There is no question that technological changes have revolutionized discovery in civil litigation, particularly in cases where the parties seek large volumes of documents from their opponents. Medical device and pharmaceutical litigation come to mind. How to manage so-called “e-discovery” is on the minds and lips of many lawyers. In theory, e-discovery techniques should provide a discovering party with powerful weapons to ferret out litigants who cheat the system by hiding the ball. Unfortunately, this is not necessarily the case. Technological sophistication in the discovery process does not, by itself, guarantee integrity in the content of a party’s discovery responses. In fact, recent experience teaches that technology can be used improperly to increase the obstacle’s that a party faces in discovering the truth. For example, document or file formatting can reduce a discovering party’s ability to efficiently search documents for critical information.

I was recently reminded, however, that it is important to return to the rules of procedure occasionally as a source of protection against unprincipled discovery practices by well-heeled litigants and resourceful lawyers. In a recent case handled by our firm, the defendant produced more than two million pages of documents relating to the development and sale of a medical device. Although the production was in an electronic format, it was marked by a high degree of disorganization. It was very difficult to manage and highly trained personnel on our staff suspected that the coding and formatting of the documents had been designed to impair their usefulness. The modern-day equivalent of shuffling a pile of papers.

Courts have the power to deal with problems that arise in the brave new world of discovery problems. Many courts, however, lack the sophistication, experience or resources to handle important e-discovery disputes and problems. That’s where the rules of procedure can come in handy. Rule 34 of the Federal Rules of Civil Procedure (and most of the analogous state rules), for example, gives a producing party a choice. One choice is to identify its documents to correspond with the discrete requests served in a request for production. The other is to produce documents as kept in the “usual course of business.” In cases where there is a large volume of records, the party making a document request has a potentially significant advantage if the producing party’s responses identify how its production corresponds to the requests.

The historical reasons that the rulemakers created this choice are clear. One reason was to prevent discovery abuses via document production in “volume or disarray.” Another was to ensure production of documents “in the order in which the documents are actually kept in the usual course of business so that there is an internal logic reflecting business use.” “Second Report of the Special Committee for the Study of Discovery Abuse,” American Bar Ass’n Section of Litigation, 92 F.R.D. 137, 177-78 (1980).

Recent experience, however, teaches that some manufacturers use the “usual course of business” option to do exactly what the rule seeks to avoid, make document production in “volume or disarray.” In the case which I mention, the defendant took the position that its document production was made in the “usual course of business.” In fact, every page of the documents produced was examined, vetted and analyzed before the production took place. The defendant represented in court that a team of thirty to forty full-time outside lawyers was working on the production on a full-time basis. Free-ranging redactions, many with obviously material content, filled the production. Hundreds of thousands of pages were withheld on grounds of privilege. While the defendant was a large, sophisticated corporation with thousands of employees, there was absolutely no “internal logic” to its production.

As our frustration in working with the defendant’s production grew, I began to reexamine the purposes of the Rule 34 option and the decisions interpreting the rule. Despite the obvious importance of this issue, there is not a great deal of authority as to what constitutes production of records as maintained in the “usual course of business.” But some things are relatively clear. When a party makes this election, that party has the burden of proving that it has in fact produced its documents in as maintained “in the usual course of business.” Cardenas v. Dorel Juvenile Group, 230 F.R.D. 611, 618-19 (D. Kan. 2005).

One of the problems we were having was that the defendant had obtained internal records from different people it called “custodians” and purported to produce those records on a custodian by custodian basis. When the records were combined and produced to us, however, there was no apparent principle relating to their organization. At least one federal judge has found that this process is not authorized by Rule 34. In Scripps Clinic & Research Foundation v. Baxter Travelol Laboratories, Inc., CIV. A. No. 87-140-CMW, 1988 Westlaw 70013 (D. Del. June 21, 1998), the court explained, “Baxter . . . failed to produce the documents as they were kept in the ordinary course of business. The documents were gathered from many people and transferred to Scripps in an unintelligible manner. This is insufficient under Rule 34(b).”

Even once these failures are identified, it is very difficult to persuade a judge to do anything about it. In the case to which I refer, however, we were able to persuade the trial court that the remedy is to require the producing party go back and redo its production, by identifying those documents (and their Bates numbers) which correspond to the discrete discovery requests. The decision in Cardenas supported the trial court’s conclusion. Our defendant complained bitterly about the trial court’s ruling, particularly about the expense and effort associated with having to redo its responses to our substantial discovery requests. The interlocutory appeal that followed was dismissed.

I learned a few things from this experience. I was reminded of the importance of narrowly tailoring discovery responses. The more specific we are in our document requests, the more likely we will be able to help get the courts to pin down our opponents in providing responsive information. I also learned that we should never accept without corroboration the representations of our adversaries that their document production is based on the “usual course of business.” We should be careful about testing those representations when the need arises, and challenging them when they unduly and improperly complicate our efforts to find the truth.

You may want to put your fork down for this one. On August 5, 2008 the division of the USDA Department of Agriculture National Organic Program (NOP) governing Organic foods made an announcement “that 15 of the 30 accredited organic certifiers they recently inspected failed the USDA audit. It is clear that there are numerous violations of organic standards taking place in the U.S. and across the world” says Ronnie Cummins National Director of Organic Consumers Association.”

For those of you who are not familiar with the “engine” that runs the organic industry, allow me to provide a little history. In 1990 the Natural Organic Program was established as the “The Organic Foods Production Act of 1990”; as part of the Farm Bill a 15 member National Organic Standards Board (NOSB). The board comprised four farmers/growers, two handlers/processors, one retailer, one scientist, three consumer/public interest advocates, three environmentalists, and one USDA accredited certifying agent. Members come from all four U.S. regions.

In the last 40 years the organic community in the USA has evolved into a “multi-billion dollar alternative to energy and chemical-intensive industrial agriculture.” With the invasion of so called “organic corporations” as well as foreign importers, a number of practices have developed that not only violate “the spirit of organic integrity, but allow bogus, at times toxic, “organic” imports from foreign countries to degrade the “USDA Organic” label.”

In a recent audit by the USDA, violations were cited in relation to a French-based organic certifier, Ecocert, along with other certifiers. Quality Assurance International (QAI), North America’s largest “for profit” organic certifier, has recently come under fire  by the Organic Consumers Association (OCA). A recent article cites QAI ‘s  “loose” interpretation of standards allowing companies to “bend if not break the rules”.
Mark Kastel, cofounder of the Cornucopia Institute, a Wisconsin-based organic watchdog group, dubbed QAI the “corporate certifier of convenience for it’s propensity to certify most of the suspect large scale dairy operations that his organization is monitoring.” According to Kastel:
 “…many of these “factory farms which supply milk to Horizon (owned by Dean Foods) and Aurora Dairy (which markets under Woodstock Farms Brand) are skirting the rules by confining thousands of cows in feedlot-like conditions with minimal time grazing on pasture.”

QAI, Horizon and Aurora have responded that their interpretation of the Law is that cows must have access to pasture while ignoring the other rules that state that livestock living conditions must ”accommodate the health and natural behavior of animals which does not include being confined to a pen and feeding from a trough.” But the folks in Missouri were not buying it.

Several class action lawsuits have been consolidated into one suit against Aurora Organic Dairy Corp.; which is being accused of producing and  selling “bogus organic milk” that fails the Federal Standards in Aurora Dairy Corp Milk, No. 4:08MD01907 (E.D.Mo.).
“I know that the consumers went to great lengths to create and protect the organic label, and that’s what we’re trying to do now — is to protect the integrity of the label,” said David G. Cox of Lane, Alton & Horst in Columbus, Ohio, who is one of several plaintiffs lawyers involved in the milk class action”

As required by Law in the “National Organic Standards” USDA has called upon OCA and the organic community to implement a “Peer Review Panel” system, so that members of the organic community can police and organic standards on the part of producers, importers, and certifiers and report violations.
“As the USDA has admitted, “The National Organic Standards call for the Administrator of AMS (USDA Agricultural Marketing Service) to appoint members of a Peer Review Panel to evaluate the NOP’s adherence to its accreditation procedures and its accreditation decisions.” It’s time for the USDA to stop dragging their heels and begin the public process to set up an organic community “Peer Review Panel, so organic standards can be properly enforced.

For more information visit:

http://www.commondreams.org/archive/2008/08/08/10887/

http://www.organicconsumers.org/articles/article_13119.cfm

Tai Chi or Tai Chi Chuan is a form of Chinese martial arts. It is termed “soft or internal because it does not provoke an aggression type of style. In fact some refer to Tai Chi as being closer to a form of meditation than to martial arts.

 Regardless, it seems clear that Tai Chi can provide a low impact, effective exrcise for older Americans who desire to improve their overall health. Tai Chi relieves stress, helps to maintain a physical and mental balance, and promotes overall flexibility.

Tai Chi involves standard, very deliberate, and slow movements through a natural range of movements over the body’s center of gravity.

The Oregon Research Institute has recently reported that Tai Chi can help with the prevention of falls in the elderly population. The rsearch institutes lead rseaercher reported:

“Our results are very important from a public health perspective,” says Li. “The U.S. population is aging rapidly and falls are a leading cause of mortality and morbidity among adults age 65 and older. Falls are associated with an enormous burden to individuals, society, and to the health care system. Tai Chi, as a proven fall intervention, may have much to offer in terms of reducing the public health burden of falls and the benefits accrued for prevention.”

On a recent trip to the supermarket I noticed that the price of bananas is over 50¢ a pound, and in my home that’s a serious expense. Unlike the cause for the drastic increase in food goods related to higher fuel costs and a depletion of food storage reserves through out the world, the high cost of bananas can be attributed to more to the dubious activities of the largest producer of bananas in the world, Chiquita Brands International.

The activities on the part of Chiquita read like a Hollywood drama. Chiquita has pled guilty to   criminal activities during the past 20 years, including monetary support paid to a known terrorist organization. (http://www.msnbc.msn.com/id/17615143/).

Chiquita Brands began in 1997, through a subsidiary known as Banadex, making payment to the United Self Defense Forces of Colombia (“AUC”). The AUC was and is a dangerous terrorist organization that was created in order to combat other guerilla groups in the country of Colombia. The AUC however was reportedly not limited in its activities to that purpose. Allegedly they engaged in kidnapping and the murder of innocent civilians, as well as drug traffickers. The AUC has been a named terrorist organization every year by the United States since 2001. Most recently Chiquita Banana paid a $25 million dollar federal criminal fine for its activities in Colombia (http://findarticles.com/p/articles/mi_hb5721/is_200705/ai_n23755882)

No wonder bananas are over 50¢ a pound! American corporations should be good corporate citizens, whether they are in Colombia or in the United States and act in an ethical and humanitarian fashion.

http://www.chiquitalawsuit.com/

http://www.cbsnews.com/sections/60minutes/main3415.shtml

I think we can all agree that the 2008 race for the White House has received more media coverage than any election in history. I have certainly watched and read more campaign speeches than ever before. One thing that has struck me, however, is the Democratic candidates’ reluctance to discuss their law degrees. Sen. Obama occasionally mentions that he was a community organizer or that he taught Constitutional Law. But I have never seen him even mention that he graduated from Harvard Law School, much less that he was Editor-in-Chief of the Harvard Law Review, a phenomenal accomplishment. And I have not seen Sen. Clinton discuss that she graduated from Yale Law School.

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