architecture.)

Internet/Intranet: Specifically, you should have the IT consultant describe:

Internet Intranet
⇒ Website Domain ⇒ Who has access?
⇒ Maintenance ⇒ Who manages?
⇒ Who provides content? ⇒ Type of information stored
⇒ Policy/Procedure for ensuring accuracy of information displayed ⇒ Maintenance (including any logs)
⇒ Blogs ⇒ Site changes

Backup/Retention: Backup tapes are often the best sources of historical information. Learning what is
backed up and how long backup tapes are kept before being overwritten will help you establish how
much you have to work with. Specifically, have the IT consultant:

• Identify all systems that are backed up;
• Describe the backup software utilized; and
• Describe the backup procedure;
• Contents
• Frequency
• Automated
Maintenance:

• Identify the person(s) responsible for ongoing maintenance.
• Determine whether utility programs are used for maintenance.
• Has any computer hardware been upgraded or come off lease?
(Hint: You need to know if data has been moved.)

Database Management Systems: Database management systems may be difficult to ascertain and
comprehend. In large organizations, it is common to find hundreds of different databases. In many
cases, the data compiled in a database comes from different sources. Thus, you may want to consider
the departments or divisions most likely to contain information specific to your areas of interest and
reshape your questions. General questions should include:

• The type/function of the database;
• The types of database software used;
• The identity of the individual responsible for the database's design and maintenance; and
• Backup protocols.

At times a party may contest a document, claiming that someone other than the author of record may
have created the document. If you are faced with this issue consider laying a foundation for
authenticity.
As electronically stored information continues to grow "knowing becomes half the battle." Educate
yourself on types of systems maintained by your clients and if possible, your adversary. As you
complete your deposition, make sure you have identified the key individuals, sources and locations of
information.

Ms. Marquez Morales is an Associate of Harris Beach PLLC. She focuses her practice primarily in the
areas of mass tort litigation, products liability defense, health care litigation and medical malpractice
defense, as well as premises liability and general liability defense. Ms. Marquez Morales also
represents insurance companies in commercial, personal injury and liability claims. Ms. Marquez
Morales is an active member of DRI where she serves on DRI's Diversity Committee as Vice Chair of
Diversity Publications and Vice Chair of Diversity Seminar's Corporate Expo. She is also President-
Elect of the Puerto Rican Bar Association. During her legal career she has authored "What Insurance
Carriers Need to Know About the New Medicare Reporting Requirements", New York State Trial Court
Dismisses Infant Mold Personal Injury Suit on Basis of Absence of Causation", "The New Lead Paint
Law of New York", "Low Level Lead Exposure and Changes in Lead Legislation" and "Tips for Second
Seating a Trial". She also co-authored "Winning with Cross-Examination: Effective Cross of Plaintiff's
Medical Expert," and has spoken at litigation conferences .

You Are Always Negotiating: Understanding and Influencing Your Adversary
by Luke Radney

"Tart words make no friends: a spoonful of honey will catch more flies than a gallon of
vinegar." Benjamin Franklin, Poor Richard's Almanack (1744), reprinted in Poor Richard's
Almanack by Benjamin Franklin (Richard Saunders, Philomath) at 117 (Benjamin E. Smith
ed., The Century Co. 1898).

For those that know of Benjamin Franklin's time spent as a diplomat in France, have read
about Benjamin Franklin, or that have at least seen the recent HBO miniseries John Adams, it is
apparent that Franklin knew something about how to effectively influence others. It is highly
questionable whether America would have won the Revolutionary War without France's financial and
military support, and it was Franklin that secured France's aid. From the first telephone call or letter
introducing ourselves to opposing counsel through the eve of trial or the signing of settlement
documents, we are constantly engaged in negotiations. This is, admittedly, a simple and generally
accepted notion. However, often we witness words exchanged and conduct displayed by lawyers that
have the opposite effect from the intent of the speaker or actor. Should it not always be our intent when
speaking for our client to further the client's interests, while being mindful of our duty to uphold the
integrity of the justice system? Yet, many harsh verbal exchanges between lawyers do nothing to help
the client. What's more, they often end up hurting the client's cause.

Though not unheard of, I have the somewhat unique perspective of having represented plaintiffs in
personal injury and disability cases for the first few years of my practice before undertaking my current
work defending insureds and corporate clients. My first jury trials involved representing plaintiffs in
personal injury actions. Having traveled in different circles on both sides of the bar, I have experienced
the animosity that many plaintiff lawyers hold against the defense bar as well as the disdain that many
defense lawyers hold for the plaintiffs' bar. These feelings often color exchanges between counsel when
discussing a case. Whether due to an inherent bias against the other side or a personal philosophy that
good advocacy requires incivility, many lawyers lose the opportunity to influence their adversary's
decisions by failing to establish a rapport with opposing counsel. This lost opportunity results in
increased costs to the client and a drain on the attorney's own time and resources.

Abusive Tactics Do Not Advance the Client's Cause

In my home State of Texas, a seminal case dealing with attorneys engaging in abusive tactics is Dondi
Properties Corporation v. Commerce Savings and Loan Association. Dondi involved multifarious claims
including RICO violations, common law and statutory fraud, civil conspiracy, negligent
misrepresentation, and claims of usury as related to a failed savings and loan association. 121 F.R.D.
284, 285 (N.D. Tex. 1988). It is evident that Dondi involved highly contentious claims that undoubtedly
wore on the patience of all participating counsel. In a per curiam opinion, the court considered various
motions for sanctions, motions to compel, and motions to strike pleadings. Id. at 285-86. The litigation in
Dondi became so vexatious that the court convened en banc to establish standards of conduct for all
counsel appearing before it. Id. at 286. In a global comment on its observations regarding attorney
conduct, the court noted that "With alarming frequency, we find that valuable judicial and attorney time is
consumed in resolving unnecessary contention and sharp practices between lawyers…Our system of
justice can ill-afford to devote scarce resources to supervising matters that do not advance the
resolution of the merits of a case…." Id.

The court then chose to adopt standards published in the Dallas Bar Association's "Guidelines of
Professional Courtesy" and "Lawyer's Creed" as rules by which counsel must abide in appearing before
the court. Id. at 287. The court announced standards of practice to include that "A lawyer owes, to
opposing counsel, a duty of courtesy and cooperation…Lawyers should treat each other, the opposing
party, the court, and members of the court staff with courtesy and civility and conduct themselves in a
professional manner at all times" and "Effective advocacy does not require antagonistic or obnoxious
behavior and members of the Bar will adhere to a higher standard of conduct which judges, lawyers,
clients, and the public may rightfully expect." Id. at 287-88.

What is most interesting about the Dondi opinion is that the court found it necessary to announce these
standards in the first place. Many of us take these ideas for granted. However, in all fairness it is worth
considering that law schools did not always require the taking of a class on professional responsibility,
as is common today, and many attorneys entered practice in the past with no guidance other than that
of their own conscience and that afforded by the attorneys they found themselves mentored by. The
Dondi opinion deals with the waste of both the court's time and the attorney's time in dealing with
combative litigation tactics. However, in addition to wasting the court's and attorney's time, such tactics
often result in a drain on the client's time and resources. As mentioned previously, should an attorney's
conduct not always aim at advancing a client's cause, rather than defeating it? Rather than aggressively
prosecuting or defending a client's position on its merits, "malfeasant counsel" instead will be dealing
with an array of sanctions by the court. Dondi, 121 F.R.D. at 288. Moreover, the chance to persuade
opposing counsel to see the case as you see it is severely eroded, if not utterly obliterated.

A Lack of Civility Can Result in Being Held in Contempt

If unconvinced, consider U.S. v. Ortlieb. In Ortlieb, the U.S. District Court for the Middle District of
Louisiana convicted an attorney on three counts of criminal contempt. 274 F.3d 871, 873 (5th Cir.
2001). During trial, an opposing attorney made a sarcastic side bar comment to the attorney examining
a witness, stating "A little louder. He is not quite hearing you, Mike" to which the examining attorney
replied "Go kiss my ass, okay?" Id. at 874. The trial judge retired the jury and ordered the examining
attorney to apologize; however, he refused. Id. Later, during a bench conference regarding an objection,
this same attorney stated "Judge, I don't want to deal with this idiot" in reference to opposing
counsel. Id. As a result, in the end the district court imposed a $1,500 fine, a second $500 fine, and
finally a third $3,000 fine on the offending attorney and suspension from practice before the Middle
District of Louisiana for a period of one year for violations of 18 U.S.C. sec. 401(1). Id. at 873. The
relevant code section states "A court of the United States shall have power to punish by fine or
imprisonment, at its discretion, such contempt of its authority, and non other as (1) Misbehavior of any
person in its presence or so near thereto as to obstruct the administration of justice." Id. (citing 18
U.S.C. sec. 401(1)). The Fifth Circuit upheld the fines, though it vacated the decision to suspend the
attorney from practice.
The above comments were made in open court. However, it is noteworthy that the code section refers to
misbehavior in the court's presence "or so near thereto as to obstruct the administration of justice." It is
certainly plausible, for instance, that abusive comments made in a deposition are "so near thereto as to
obstruct the administration of justice." An attorney's conduct does not have to be displayed in open court
to draw a judge's ire and harm a client's cause. U.S. Magistrate Judge Miles Davis of the Northern
District of Florida has some somber words of advice for counsel that engage in abusive discovery tactics
as a standard order issued in discovery motions reads:
In the court's experience, the great majority of discovery disputes arise when both sides exhibit (1)
failure to grasp, or disdain for, the law, the rules, or the facts, (2) lack of professionalism, (3) lack of
civility, (4) refusal to extend common courtesy to a fellow professional (and therefore to the court), (5)
bad faith, or (6) some or all of the above, which generally manifests itself in the now all too common, but
absolutely intolerable, take no-prisoners, scorched earth arrogance exhibited my many present day self-
styled 'litigators.'
Pensacola Firefighter's Relief and Pension Fund Bd. of Trustees v. Merrill Lynch,
No. 3:09cv53/MCR/MD, 2009 U.S. Dist. LEXIS 100658, at *1-2 (N.D. Fla. Oct. 13, 2009).
Judge Davis's order also makes it clear that the court takes note of instances of unprofessional conduct
even when outside of its presence as the order states:
If you have made speaking or suggestive objections during a deposition, or if you have instructed a
witness not to answer when you had no right to do so, I will know what you are about. I am not inclined
to favor such behavior. If you do not return telephone calls, are always 'unavailable,' screen every
communication through two layers of staff, and then dash off e-mails 'confirming' something that was not
agreed on when you were finally reached, you are not fooling anyone. If civility and common courtesy
are not in your make-up, or if you think bully tactics are a necessary part of the practice of our
profession, you undoubtedly will not like the consequences of your lack of manners.
Id. at 3-4.
Appealing to Your Adversary's Sense of Fair Play

Still, there are those that continue to practice with a belief that the only way to zealously advocate is to
always treat the opposition as an enemy to be dealt with harshly and without compromise. This is a
fallacy. There must be some threshold of civility to adhere to. Consider In re Morrissey, where the
Fourth Circuit affirmed an attorney's disbarment after a history of abusive conduct, including a 1986 fine
for "berating the judge and continuing to argue after the court's ruling," a 1991 five-day jail sentence for
"writing a threatening letter to a judge," and a 1991 reprimand for "engaging in a fist fight with opposing
counsel in a criminal trial," among several others. In re Morrissey, 305 F.3d 211, 214 (4th Cir.
2002). Certainly, none of these tactics helped the client's cause. Likewise, while the attorney's chances
at landing a UFC contract may have increased, his ability to ever work on another client's legal matter
was lost.

As the title of this article indicates, there is more to treating opposing counsel with civility than just
making life less stressful for all involved. In acting as zealous advocates, it is easy to become blinded by
our client's emotions. There is a time to refuse to compromise with the opposition. There are cases
where no offer of settlement should be made and where justice for the client will come only from a judge
or jury. As advocates, it is in our nature to speak for our clients in a confident and authoritative
voice. However, a lack of courtesy and civility often results in an outcome that is contrary to our clients'
expectations. Resolution is delayed as dealings with the opposition are made unnecessarily
contentious. One of our duties is to explain to our clients, based on our experience, why they will not
obtain the results that they are looking for by asking that we sink to acting as hired guns. As the court in
Dondi explained "The judicial branch of the United States government is charged with responsibility for
deciding cases and controversies and for administering justice. We attempt to carry out our
responsibilities in the most prompt and efficient manner, recognizing that justice delayed, and justice
obtained at excessive cost, is often justice denied." 121 F.R.D. at 285.

One must always bear in mind that opposing counsel may feel as strong about his client's position as we
feel about ours. Therefore, we will not learn how far we can move opposing counsel and his client
toward our desires without acting with civility. Instead, we will only encounter increasing resistance and
unnecessary battles over trivial matters if we invariably choose a confrontational style over an appeal to
our adversary's sense of fair play through acts of common courtesy. Most importantly, by failing to act
with civility and professionalism we risk losing that which we are bound to pursue, as officers of the
court, and which we constantly strive for: justice for our clients.

Luke Radney is an attorney in the Dallas, Texas office of Burt Barr & Associates, L.L.P. Mr. Radney's
practice focuses on defending catastrophic personal injury actions, business tort claims, and commercial
claims, as well as prosecuting complex subrogation claims on behalf of insurers. Mr. Radney may be
found appearing in federal and state courts throughout the State of Texas.
Current Trends in Student Loan Borrower Litigation: Borrower Must Pay Loan
Debt
by Suzanne M. Young

Last year's law graduates reluctantly started repaying their student loans a few months
ago. Recent graduates see payments looming in the near future. Other young lawyers in
loan repayment look at their remaining principal and feel there is no end in sight. Some
lawyers may have fleeting thoughts of avenues to avoid repaying loans. Few act upon
it. Are you thinking of evading your loan payments by ignoring due dates for your loans? Or
suing the U.S. government to challenge your loan servicer's methods of calculating interest,
assessing late fees or setting repayment start dates? Although these measures seem drastic, some
graduates may consider taking them as tuition rises astronomically and layoffs of attorneys occur in
mass fashion across the country. While tempting, several recent opinions illustrate the perils of trying to
evade student loan obligations or bringing a claim for predatory lending practices.

Student Loan Borrowers' Claims Against Their Lenders Are Preempted by the Higher Education
Act

A recent Ninth Circuit decision determined that student loan borrowers' claims against their lenders were
preempted by the Higher Education Act (HEA). In Chae v. SLM Corp., No. 08-56154, 2010 WL 253215
(9th Cir. Jan. 25, 2010), the Ninth Circuit affirmed the U.S. District Court for the Central District of
California in holding that the Federal Family Education Loan Program (FFELP) of the HEA preempted
student borrowers' claims challenging loan servicer methods of calculating interest, assessing late fees,
and setting repayment start dates. FFELP is a system of loan guarantees "to encourage lenders to loan
money to students and their parents on favorable terms." The test for federal preemption is as follows:
"(1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with
federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to
conclude that Congress left no room for state regulation in that field." The court previously held that field
preemption did not apply to the HEA. Congress enacted several express preemption provisions
applicable to FFELP participants, one of which applied to, and therefore precluded, several of the
plaintiffs' state law claims. In considering whether conflict preemption applied to bar plaintiffs' remaining
claims, the court discussed congressional intent for FFELP to operate uniformly. The Ninth Circuit
distinguished a Fourth Circuit decision in holding that permitting varying state law challenges across the
country under differing state law standards would be harmful to the FFELP. After independent review of
the state and federal laws, the Ninth Circuit agreed with the Department of Education (DOE) that the
plaintiffs' suit posed an obstacle to Congress's uniform implementation of the FFELP and accorded the
agency interpretational deference.

The Higher Education Act Provides No Private Cause of Action for the Student Loan Borrower

A Louisiana court determined that the HEA did not create a private cause of action, but declined to hold
that the HEA preempted plaintiff's state law claims. In Murungi v. Texas Guaranteed, a loan debtor
alleged predatory lending practices, including wage garnishment against Sallie Mae and Texas
Guaranteed. 646 F. Supp. 2d 804 (E.D. La. 2009). The loan borrower alleged that through "corrupt and
illegal transactions defendants removed plaintiff's [student] loans from deferment status to default
status." When the loan was in default, the borrower claimed that the defendants' agents
called his place of employment every day and disrupted his employer's work flow, discussed his debt
with third party co-workers, used false and deceptive methods in order to gain access to his workplace
for the sole purposes of harassing and embarrassing him, left threatening and harassing messages on
his voice mail every morning, at night and on weekends, and spread falsehoods, thereby damaging his
professional and personal reputation.

The loan debtor brought federal claims under the HEA and the Federal Debt Collection Practices Act
and state law claims for fraud, defamation and intentional infliction of emotional distress. Defendants
moved to dismiss, arguing that the HEA did not create a private cause of action and that it preempted
plaintiff's state law claims.

In an earlier decision regarding the same dispute, the court determined that the HEA did not create
rights enforceable by private litigants and denied plaintiff's motion for preliminary injunction. Murungi v.
Texas Guaranteed, Civil Action No. 09-3109, 2009 WL 1458171 (E.D. La. May 22, 2009). The court
previously focused on legislative intent and determined that "no provision [of the HEA] provide[d] for
student enforcement or entitlement to civil damages." Further, the "clear inference drawn by courts from
Congress's broad delegation of authority to the Secretary [of Education] is that Congress did not intend
for borrowers to enforce the HEA through a private remedy." The court incorporated its previous
analysis and granted defendants' motion to dismiss plaintiff's HEA claims.

Defendants then argued that the loan borrower's state law claims were preempted by the HEA. The
court noted that the HEA did not expressly preempt state law remedies for fraud, intentional infliction of
emotional distress or defamation. Additionally, the court noted that other circuit courts including the
Fourth, Eleventh, and Ninth Circuits, have concluded that the HEA does not occupy the field of higher
education loans and loan repayment. The court then considered whether plaintiff's state law claims
conflicted with the HEA and determined that the defendants failed to illustrate how Louisiana's fraud and
defamation common laws created an obstacle to the purpose of the HEA. However, the court found that
plaintiff did not meet the heightened pleading requirement for fraud under Rule 9(b) to plead fraud with
particularity and granted plaintiff 20 days to amend his complaint. Defendants also did not demonstrate
that Louisiana's intentional infliction of emotional distress common laws would interfere with the HEA's
requirements regarding contacts and wage garnishment. The court denied defendants' motion to
dismiss plaintiff's state law claims on preemption grounds, but noted that the court would dismiss the
claims if defendants demonstrated that they merely complied with applicable federal regulations when
they contacted plaintiff and garnished his wages.

In United States v. Moriarty, the United States District Court for the District of Minnesota dismissed a
student loan borrower's counterclaim against the government due to lack of subject matter
jurisdiction. Civil No. 08-5176 (DWF/SRN), 2009 WL 995579 (D. Minn. Apr. 14, 2009). The court
dismissed the counterclaims because the HEA provided no private cause of action for the student loan
borrower. The student loan borrower applied for and obtained five Stafford student loans totaling
$14,375 from First Federal Savings and Loan Association between 1980 and 1984. The loans were
guaranteed by the Higher Education Assistance Foundation (HEAF). The loans were transferred to the
HEAF, which transferred them to the DOE, which referred them to the government for litigation. The
government asserted that the loan borrower was not enrolled on a half-time basis until after her nine-
month grace period expired, and therefore her loans properly entered repayment status. According to
the government, the loan borrower was in default because she failed to make any payments on her
loans. In this action, the government sought judgment against the student loan borrower for the principal
loan amount and the pre-judgment and post-judgment interest and fees and costs associated with the
loans. The loan borrower based her fundamental argument on the interpretation of "deferment" and
"grace period" and whether those time periods were date or month specific. The court agreed with the
government that the time periods were date specific and therefore the loan borrower's grace period
ended on December 20, not the end of the month as the loan borrower contended. Once her loans were
placed in default, she was no longer entitled to receive any deferments. The court granted the
government's motion for summary judgment.

The student loan borrower brought a counterclaim against the Department of Education seeking to
recover $3,840 in Treasury Offset Program offsets, $10,594 in interest for 15 years, and $20,060 in
losses allegedly caused by lost business income and damaged credit since 1991. The government
contended that the student borrower's counterclaim should be dismissed because the HEA does not
provide a private cause of action and the plaintiff was required to comply with the Federal Torts Claim
Act to establish jurisdiction because her claim sounded in tort. The court agreed with the government
and dismissed the loan borrower's counterclaim with prejudice.

Student Loan Collection Actions Are Not Barred by the Statute of Limitations
Other student loan borrowers tried other defenses, to no avail. A law school graduate attempted to use
the statute of limitations defense to escape payment of her student loans. The law school graduate
asserted that Mountain Peaks Financial Services' student loan collection action was barred by
Minnesota's six-year statute of limitations. Mtn. Peaks Fin. Servs., Inc. v. Roth-Steffen, 778 N.W.2d 380
(Minn. App. 2010). The court held that the action was not time-barred and affirmed the trial court's
summary judgment for Mountain Peaks. The law graduate, Catherine Roth-Steffen, graduated from law
school with over $100,000 in student loan debt from a dozen lenders, including a $20,350 loan borrowed
from the Missouri Higher Education Loan Authority (MOHELA). MOHELA assigned ownership of the
loan to Guarantee National Insurance Company, which assigned it for collection to Mountain Peaks
Financial Services, Inc. Mountain Peaks filed a motion for summary judgment to recover the outstanding
balance plus additional interest. Roth-Steffen argued that the loan was not hers, the motion was not
supported by admissible evidence, and the action was barred by Minnesota's six-year statute of
limitations for collection on promissory notes. Mountain Peaks claimed that it was exempt from
Minnesota's statutes of limitation because it was a valid assignee of MOHELA, a lender in agreement
with the Secretary of Education under 20 U.S.C. § 1091(a)(2)(B).

Although § 1091(a) of the HEA does not extend its statutes-of-limitation exemption to assignees of
named lenders, the court applied other rules of construction. Roth-Steffen argued that the court should
apply expressio unius, meaning when the "items expressed are members of an associated group or
series, justifying the inference that items not mentioned were excluded by deliberate choice, not
inadvertence." Following this logic, the statute would not apply to an assignee. The court determined
that it must also look at common law, which allows an assignee to step into the shoes of the assignor
and "provides the assignee with the same legal rights as the assignor had before
assignment." According to the court, the application of § 1091(a) to assignees of named lenders was
consistent with the common law. Additionally, the legislative history suggests that Congress considered
the common law of assignment when it amended the statute. Looking to other jurisdictions, the court
recognized that the majority of courts hold assignees entitled to the benefit of the federal statute of
limitations when they acquire loans made under federal programs administered by the Federal Deposit
Insurance Corporation, the Federal Savings and Loan Insurance Corporation, and the Small Business
Administration. Therefore, the court concluded that HEA § 1091(a) applied to assignees of named
lenders, and therefore the action was not time-barred by Minnesota statutes of limitation. The court
granted summary judgment in favor of Mountain Peaks.

If a Loan Borrower's Signature Appears on the Loan Promissory Note, the Borrower Is on the
Hook for Payment

Another loan borrower argued that he never received the loans because he never applied for them. The
court ruled against him because his signature appeared on the promissory notes. United States v.
White, No. 5:08-CV-348-F, 2009 WL 3872342 (E.D.N.C. Nov. 18, 2009). White, the loan borrower,
signed four separate Guaranteed Student Loan Promissory Notes totaling $7,500. The government
alleged that White defaulted on repayment of his loans. Due to this default, the Higher Education
Assistance Foundation (HEAF) paid the loan holder for the four loans and took the assignment of the
loans. Three years later, the debts were assigned to the DOE. The DOE attempted to collect the debt
through approximately fifty letters and private collection agencies. After it did not receive payment of the
debt, the DOE referred the debt to the Department of Justice for litigation. White answered the complaint
stating, "Defendant's debt with the Department of Education was exonerated and satisfied as evidenced
by documentation received from the Creditor."

To establish a prima facie case of student loan default, the government must prove three elements: "(1)
the defendant signed a promissory note for a student loan; (2) the government owns the promissory
note signed by the defendant; and (3) the defendant has defaulted on the note." Id. The government met
its burden by introducing the signed Guaranteed Student Loan Promissory Notes and the Certificate of
Indebtedness from the DOE in which a loan analyst certified under penalty of perjury that White had
defaulted on the loan. The burden shifted to White to prove that the loan did not exist, was extinguished,
or that he fully paid the loans. White argued that he never received the funds. He argued that he did not
apply for a loan and used grants to pay for his education. The court determined that White did not meet
his burden of showing that a genuine issue of material fact existed. The court went on to consider the
possibility that White's loans were eligible for administrative discharge pursuant to 20 U.S.C.
§ 1087(c). This possibility did not prevent the court from allowing the government's summary judgment
motion, but left open the option for White to pursue an administrative discharge.

A Glimmer of Hope for Student Loan Borrowers as Lawyers Get More Creative in Bringing
Claims

As students, especially litigious lawyers, emerge from college or graduate school with unprecedented
amounts of loan debt, we may see changes in the way student loan borrowers attempt to litigate
controversies involving student loans. In a February 2010 filing, a Seattle attorney claimed that he was
"unrelentingly" harassed by automatic-dialed phone calls from the loan company SLM Corp., or Sallie
Mae, over his law school loan. Arthur v. SLM Corp., No. C 10-0198 JLR (W.D. Wash. Feb. 2, 2010). The
suit is intended to be a class action seeking injunctive relief and damages. The loan borrower claimed
negligent and knowing and/or willful violations of the Telephone Consumer Protection Act, 47 U.S.C. §
227 (TCPA). Plaintiff seeks $500.00 in statutory damages for every call in which Sallie Mae negligently
violated the TCPA, and treble damages, as provided by the statute, of up to $1,500.00 for each call in
which Sallie Mae willfully and/or knowingly violated the TCPA.

As this case and others make their way through the judicial system, the way student loan disputes are
litigated will likely change. There have been many influential decisions in the past year, which will
expectedly continue for at least the next several years. If these trends continue, however, recent
graduates should probably push aside any fleeting thoughts about avoiding law school loan payment
responsibilities and face the reality that borrowers will not likely prevail in court.

Suzanne M. Young is an associate at Zelle, McDonough & Cohen LLP in Boston, Massachusetts. She
practices in the area of commercial litigation, insurance coverage, and bad faith. Suzanne is currently a
member of the DRI Insurance Law Committee and YLC Publications Subcommittee.

Goooaaaal!
by Bill Hubbard

As the greatest sporting event on earth gets underway-- for the uninitiated among you, I
refer of course to the World Cup -- it has occurred to me that we as lawyers ought to treat
business development like a soccer match. As a senior associate, the growing pressures of
business development can sometimes overshadow my enjoyment of practicing law. To
some (including my brother-in-law, a fellow lawyer, who admits to having been a cross-
country runner of all things), a 0-0 tie seems to be a waste of ninety minutes. Not so. The
beauty of the game is in the playing of the match rather than in the final score; one just has to
understand the game. The magic of soccer is not found in the shots and headers that make their way to
the back of the net, but rather in the steady, patient development of scoring opportunities.

Watch England play, and see soccer at its best. The defensive backs will pass the ball forward to the
center midfielder who in turn pushes it out to the wing. As the opposing team reacts and adjusts, the
winger, seeing the route blocked, drops the ball backwards and across the pitch and the team works the
ball up the other sideline. Each time the opposition again reacts and adjusts. England continues to work
the ball, testing other avenues, contemplating other possibilities. Slowly, methodically, England
advances ten yards at a time, until they are within the red zone with an opportunity to score. More often
than not, the shot goes wide, goes high, hits the post, or is blocked by the goalie. But, England will gain
the ball back and slowly, methodically, press forward once again. The joy of the game is in the passes,
attacks, and counterattacks.
Business development should be treated the same: not every speech or article or client alert needs to
end in a client engagement. Nor should everyone met at a conference, your kid's school play, or
neighborhood picnic be measured in terms of referrals. Instead, the pursuit should be enjoyed: just
meeting people, forming real friendships and lasting relationships. Not every attempt will be successful;
not ever idea will work, but slowly, methodically push forward and find yourself in the position to take a
shot. Many will go wide or miss the mark.

For now, my game is still a lot more like the USA's, but someday, I hope to play like England.

Bill Hubbard is an Associate at Thompson Hine LLP, who played varsity soccer at the College of
Wooster.

Substantive Committee Article

Managing Legal Risk in the New Era of Corporate Transparency
by Amanda J. Sanchez

Numerous events within the last few years have lent themselves to what could be
considered the perfect storm for regulatory reform. While opinions may vary as to why the
level one company is subjected to versus another may be disparate, one thing remains
clear: Corporations are being viewed and examined with increasing levels of scrutiny;
scrutiny that is manifesting in the form of new regulations and new reporting requirements.

The reasoning behind the shift is perhaps less compelling, and potentially less problematic, than the
increase in responsibility that those charged with ensuring legal and/or corporate compliance will face
in the future. Additionally, this increase comes at a time when the economy may not lend itself to an
increase in company resources (of any kind).

This changing scheme reinforces the value and necessity in leveraging the partnership that exists
between in-house and outside counsel. While it is true that these partnerships are crucial in adhering to
the letter of the law when issues arise, it is arguably more important to leverage these partnerships and
the expertise that can flow from them in a proactive fashion, such that noncompliance and any resulting
reporting requirements are avoided entirely. Perhaps the most effective way to achieve this end is to
remember to stick to the basics.

Remember: Ask the hard questions and give the hard answers.

Those serving as in-house counsel practice law in a very unique way. And with this unique practice
come unique perspective, insight and responsibility in serving the business client effectively, ethically
and responsibly. In some cases those in-house counsel may be privy to information that could lend
itself to identifying an issue or potential issue before it is identified as such by the business. In these
situations it is imperative that in-house counsel analyze and synthesize any information received in
response to a potential legal or regulatory inquiry. The information however should not be considered in
a vacuum. In other words, what do the company's business records or practices say about a particular
incident, trend or transaction? This type of supporting information can be crucial when building and, if
need be, defending a company's methodology and timeline (see below).

Along these same lines, in-house counsel will be approached by the business on any number of
issues. Regardless of the issue, the goal is invariably to elicit guidance. This methodology puts in-
house counsel in a position to act proactively rather than retroactively when a company is considering
one path versus another. And while this may also require in-house counsel to give unpopular and/or
unwanted recommendations, it is a necessary and critical function for any in-house practitioner. It is
also important to remember that the long-term effects inherent in this type of proactive counseling can
provide innumerable benefits to a company.
While a company's business information may not generally make its way to outside counsel unless and
until there is a formal claim, inquiry or investigation, a company may benefit from an analysis similar to
one described above and undertaken by its outside counsel. Despite the fact that outside counsel have
limited access and visibility to information within a company, in-house counsel would be remiss if they
did not attempt to leverage the most unique attribute its outside counsel can offer: a different
perspective.

Just as in-house counsel have a unique perspective into a business, so too do those performing legal
functions from the outside. In order to maximize this attribute and derive the most value from the in-
house/outside partnership, outside counsel should not be tentative in questioning information received
from a client/company. If information seems incomplete or inaccurate, ask the follow-up questions and
bring closure or completeness to the concern. The follow-up may lend itself to the discovery of an issue
previously unnoticed by the business.

Remember: Response time matters.

In the face of noncompliance and/or reporting obligations the questions regarding who knew what,
when they knew it, and what they did about it (if anything) will take center stage. This will likely be true
irrespective of the level or existence of in-house or outside involvement.

Inherent in the timeline analysis will be an examination into many facets of a company's business
structure. A primary consideration will likely present itself in the form of analyzing a company's
methodology in resolving or reporting an issue, which will inevitably include an examination of who was
involved in any aspect of the issue in question. In other words, were the appropriate entities or persons
within a company properly engaged—including that of legal counsel—in driving the issue to
resolution?

The examinations will likely call into question the veracity of any work, data and analysis (or lack
thereof) relied upon when assessing an issue. This makes it essential for any direction and/or counsel
to be provided in response to a thorough and complete understanding of all of the issue(s). (See ask
the hard questions, above.) Invariably, the time a company took to acknowledge and/or address an
issue will be scrutinized. This is a potentially double-edged examination. Not reacting soon enough
may increase the risks to a company. At the same time, doing too much too soon absent a thorough
and deliberate methodology may present the same or additional risks.

While the scope of new regulatory schemes remains unclear, those serving corporations in a legal
function will be well served by relying on the basics and any existing partnerships to serve as solid
building blocks going forward. And while much has changed, and is changing, one thing remains the
same: the practice of defending corporate clients will continue to be a fluid and continual balancing act.

Amanda J. Sanchez is a Senior Attorney for Deere & Company in Moline, Illinois, who handles product
litigation for the company's tractor factories and John Deere Landscapes/LESCO. In addition to her
litigation practice, Ms. Sanchez also advises her clients on prelitigation strategies, product safety
matters and product related regulatory compliance. She is currently a member of the DRI Young
Lawyers Steering Committee, serving as Chair of the Corporate Counsel Subcommittee.
Leadership Profile

Leadership Profile
Rick Griffin is a partner at Martin, Pringle, Oliver, Wallace & Bauer, LLP, in Wichita,
Kansas. His practice focuses on commercial litigation, primarily in the areas of products
liability, energy law, and bankruptcy litigation. Rick is a member of the Young Lawyers,
Product Liability and Commercial Litigation (Financial Institutions and Creditors' Rights
SLG) Committees of DRI, and has served as the Chair and Vice-Chair of Young Lawyers
Law School Initiative Subcommittee and as Vice Chair of the Supreme Court
Subcommittee.

How did you get involved with DRI?

I became involved with DRI after discussing it with several of the partners in my firm. They had been
involved with DRI for quite a while at the time and had great things to say about involvement with the
organization.

How has DRI helped you in your practice?

The networking and educational opportunities have been a great benefit. I have received numerous
referrals over the years and the seminars have certainly helped me develop as an attorney.

When you are not practicing law, what do you enjoy doing?

This has changed significantly for me over the past few years. I am definitely drawn now to watching
my two girls grow up right in front of me; it's amazing how much they change every day. The small
remaining percentage of my time is devoted to sports (watching and playing) and reading.

If you were not a lawyer, what would you be?

That's hard to imagine, but I probably would have stayed on track for medical school....Dr. Griffin has a
nice ring to it.

What is the proudest moment of your legal career thus far?

Being selected for the Whisper's Leadership Profile, of course!

If they were making a movie of your life, what actor would play you?

Daniel Craig. I think the British accent would help me out.

If you could have a conversation with anyone of your choosing, alive or dead, who would that be?

Abe Lincoln...by all accounts he was a first rate story-teller and he certainly achieved a great deal in a
somewhat unconventional manner.

How do you think your adversaries would describe you if they had to explain what type of lawyer you
are?

Easy to work with, but very persuasive.

What's on your iPod right now?

Thousands of songs; no country music.

Last book read?

Pirate Latitudes by Michael Crichton
Last vacation locale?

London and Paris

Recent Amendment to Trademark Act Changes Rules for Maintaining a
Trademark Registration
by Loretta O. Hoskins

On March 17, 2010, President Obama signed into law the Trademark Technical and
Conforming Amendment Act of 2010 (the "TTCAA"), Public Law No. 111-146, 124 Stat. 66
(S. 2968, 11th Cong. (2010)). The TTCAA was passed in the Senate by unanimous
consent on January 28, 2010 and passed by voice vote in the House on March 3,
2010. The stated purpose of the TTCAA is to "make certain technical and conforming
amendments to the Lanham Act." The Lanham Act, also known as the Trademark Act of
1946, 15 U.S.C. §§ 1051-1141n, "provides for the registration and protection of trademarks used in
commerce" and prohibits a number of activities, including trademark infringement, trademark dilution,
and false advertising.

The TTCAA makes a number of small technical and conforming amendments to the Lanham
Act. However, the legislation makes more significant changes to 15 U.S.C. §§ 1058 and 1141k,
regarding maintaining a registration by filing affidavits of continued use or excusable nonuse. The
TTCAA also amends trademark law to extend the grace period from three months to six months for
filing affidavits of continued use to extend international registrations.

The TTCAA makes the following changes to the Lanham Act:

•Substitutes the word "owner" for "registrant" throughout the Lanham Act.

•Inserts "United States" before "Patent and Trademark Office" throughout the Lanham Act.

•In the event of a surrender, cancellation, or amendment to a trademark, requires that an appropriate
entry be made on the records of the United States Patent and Trademark Office ("USPTO") and on the
certificate of registration. (Prior law allowed the entry to be made on a certified copy of the certificate if
the certificate was lost or destroyed.)

•When the USPTO makes a material mistake in a registration, requires that a certificate detailing the
mistake be attached to each printed copy of the registration. (Prior law required the certificate detailing
the mistake to be attached to each printed copy of the registration certificate.)

•Imposes time frames and other requirements for filing affidavits of use or excusable nonuse of a
trademark, newly-structuring and amending 15 U.S.C. §§ 1058 and 1141k.

•Trademark owners may correct deficiencies in all required maintenance filings outside of the statutory
period for filing, upon the payment of a deficiency surcharge. Such deficiencies now specifically
include instances when the affidavit was not filed in the name of the owner of the registration.

The United States is a signatory to the Protocol Relating to the Madrid Agreement Concerning the
International Registration of Marks, an international treaty allowing a trademark owner to seek
registration in any of the countries that have joined the Madrid Protocol by filing a single
application. This means that a U.S. trademark owner pays the USPTO a nominal fee to expedite the
necessary paperwork overseas, making it easier and cheaper for that owner to acquire protection for
his intellectual property in other countries. The TTCAA also amends the Lanham Act to provide a six-
month grace period for filing an affidavit of continued use for a Madrid Protocol extension of protection
immediately following the statutory time period. Prior to the amendment, no grace period existed after
the six-year period following the date of registration in the United States, and only a three-month grace
period existed following the expiration of each ten-year period after registration. The newly-enacted
grace period matches those for other trademark registrants.

Finally, the TTCAA also includes a study provision directing the Intellectual Property Enforcement
Coordinator and the Department of Commerce to evaluate and report on the treatment of small
businesses involved in trademark litigation and to determine the best use of the Federal Government's
services to protect trademarks and prevent counterfeiting.

Loretta O. Hoskins is an associate in the New Orleans, Louisiana office of Chaffe McCall, L.L.P., where
she concentrates her practice on commercial litigation and also participates as a member of Chaffe
McCall's appellate section. Her practice includes all areas of commercial litigation, including banking
and contract disputes, lender liability defense, insurance matters, and ERISA claims. Loretta can be
reached at hoskins@chaffe.com
or 504.585.7264.
Updates

Recent Opinions from the U.S. Supreme Court
by Lynn S. Darty

May 2010 was a groundbreaking one for the Supreme Court. On May 10th, President
Obama announced Solicitor General Elena Kagan as his nomination to replace retiring
Justice John Paul Stevens. Kagan already has made the rounds on Capitol Hill with key
Senators in preparation for her upcoming confirmation hearings.

The Court also announced that due to security concerns, visitors will no longer pass under
the famous words "Equal Justice Under Law" and enter the Court through its massive bronze front
doors. Instead, the public will enter on the plaza level through a security checkpoint. Visitors will be
able to leave the Court through the main entrance. For those who have not had the opportunity to see
the beautiful building or the Court in session, I urge you to go – it is truly an inspirational
experience. DRI Young Lawyers offers two opportunities each year to be admitted to the Court which
allows you to be a member of the bar of our Nation's highest court.

In addition to these new developments shaping the Court, the Court also released several opinions
which could have a tremendous impact on defense lawyers:
In Stolt-Nielsen v. AnimalFeeds, the Supreme Court held, in a 5-3 decision, that class arbitrations are
not allowed under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., when the contract says nothing
regarding arbitration. Although potentially a game changer, the majority opinion, authored by Justice
Alito, indicates potential limitations in the scope of the Court's decision. First, the decision emphasized
the specific facts of this case – particularly, the parties' stipulation that there was "no agreement" on the
issue of class arbitration. Second, although the Court acknowledged that an arbitrator may infer the
implicit consent of the parties, it made clear that it was not deciding what contractual basis could
support a finding that the parties agreed to authorize class arbitration. The Court's opinion can be found
at http://www.supremecourt.gov/opinions/09pdf/08-1198.pdf.

In Perdue v. Kenny A., the Court reversed a district court's award of a $4.5 million attorney fee
enhancement in a case that uncovered deficiencies in Georgia's foster care system. In awarding the
enhancement (in addition to a $6 million lodestar attorney fee award), the district court found that
plaintiffs' counsel "brought a higher degree of skill, commitment, dedication and professionalism to this
litigation than the Court has seen displayed by the attorneys in any other case." Writing for the majority,
Justice Alito reasoned that "there is a strong presumption that the lodestar is sufficient; factors
subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the
lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not
adequately take into account and proving with specificity that an enhanced fee is justified." While the
Supreme Court did not rule out a "performance enhancement" for exceptional legal work, the Court
held that enhancements are warranted only under "extraordinary circumstances." Concurring in part
and dissenting in part, Justices Breyer, Stevens, Ginsburg and Sotomayor agreed with the majority's
conclusion that fee enhancements are allowed, but opined that the district court is in the best position
to make such a determination.
http://www.supremecourt.gov/opinions/09pdf/08-970.pdf
The Court also released several other opinions of note for those specializing in securities and ERISA
litigation:

In Merck & Co. v. Reynolds, the Court held that the two-year statute of limitations for a private
securities fraud action found in 28 U.S.C. § 1658(b) begins to run when a plaintiff discovers, or a
reasonably diligent plaintiff should have discovered, "the facts constituting the violation"—whichever
comes first. The Merck decision likely will reduce the number of private securities fraud suits dismissed
on limitations grounds as defendants will have a more difficult time than in the past showing that
securities law claims are time-barred. DRI filed an Amicus Brief in Support of Merck.
http://www.supremecourt.gov/opinions/09pdf/08-905.pdf

In Conkright v. Frommert, the Court held that a United States District Court should have deferred to an
ERISA plan administrator's "reasonable" interpretation of the plan's terms if such an interpretation is
reached outside the context of an administrative claim for benefits. "We held in Firestone Tire & Rubber
Co. v. Bruch that an ERISA plan administrator with discretionary authority to interpret a plan is entitled
to deference in exercising that discretion. The question here is whether a single honest mistake in plan
interpretation justifies stripping the administrator of that deference for subsequent related
interpretations of the plan. We hold that it does not," Chief Justice Roberts wrote for the majority.
http://www.supremecourt.gov/opinions/09pdf/08-810.pdf

Two recent decisions garnered significant media attention due to First Amendment concerns.

Salazar v. Buono presented an Establishment Clause challenge to a cross that members of the
Veterans of Foreign Wars placed on federal land in 1934 to honor American soldiers. As a result of the
litigation, a 2004 federal law transferred the land to the VFW. Lower courts found that the cross violated
the Establishment Clause and invalidated the land transfer. The divided Court overturned the lower
court's ruling ordering the removal of the cross. Six justices wrote separate opinions, none speaking for
a majority of the court. "Although certainly a Christian symbol, the cross was not emplaced on Sunrise
Rock to promote a Christian message," Justice Kennedy wrote in the lead opinion. "Rather, those who
erected the cross intended simply to honor our nation's fallen soldiers." In one of the two dissenting
opinions, Justice Stevens said the transfer of the property to the Veterans of Foreign Wars would not
remove the government's religious endorsement: "Making a plain, unadorned Latin cross a war
memorial does not make the cross secular," Stevens wrote. "It makes the war memorial sectarian."
The case now will be returned to the district court to further address the land transfer.
http://www.supremecourt.gov/opinions/09pdf/08-472.pdf

In United States v. Stevens, the Supreme Court struck down 18 U.S.C. § 48, which prohibits the
depiction of animal cruelty in commercial expression, as facially invalid under the First Amendment.
The Court, in an opinion by Chief Justice Roberts, noted that it had previously excluded "a few historic
categories" of speech from the protection of the First Amendment, but concluded that "depictions of
animal cruelty should not be added to the list." However, the opinion stressed that it was not restricting
the power of government to punish animal cruelty. Justice Alito, the lone dissenter, wrote: "[t]he Court
strikes down in its entirety a valuable statute. . . that was enacted not to suppress speech, but to
prevent horrific acts of animal cruelty — in particular, the creation and commercial exploitation of 'crush
videos,' a form of depraved entertainment that has no social value." The complete opinion can be found
at http://www.supremecourt.gov/opinions/09pdf/08-769.pdf.

Help Wanted
Calling all Young Lawyers practicing in Alaska, Arkansas, Southern California, Colorado, Connecticut,
Delaware, Florida, Georgia, Illinois, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, New Mexico, Nevada, Oklahoma, Oregon, Pennsylvania, Rhode Island,
South Carolina, South Dakota, Texas, Virginia, Washington D.C., Wisconsin and Wyoming! We need
your help!

The State and Local Defense Organization (SLDO) Subcommittee is looking for young lawyers to act
as the liaison between the DRI Young Lawyers Committee and various state and local defense
organizations. SLDO representatives will assist the subcommittee with the marketing of the Young
Lawyers Seminar, webconferences and other Young Lawyer activities throughout the year. This is an
excellent opportunity to become involved with the DRI and network on both a national and local level
with a minimal time commitment.

There are currently openings for SLDO representatives in the following states/jurisdictions:
Alaska, Arkansas, Southern California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois,
Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, New Mexico,
Nevada, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas,
Virginia, Washington D.C., Wisconsin and Wyoming!

Additionally, the SLDO Subcommittee is looking for representatives to represent large metropolitan
areas. If you are interested in representing your city/local defense organization, please let us know.

To be eligible to serve as an SLDO rep, you must be a member of your state/local defense
organization.

For additional information, or to express your interest in being a representative, please
contact Sarah Madsen (Chair of the SLDO Subcommittee) at smadsen@larsonking.com and Kevin
Baltz (Vice Chair of the SLDO Subcommittee) at kbaltz@millermartin.com.

Subcommittee Updates

Legislative Liaison Subcommittee
The Legislative Liaison Subcommittee has had a tremendous year
of activity and service to DRI and its members. Chair Paul A.
Wilhelm of Dykema in Detroit leads this Subcommittee, along with
Vice-Chairs Joseph W. Ballard of Lewis, King in Knoxville, and
Marie A. Trimble of Gordon & Rees in San Francisco. The
Legislative Liaison Subcommittee includes 78 active DRI Young
Lawyers, plus occasional other contributors, who monitor legislation of interest to the Defense Bar and
our clients. DRI relies weekly on this Subcommittee's legislative tracking, and reports the summaries in
The Voice -- the e-publication of Big DRI. Young Lawyers who draft these reports are given credit by
name (and firm name) in The Voice for each contribution. A team of 68 appointed Young Lawyer
liaisons monitors all 50 states (with some sharing duties). These state liaisons draft bi-weekly reports
for the duration of their state's legislative session, and monitor any special sessions.
In addition, a federal team of eight Young Lawyers from across the country, led by team captain
Michele Hale DeShazo of Kuchler Polk in New Orleans, monitors Congress and reports on federal
legislation. These federal liaisons draft reports that DRI also publishes weekly in The Voice, with credit
given to the contributors. DRI has expressed its appreciation to this Subcommittee for its excellent
reporting.

The Legislative Liaison Subcommittee also provides monthly articles for The Whisper on the most
relevant legislative initiatives across the land, with articles drafted by our own young lawyers. This
outlet allows young lawyers to test their publication skills before other young lawyers with an article of
very reasonable length. If you have a proposal for an article to go out in the coming months, please
contact Vice Chair Joseph Ballard at jballard@lewisking.com.

Most recently, the DRI Employment Law Committee has expressed interest in partnering with the
Young Lawyers Legislative Liaison Subcommittee to assist the Legislative/Rulemaking Subcommittee
within Employment. Paul Wilhelm is spearheading this effort.

This Subcommittee remains a great resource to DRI and a tremendous point of entry for young lawyers
seeking to serve the professional community while gaining recognition and leadership opportunities.

Subcommittee Updates

Civility and Professionalism Initiative Subcommittee
Jacqueline Sheridan, the Vice Chair of the Initiative, and I, the Chair, are
excited about bar year 2010 and the Civility and Professionalism Initiative.

As part of our planning for the 2010 year, we encourage anyone interested in
civility and professionalism to contact us about getting involved. There are
numerous ways that DRI young lawyers can become involved with the
Initiative, and we will welcome all who show an interest in participating. I would like to take this
opportunity to explain what the Initiative is, and to offer some suggestions about how to become
involved in the Initiative.

The primary goal of the Initiative is to further civility and professionalism in the legal environment. The
Initiative seeks to deliver and reinforce the message that civility and professionalism should be the
standard learned by all attorneys during those first formative years when lawyers begin to learn how to
interact with one another, their clients, and their community as a whole. The goal of the initiative is to
reach young lawyers at that critical juncture of their careers. All of the Initiative's plans in bar year 2010
are intended to further this goal.

The Initiative is looking forward to publishing two more articles for the Whisper this year, and we are
currently seeking authors with substantive topics on ethics and professionalism. An article published in
the Whisper by our subcommittee can either focus on a specific or fact-driven ethical scenario that
young lawyers often face, or the article can simply address the author's experiences and
recommendations on how best to maintain civility and professionalism in the legal community. If you
are interested in authoring an article for the Whisper, let us know.

Finally, we are open to other suggestions about how to achieve the Initiative's goals. We encourage
and welcome your involvement. If you are interested in becoming involved in the Initiative please
contact me, Robin Beardsley, at rbeardsley@sirote.com or Jacqueline Sheridan at
jsheridan@ulmer.com.
The Whisper Subcommittee
The Whisper Subcommittee has been hard at work soliciting timely and
interesting articles and putting together the monthly newsletter for the Young
Lawyers Committee.

We are excited to have recently introduced a couple of new features that we
hope you also have enjoyed. In the May issue, the Whisper began publishing
updates on recent United States Supreme Court decisions. We thank contributor Lynn S. Darty for
spearheading this new section, and for authoring it monthly. In addition to this monthly report in the
Whisper, please look for summaries and links to forthcoming opinions on the YL Facebook page,
Linked In and the DRI Blog shortly after their release by the Court.

In April, we premiered the Whisper's newly designed "Leadership Profile," which features a Question &
Answer format. Jason Wasserman was our guinea pig profilee, and we hope you enjoyed reading
about his self-described similarities to both Matt Damon and Will Farrell as much as we did! We hope
you will continue to enjoy learning similar quirky facts about your fellow Young Lawyers Committee
members in issues to come.

In addition to these new features, our Young Lawyers Committee works hard to supply the Whisper
with interesting monthly feature articles, updates on legislative developments, features on substantive
topics such as diversity and women in the practice of law, and updates on upcoming Young Lawyers
events. We're always looking for news about our Committee members, both in and outside of the
practice of law, so please send us your news! The Whisper Subcommittee Chair is Eileen Rumfelt of
Miller & Martin, PLLC in Atlanta, Georgia (erumfelt@millermartin.com), and the Vice Chair is Christiane
Fife of Schwabe, Williamson & Wyatt in Portland, Oregon (cfife@schwabe.com).