Every year, litigators from across the INBLF network meet in Chicago to discuss and share insights on legal issues that are directly impacting clients and the practice of law.
This Q&A roundtable is a preview of this year’s event and brings together the featured speakers from our 2024 INBLF Litigation Fly-In to discuss some of these issues. The Fly-In is scheduled for Friday, June 21, bringing together lawyers from across the US and Canada.
Issues Before the U.S. Supreme Court
Lawrence S. Ebner
Capital Appellate Advocacy PLLC, Washington, DC
Nancie G. Marzulla
Marzulla Law Firm, Washington, DC
Q: Tell us about the Supreme Court panel that you are organizing for this year’s INBLF Litigation Fly-In.
A: INBLF is fortunate to include an impressive group of appellate litigation boutiques from around the United States:
- Alexander Dubose & Jefferson LLP (Austin, Dallas, Houston, San Antonio)
- Capital Appellate Advocacy PLLC (Washington, D.C.)
- Complex Appellate Litigation Group (San Francisco, Los Angeles, San Diego, Newport Beach)
- Mauro Lilling Naparty LLP (Woodbury, NY)
- Reeves Law LLC (St. Louis)
- SpencerWillson, PLLC (Salt Lake City)
We anticipate that an appellate litigation specialist from each of these firms will participate in the 90-minute Supreme Court panel that we will be moderating.
Q: What will your panel cover?
A: Our panelists will highlight about 10 recent or impending Supreme Court cases involving issues that are important to INBLF litigators. The specific cases and issues are somewhat of a moving target because the Court will be issuing decisions from early May through the end of June.
Q: Can you provide a few examples?
A: One highly anticipated ruling will be on the future of “Chevron deference” to federal regulatory agencies’ interpretations of the statutes they administer. Other upcoming decisions that we expect to cover involve the relationship between First Amendment freedom of speech and social media “content moderation” and the question of whether bankruptcy plans can properly include third-party liability releases.
Some important cases that we will address already have been decided, such as two significant takings law decisions, and a ruling on the scope of the Federal Arbitration Act’s “transportation worker” exemption.
Q: So a broad variety of Supreme Court cases will be discussed?
A: Yes, we are certain that there will be cases of interest to every lawyer who attends the fly-in event. And we will be sure to invite questions and comments.
Discovery on Discovery
Amanda L.B. Mulroony
Hoover Hull Turner LLP, Indianapolis
Q: What is “discovery on discovery”?
A: “Discovery on discovery” has been broadly described by courts as any discovery seeking information about a party’s preservation, collection, and retention effort. Other terminology for it includes “discovery about discovery”, “process-based discovery”, “meta discovery”, “collateral discovery” or “non-merits discovery.”
Q: What will you be discussing?
A: I will be discussing courts’ views on “discovery on discovery” disputes, how courts have responded to such disputes, and what “showing” or “burden” courts have required to be met in order to obtain this type of discovery. The presentation will also discuss how to avoid these disputes and resolve them without judicial involvement, as well as common objections to discovery on discovery. Conference attendees should feel free to bring and share their own “war stories” involving discovery on discovery and how courts in their jurisdictions have responded to or handled the dispute.
Cryptocurrency in Court: US and Canadian Experience
John Mather
DMG Advocates LLP, Toronto
Miriam Hiser
Hiser Law Firm, San Francisco
Q: You have described cryptocurrency litigation as the “Wild West.” Would you elaborate on that term?
A: Cryptocurrency is a largely unregulated area. While digital assets have existed for more than a decade, cryptocurrency speculation took off during the pandemic. Thousands of new crypto coins emerged and some saw their value explode in short order. Everyone seems to know someone that made a bunch of money off cryptocurrency. The market, however, is almost purely speculative and began to crash in late 2021. There are few actual use cases for cryptocurrency. Two of them are concealing assets and fraud. The mix of an emerging technology, massive short-term returns, lack of regulation, speculative retail investors and get-rich-quick schemes is reminiscent of the Wild West.
Q: What forms do cryptocurrency cases take?
A: They can take many forms. We have dealt with breach of contract cases where a party refused to pay out the promised cryptocurrency because the value over a year had risen to $2.5 million from $30,000. We have also been involved in multiple investment scam cases, where individuals invested in “expert” crypto investors that either lost or stole their money.
Many cryptocurrency cases involve the challenge of identifying and securing cryptocurrency assets. Cryptocurrency wallets are anonymous and so it can be impossible to know what assets any person might have. Even if you do know, freezing or securing cryptocurrency is not like freezing a bank account. There are several complex legal issues involved.
Q: In terms of commercial and bankruptcy litigation, what trends are you seeing in cryptocurrency and related fields?
A: The primary trend we are seeing is the courts grappling with how to characterize and treat cryptocurrency. It is currency? Is it property? Is it something else? Many different implications can flow from the characterization. As noted above, another major trend is how to identify and secure cryptocurrency assets.
New Article 12 of the UCC (effective January 1, 2024 in California and adopted in at least twelve other states plus the District of Columbia) creates a new class of digital assets, creating a new system of perfecting security interests in those assets and thus allowing for their negotiability.
The SEC has fought the characterization of bitcoin as a security, but after a court loss in Grayscale Invs. v. SEC in 2023, approved the first spot bitcoin ETP in January 2024. The statement it issued in conjunction with the authorization continued to warn against investment in bitcoin, calling it a “speculative, volatile asset that’s also used for illicit activity including ransomware, money laundering, sanction evasion and terrorist financing.”
AI Risks for Lawyers
Lawrence M. Friedman
Barnes/Richardson, Chicago
Q: AI is affecting nearly every sector of our economy. What do you see as the key risks related to AI for lawyers?
A: The obvious risk is naïve overreliance. We have all seen the examples of lawyers who used AI tools to write briefs or motions and did not realize that the systems can make up citations to support the argument. Eventually, someone will lose a license for that.
As a group, lawyers tend to be slow adopters of technology and even slower to change our approach to research and writing. The less obvious risk for many lawyers is that we will not see that, when properly used, AI will help lawyers provide advice more efficiently than ever. In that sense, properly deployed AI will be a boon to small and boutique firms that marshal these tools to drive out inefficiencies.
Q: How important do you think it is for lawyers to understand AI – both in terms of its risks and also opportunities it affords lawyers and law firms?
A: It is not just important; it is a requirement. The bar authorities have been clear on this. ABA Rule 1.1 (Competence), Comment 8 states “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . .”
We are at the front end of a revolution in how legal work is produced. AI is going to be embedded in the practice of law. We all need to be competent in its use to ensure that we are properly serving our clients, protecting their privileged and confidential information, and securing our own businesses against information breaches.
Visit INBLF’s 2024 Litigation Fly-In page for more information about this event in Chicago – June 20-21, 2024.