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A federal court in the United States granted a motion to compel two Chinese banks to comply with subpoenas served on their US branches, demanding records of transactions occurring in China. The same court also granted a motion to compel a third Chinese bank that has no US branches to comply with a similar subpoena for foreign records, holding that, because the bank maintains a correspondent account at a US bank, it is required by law to comply with such a demand for records. Those orders have now been affirmed by a federal appellate court in Washington, DC. This article explains the background of the case, the content of the court decision, and its importance.

Appellate caselaw on arbitration-related issues is replete with cases involving the question whether a motion to compel arbitration was properly granted or denied. Currid v. Coit Cleaning & Restoration Services, No. 01-17-00630-CV (Tex.App. – Houston [1st Dist.] 2018) presents a less common scenario: A contractor sued a homeowner for additional amounts allegedly owed under a contract for remediation of water-damage at her home. Defendant Homeowner answered the lawsuit through an attorney but did not promptly file a motion to compel arbitration. Defendant-Homeowner instead invoked the arbitration clause contained in the underlying contract in opposition to the Contractor’s motion for a final summary judgment against her. Within the same response, the Homeowner Defendant cross-moved for dismissal on the ground that the lawsuit had been filed in the wrong forum. A visiting judge granted the summary judgment for the Contractor and the presiding judge of the trial court later denied the Homeowner’s motion for reconsideration, opining that the Homeowner had brought up arbitration too late. On appeal, the Contractor defended the summary judgment on arbitration-waiver grounds. The amicus curiae brief submitted in support of the Homeowner argues that the arbitration defense was not waived procedurally because it had been timely asserted in opposition to the Plaintiff’s motion for summary judgment, and that the contractual right to arbitrate had not been waived substantively under the waiver factors the Texas Supreme Court had articulated in Perry Homes v. Cull, 258 S.W.3d 580, 593-94 (Tex. 2008). Nor had the Contractor’s waiver argument been timely under the summary judgment rule. Unlike the homeowners in Cull, the homeowner here had not brought the lawsuit in the first instance; had not switched from first choosing litigation and then seeking a transfer to arbitration for tactical reasons; had not herself substantially invoked the litigation process; and had not even defended the claim against her on the merits, insisting instead that it was being pursued in the wrong forum. The brief also addresses the matter of the arbitration clause also being a forum selection clause, which takes it beyond the procedural framework governing arbitration-related motions under the Federal Arbitration Act (FAA) and the Texas General Arbitration Act (TGAA or TAA). Date of Abstract: April 7, 2018 Date of Amicus Brief: December 26, 2017

This article provides an overview of the steps a company should take if electronic discovery is requested from it during the course of litigation. Either by seeking a protective order or by inducing a motion to compel by objecting to the discovery requests, a ruling should be obtained from the court as to the parameters and limits of the requested discovery and who bears the cost of retrieving and producing the electronic data. If production is ordered by the court, the producing party must ensure through the use of formal review measures that any privileges protecting the data are not waived. While severe sanctions may be imposed on a party who destroys electronic evidence after litigation is initiated or when it is reasonably likely that litigation will ensue, a company may prevent a broad-scale, expensive production of electronic evidence by installing prior to any litigation a system of routine organization and disposal of non-essential electronic data.

During the Clinton-Lewinsky scandal of 1998, the independent prosecutor demanded, for the first time in history, that Secret Service agents testify against the president whom they guarded. The director of the Secret Service contended that a"protective function privilege" exempted agents from such compulsion and that the violation of confidentiality involved might weaken the shield protecting the president. The judicial rulings that followed failed to reflect adequately the widely understood concept that societal decisions impinging on the presidency should generally err on the side of protecting the person and his office, unless he is manifestly derelict in fulfilling his constitutional obligations. This view recognizes both the great power and influence of the executive branch and its symbolic significance in the American system. Chronology In January 1998, the Monica Lewinsky affair burst on the national scene. In rapid succession, Lewinsky presented an affidavit in the Paula Jones case; Linda Tripp told Kenneth Starr's office that she had tape-recorded conversations with Lewinsky; President Clinton testified in the Jones suit; Attorney General Reno approved the expansion of Starr's investigation, unaware that he had any connection at all to the Jones litigation; and Clinton denied press reports that he had had sexual relations with "that woman." Starr quickly announced his intention to subpoena Secret Service agents in the White House detail and to question them about their daily observations as they worked next to the president (Farrell 1998). Lewis Merletti, director of the Secret Service, then met with lawyers from Starr's office. He had guarded Presidents Reagan, Bush, and Clinton, and he believed that Starr's actions might endanger the safety and lives of the current and all future White House occupants. Forcing agents to testify might alter their relationship with the president and might well reveal some of their methods of protection, thereby rendering it easier for potential assassins to attack the president.(1) (U.S. District Judge Susan Webber Wright used this logic in rejecting the request of Paula Jones's lawyers to subpoena the agents [Jackson and Timms 1998].) On February 10, former agent Lewis Fox claimed in a television interview in Pittsburgh that Lewinsky had spent at least forty minutes in the Oval Office with Clinton sometime in the fall of 1995. Three days later, the Justice and Treasury Departments decided to allow limited questioning of Fox by the special prosecutor. This concession failed to satisfy Starr, who then subpoenaed an agent on active duty. In response, the Justice Department filed a sealed brief on February 21, claiming a protective function privilege that would defend agents from forced disclosure. This would formalize the long-standing tradition of confidentiality of the agents and would help assure the safety of the president (Buffalo News 1998). During March and April, the pressure on the agents to testify became more intense (Cannon 1998). On April 3, Starr filed a sealed motion to compel. On April 28, he wrote to Charles Ruff, the president's counsel, disputing the existence of a protective function privilege.(2) He was now asking the president to waive a privilege whose existence he denied (Ruff 1998). The case was heard on May 13, 1998 in the U.S. District Court of the District of Columbia. The special prosecutor argued that the agents had a duty to testify (Yost 1998) and that there was no legal authority for them to refuse (Lardner and Miller 1998). The Secret Service contended that compelling agents to disclose their observations might distance the president from those who guarded him and thereby increase the hazard to his life and health (Baker 1998c). The positions were sharply etched and seemed unbridgeable. The Response of the Courts On May 22, Judge Norma Holloway Johnson rejected the Justice Department's request for the privilege (Baker 1998b). …

As a matter of public policy, a motion to compel arbitration will either be stayed or dismissed if tribal court remedies have not been exhausted. As recently as this past October, the U.S. District Court for the District of Columbia ruled in favor of the Seneca Nation of Indians, granting a stay of federal proceedings pending the exhaustion of tribal court remedies. The plaintiff in the case, LECG, LLC, had petitioned the court for a determination that the Seneca Nation had waived its immunity by acceding to an arbitration agreement included as part of a contract with LECG to render forensic accounting and consulting services. This paper analyzes the fact patterns in four prior Circuit Court decisions and casts a critical light on the applicability of those decisions to the LECG case. It also addresses the advisability of setting a high bar for proving that a party favoring tribal exhaustion is delaying proceedings. Given the standard formulation of arbitration as a "[functional] alternative to judicial litigation...providing binding determinations through presumably less expensive, more efficient and expert, and nonetheless fair proceedings," the advisability of deference to other arbiters of justice is open to debate. Finally, the paper addresses the role waivers of sovereign immunity play in balancing out the tribal exhaustion doctrine.

Publisher Summary This chapter discusses the role of neutral discovery managers as alternative for discovery dispute resolution. Over-discovery and discovery-avoidance, and the resort to the courts occasioned by both, have bogged down the judicial system with controversies over complicated and highly specialized questions of law and fact. If there is a discovery dispute, more time is expended because counsel must, under many local rules, attempt to negotiate an acceptable compromise. It is only when the parties are unable to resolve their dispute that the court becomes involved. The dispute probably will not be resolved during the period of time permitted for response to a motion for protective order, or a motion to compel. Consequently, at least two months usually elapse from the time a discovery dispute begins until judicial resolution is possible, much less likely. Appointed by the judges of the local federal district or applicable state unit, panelists would be selected for a given case through a voluntary process in which the parties and their attorneys would play a critical or even determinative role.