AlSo iNSide Patent infringement | Social media Communications... · 2013-12-24 · Recovering Trial...

Volume 39 Number 1 FAll 2013 SectioN oF litigAtioN

Is Attorney CommunICAtIon wIth fIrm In-house Counsel PrIvIleged?

AlSo iNSide Patent infringement | Social media

FEATURES

04 Good Faith as a Defense to Induced Patent Infringement

10 Is Attorney Communication with Firm In-House Counsel Privileged?

14 Can You Tell Your Clients to Clean Up Their Facebook Pages?

ColUmnSPractice Points / 18Lessons from a Luddite:

Top 10 Tips for Visuals

by Mark A. Drummond

Civil Procedure Update / 20A Tale of Discovery under the Hague

Convention: Was the Expense Worth It?

by Charles S. Fax

Recovering Trial Technology Costs

by Natasha Saggar Sheth

Book Review / 26Aid in Navigating Pretrial Discovery Issues

by Angela Foster

DEpARTmEnTSEthics / 6Struggles in the Legal World

Keeping Watch / 9Developments in the Federal Executive,

Legislative, and Judicial Branches

Posted & Noted / 16Sightings from the Blogosphere

News & Analysis / 22

What’s Hot / 28New Developments in Committees

and Practice Areas

in ThiS iSSUEFAll 2013 VolUmE 39 nUmbER 1

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Published in Litigation News, Volume 39, Number 1, Fall 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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EDIToR-IN-CHIEF

Kristine L. Robertsbaker, Donelson, bearman, Caldwell & berkowitz, pC memphis, Tn

ExECUTIVE EDIToR

Karen L. Stevensonbuchalter nemerlos Angeles, CA

ImmEDIATE PAST EIC

Jeffrey R. Teeters buckley King lpA Cincinnati, oh

TEAm EDIToRS

Teresa Rider BultConstangy brooks & Smith, llC nashville, Tn

Christina Michelle Jordan lucas & mercanti, llp new York, nY

Anthony R. McClureporter Wright morris & Arthur llp naples, Fl

Brian A. ZemilVenable llpTowson, mD

ASSoCIATE EDIToRS

Joseph Callanan massachusetts Attorney General’s office boston, mA

Sean T. Carnathan o’Connor, Carnathan & mack llC burlington, mA

Henry R. ChalmersArnall Golden Gregory llp Atlanta, GA

Sara E. CostelloDepartment of the interior Washington, DC

Hon. Mark A. Drummond Eighth Judicial Circuit of illinois Quincy, il

Charles S. Fax Rifkin, livingston, levitan & Silver, llC bethesda, mD

Jannis E. Goodnow Evanston, il

Lisa R. HasdayDallas, TX

John W. Joyce barrasso Usdin Kupperman Freeman & Sarver, llC new orleans, lA

Katerina E. MilenkovskiSteptoe & Johnson pllC Columbus, oh

Steven J. Mintzhahn loeser & parks llp Cleveland, oh

Renee Choy Ohlendorfhinshaw & Culbertson llp los Angeles, CA

Bethany Leigh RabeGreenberg Traurig, llp las Vegas, nV

Natasha A. Saggar Shethnossaman llpSan Francisco, CA

Lindsay Sestile Columbus, oh

Jonathan B. StepanianmcQuaide blasko hershey, pA

Oran F. WhitingThe law offices of oran F. Whiting Chicago, il

Daniel S. WittenbergSnell & Wilmer llp Denver, Co

Volume 39 number 1, Fall 2013

Legal publishing sponsor of the ABA Section of Litigation

The Section of Litigation is often the vanguard of changes in today’s litigation environment, influencing the course of the law and the adversary system for the benefit of the public and the trial bar. The goal of Litigation News is to advance the art of advocacy by informing litigators of Section activities and other news of professional interest.

Litigation News (ISSN 0147-9970) is published quarterly by the Section of Litigation, American Bar Association, 321 North Clark Street, Chicago, IL 60654. Copyright © 2013 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Contact [email protected] for permission to reprint. Contents do not necessarily reflect the views of the American Bar Association or the Section of Litigation.

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CoNTRIBUTING EDIToRS

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Ian S. Clement Wong Fleming, pC philadelphia, pA

Robert T. Denny Snow, Christensen & martineau Salt lake City, UT

Angela Foster law office of Angela Foster north brunswick, nJ

Caitlin Haney The haney law Firm Austin, TX

Andrew J. KennedyColkitt law Firm indiana, pA

Pamela S. MenakerClifford law offices Chicago, il


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The U.S. Court of Appeals for the Federal Circuit recently made new law by holding that a good-faith belief that a patent is

invalid may negate the requisite intent for induced infringement. In Commil USA, LLC v. Cisco Systems, Inc., the Federal Circuit ruled that the fact-finder should consider evidence of a good-faith belief of invalidity in determining whether an accused infringer knew that induced acts constituted patent infringement.

iNducemeNt oF iNFriNgemeNt

A patentee has the right to pursue a cause of action against those who induce others to infringe a patent claim. Under the U.S. Patent Act, the patentee must prove direct infringement and prove that the person who induced infringement had a specific intent to cause the direct infringement. The specific intent requires both knowledge of the existence of the patent and knowledge that the induced acts constitute patent infringement.

In Commil, the plaintiff Commil filed a complaint in the U.S. District Court for the Eastern District of Texas for direct and induced patent infringement against Cisco. A jury found that the patent was valid and that Cisco was liable for direct infringement and awarded Commil $3.7 million in damages. The jury also found that Cisco was not liable for induced infringement.

Commil successfully moved for a new trial on the issues of induced infringe-ment and damages. Prior to the second trial, Cisco offered evidence to support its good-faith belief that the patent was invalid. The district court granted Commil’s motion to exclude the evi-dence. During the second trial, the jury found that Cisco was liable for induced infringement and awarded Commil $63.7

million in damages.Cisco appealed to the Federal Circuit,

contending that the district court erro-neously precluded Cisco from present-ing evidence of its good-faith belief of invalidity to show that it lacked the req-uisite intent for induced infringement. The Federal Circuit reversed. Citing the U.S. Supreme Court’s 2011 decision in Global-Tech Appliances, Inc. v. SEB S.A., the court noted that the knowledge requirement for specific intent may be satisfied by showing actual knowledge or willful blindness, not recklessness or negligence. The Federal Circuit held that evidence of a good-faith belief in inva-lidity may negate the requisite intent for induced infringement.

No diStiNctioN bet weeN

iNVAlidit y ANd NoN-

iNFriNgemeNt

At the outset, the Federal Circuit noted that although there is precedent allowing evi-dence of a good-faith belief of non-infringe-ment, there is no such precedent with respect to a good-faith belief of invalidity.

The court stated that it saw “no prin-cipled distinction between a good-faith belief of invalidity and a good-faith belief of non-infringement for the purpose” of specific intent to induce infringement. The court noted that an invalid patent cannot be infringed and that inducing another per-son to perform steps of an invalid patent claim would not constitute infringement. In such a case, a good-faith belief that the patent is not valid would be evidence that may negate the specific intent requirement of induced infringement.

FederAl circuit creAteS

New l Aw

“The court explicitly stated that it has not previously determined whether a good-

faith belief of invalidity would negate the requirements of the intent for induced infringement. [The Federal Circuit is] now saying that it might,” says Bill Sigler, Washington, D.C., cochair of the Patent Subcommittee of the ABA Section of Litigation’s Intellectual Property Litigation Committee. “It is clear that the court intended to create new law,” he adds.

others agree with the court’s ruling. “There is really no principled distinc-tion between believing that you do not infringe, that the allegedly infringing device or process does not satisfy all of the elements of the claim, and saying that the patent is invalid,” says michael P. Padden, Chicago, IL cochair of the Patent Subcommittee of the Section of Litigation’s Intellectual Property Litigation Committee. “If you think that the patent is invalid in a reason-able way, it is no different than thinking that there is no infringement because of a claim construction issue.”

“I think that this is an important, groundbreaking decision. It does change the intent requirements, and it raises the bar significantly,” notes Padden. “It also opens up a new opportunity for a new line of defense in the good-faith belief of invalidity. I think these are significant changes.”

whAt eVideNce iS releVANt?

Although the court held that evidence of a good-faith belief of invalidity was admissible, the court did not discuss the type of evidence that would be relevant. “The opinion did not set forth what evi-dence was excluded in the lower court,” notes Sigler. “The types of evidence that might be useful include invalidity opinions and the granting of requests for reexamination. In fact, the opinion

Good Faith as a Defense to Induced Patent Infringement

By Christina M. Jordan, Litigation News Associate Editor


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provides another incentive for accused infringers to file a reexamination.”

Invalidity opinions are opinions of counsel contesting the validity of a pat-ent, and they are used as evidence to defend a claim of willful infringement. Patent reexamination is a procedure in which the U.S. Patent and Trademark office reexamines a granted patent.

The typical practice is to obtain opin-ions to protect against claims of willful infringement. “I expect that this deci-sion would probably give grounds for more opinions in this kind of a situation. Especially, it will give greater value to opinions that examine validity,” notes Padden. It might become more com-mon to obtain opinions in infringement actions, “especially in the software and Internet-based businesses, where there are a lot of issues of divided and induced infringement that come up with their pat-ents,” Padden adds.

If it does become more common for practitioners to obtain opinions, Padden advises to “make sure the opinion is going to be well defended and is not going to be subjected to effective attack. You have to have an upstanding and independent opinion of counsel.”

iS good-FAith belieF

rebut tAble?

Judge Newman’s dissenting opinion disagreed with the majority’s decision to change the law. Newman noted that “[p]atent infringement, if proved, elimi-nates an invalid patent and thus is a total defense to infringement. However, a ‘good-faith belief’ in invalidity does not avoid liability for infringement when the patent is valid.” The majority responded in a footnote, clarifying that the major-ity does not hold “that if the inducer of infringement believes in good faith that the patent is invalid, there can be no liabil-ity for induced infringement” and that the majority does not “include a belief in pat-ent validity as a criterion of infringement.”

The majority did not explain how to rebut evidence of a good-faith belief. “How would you rebut a good-faith belief? The opinion does not provide guidance on how a patentee may rebut a good-faith belief of invalidity. one potential option would be to show that the basis of an opinion letter was faulty,”

notes Sigler. “The opinion leaves open whether the patentee can rebut the evi-dence or how the patentee would rebut the evidence,” he adds.

The practice of willful infringement in cases may provide some guidance as to how to attack an opinion of counsel to rebut a good-faith belief of invalidity. “The way you would go after opinions of counsel in the [willful infringement] area is you would try to show there was some sort of a sham—for example, the lawyer was not given the full information—or that it was woefully inadequate,” notes Padden.

Sigler adds that the opinion is “a sig-nificant piece of new law from the Federal Circuit.” The new law is particularly inter-esting “due to the prevalence of induced infringement claims now,” adds Sigler. “It merits further attention.”

r e S o u r c e S

Commil USA, LLC v. Cisco Systems, Inc., No.

2012-1042 (Fed. Cir. June 25, 2013), available

at http://bit.ly/LN391-commil-cisco.

Global-Tech Appliances, Inc. v. SEB S.A., 131

S. Ct. 2060 (2011), available at http://bit.ly/

LN391-global-tech.

Andrew R. Sommer, ABA YLD 101 Practice

Series, “Indirect Patent Infringement,” avail-

able at http://bit.ly/YLD-patent-infringement.

35 U.S.C. § 271(b), available at http://bit.ly/

patent-overview.


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ethicS

Until recently, New York Ethics Rules were silent regarding the endpoint to the lawyer’s obligation to circumvent his or her duty of confidentiality and disclose a client’s criminal or fraudu-lent conduct. In Formal opinion 2013-2, the New York City Bar Association Committee on Professional Ethics (New York Ethics Committee) found the lawyer’s obligation may last indefinitely, ending only when reasonable remedial measures are no longer available.

Rule 1.6 of the model Rules of Professional Conduct prohibits an attorney from revealing confidential information relating to the representation of a client. model Rule 3.3 provides an excep-tion to that confidentiality rule, stating if a lawyer, the lawyer’s client, or a witness called by the lawyer has offered false material evidence, the lawyer is obligated to take “reasonable remedial measures.” Under model Rule 3.3(c), the lawyer’s duty of candor continues to the conclusion of the proceeding.

In 2009, New York adopted the model Rules format and amended a number of its rules. New York did not, however, adopt the amendments to model Rule 3.3, including Rule 3.3(c). Thus, unlike the model Rules, there is no specified endpoint to the attorney’s duty to reveal criminal or fraudulent behavior to the tribunal. only Virginia, Wisconsin, and New York have adopted versions of Rule 3.3 that do not specify whether the obligation survives beyond the proceeding.

In opinion 2013-2, the New York Ethics Committee addressed whether, under New York law, an attorney was obligated to take “reasonable remedial measures” to disclose false evidence to a tribunal even though the proceeding in question had concluded. The committee asked, “How long does the obligation under Rule 3.3(a)(3) last?”

The committee refused to issue a bright-line ruling to the ques-tion. Instead, it ultimately found that “the duties imposed by [the rule] should end when a ‘reasonable’ remedial measure is no longer available.” Fortunately, the committee provided some additional guidance to this seemingly indefinite ending. Specifically, it focused on the term “reasonable remedial measures” and found that such measures could only be taken if they are likely to correct the threat to the adjudicative process caused by the false evidence. Thus, it found an attorney’s duty to disclose only comes into play if it is somehow still possible to disclose new evidence either to the tribu-nal to which the false evidence was presented or to a tribunal that could review the decision of the prior tribunal. Additionally, it found the tribunal must still be in a position to consider the new evidence and reopen the matter and/or amend, modify, or vacate the prior judgment.

lawyers’ Duty to Disclose False Evidence may Extend indefinitely

Some attorneys are perplexed by the ruling and feel—despite the lengthy discussion of the definition of “remedial measures”—the opinion provides no real guidance at all. The rule basically creates an indefinite obligation and would have benefited from a more “bright-line guidance,” says Thomas G. Wilkinson Jr., Philadelphia, PA, cochair of the Conflicts of Interest Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee. “The New York version of the rules leaves it to the lawyer’s judgment when remedial measures would potentially eliminate or mitigate the effects of the false testimony,” he bemoans. “Divining that timeframe will not always be a simple judgment call and could require some research as to the extraordinary remedies that may be available to seek to reopen, amend, or modify rulings by a court, agency, or arbitra-tion panel.”

Indefinite or not, when lawyers in New York discover that material evidence offered was false, they must realize they have to carefully analyze how to comply with Rule 3.3, says Barry E. Cohen, Washington, D.C., cochair of the multi-Jurisdictional Practice Subcommittee of the Section of the Section’s Ethics and Professionalism Committee. This applies even if the knowledge of the conduct comes to the attorney’s attention after the pro-ceeding has concluded.

From a practical standpoint, Cohen points out, attorneys should always “make the clients aware of the risk in submitting false evidence and your responsibility.” Clearly, he says, “no attorney wants to be known as an attorney who rats on his client but also does not want to be known as the attorney who know-ingly submits false evidence.”

Lawyers should “operate on the assumption that courts will likely view any knowing falsehood as material, even if the lawyers do not,” says Wilkinson. Thus, he advises, “lawyers should err on the side of disclosure to the tribunal, even if the knowingly false statement of fact might arguably have no impact on the outcome of the proceeding. The court may well view the fact to be mate-rial, especially if the fact is one referenced in the court’s opinion or judgment.”

An expanded version of this story, including links to resources and

authorities, is available at http://bit.ly/LN391-Foster.

By Angela Foster, litigation news Contributing Editor


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No conflict of interest exists when private attorneys prosecuting civil actions are compensated solely through a fee contingent upon the attorneys’ success in the case. State ex rel. Discover Fin. Servs., Inc. v. Nibert. Therefore, the Supreme Court of Appeals of West Virginia concluded that the state’s attorney general had the authority to engage private counsel and to com-pensate them on a contingent basis.

In several consumer protection actions, the West Virginia attorney general appointed private attorneys to prosecute cases on behalf of the state as “special assistant attorneys general.” The complaints sought up to $5,000 in civil penalties per viola-tion of the West Virginia Consumer Credit and Protection Act based on allegations of unfair and deceptive practices.

The private attorneys were required to pay all upfront expenses necessary to prosecute the action. If they lost, they would receive nothing. If they prevailed, they would receive rea-sonable and customary fees, subject to the trial court’s approval.

Several defendants in these actions, including financial insti-tutions and GlaxoSmithKline, challenged the fee arrangement under the conflict of interest provision of Rule 1.7(b) of the West Virginia Rules of Professional Conduct. Specifically, they argued the contingency fee arrangement materially limited the private attorneys’ ability to represent the state of West Virginia’s inter-ests and “would irrevocably taint the [underlying] proceedings.” The trial court rejected their challenge.

At the West Virginia high court, the corporate defendants argued that due to the civil penalties at stake, their cases should be treated like criminal cases in which prosecuting attorneys are generally prohibited from maintaining a financial stake in the outcome. The court rejected this argument because even if the actions were “quasi-criminal,” the private attorneys only recom-mended penalties, which the attorney general could ignore.

The court also rejected the defendants’ argument that the private attorneys would “seek[] penalties based on their own financial interests, rather than . . . on an impartial sense of justice or the public’s interest.” The court reasoned that there was noth-ing to suggest that potential fees were “inextricably tied to the nature of the relief obtained.” moreover, the private attorneys were monitored by the attorney general, did not have absolute control over the case, and would only be awarded fees subject to the trial court’s discretion.

Lastly, the court found support in County of Santa Clara v. Superior Court, a California case that upheld a similar arrange-ment. In that case, no conflict existed because both private and public counsel represented the governmental entity and

Contingent Fee permissible When State hires private Counsel

because the private attorneys were subject to supervision by government attorneys. Accordingly, the West Virginia court upheld the fee arrangement, suggesting that the conflict only existed in “the imagination of opposing counsel.”

Whether fee arrangements like that addressed by the West Virginia court should raise concerns among the bar and the public is a matter of debate. on the one hand, some believe appointments of special assistant attorneys general “raise significant issues.” When a lawyer “agrees to advance costs and have no recovery whatsoever unless a court ultimately orders it, that puts a significant incentive in the works to make sure that there is a recovery for a court to review, because otherwise . . . there is no money going to the lawyers,” states Gregory Hanthorn, Atlanta, GA, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee.

Conversely, others assert this fee arrangement should not be viewed any differently than any other contingency fee agree-ment. “I would certainly argue that the public benefit is just as important as the private interest in a situation like this, and I don’t think that the possibility of a large verdict potential will negatively impact the representation at all,” concludes oran F. Whiting, Chicago, IL, cochair of the Section of Litigation’s Ethics and Professionalism Committee. “I think the argument places too much emphasis on money when it’s convenient for the argu-ment and then puts too much emphasis on ethics when ethics are not at issue,” says Whiting.

Even if a desire for a large verdict in some way negatively impacted the private attorneys’ representation of the state, such impact would be minimal because “the attorney general is main-taining or retaining control over the matter anyway,” notes Whiting. In contrast, Hanthorn questions whether “in practice, this will end up shifting far too much authority to the specially appointed assis-tants.” He notes that “the playing field looks fundamentally differ-ent once somebody representing the government will only get paid if certain things occur.” Yet attorneys are “incentivized to do the appropriate thing by the rules and by their professionalism,” and they should be treated like professionals, argues Whiting.

Contrary to the court’s suggestion that the defendants’ con-cerns are imagined, “their concerns are real because they may be concerned that these attorneys may do a very good job in prosecuting their cases and that they may be in some trouble,” Whiting suggests.


authorities, is available at http://bit.ly/LN391-Denny.

By Robert T. Denny, litigation news Contributing Editor


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Litigants may not sue attorneys for fraud or intentional infliction of emotional distress based on conduct during litigation, the Connecticut Supreme Court held in Simms v. Seaman. An oppo-site ruling would dissuade attorneys from zealously represent-ing their clients and might reduce access to the courts given the flood of litigation that could result, according to the court.

Simms involved an alimony modification dispute. The plain-tiff sued his former wife and her attorneys for failing to disclose her receipt of an inheritance during the proceedings. The lower courts ruled in the defendants’ favor, finding that the litigation privilege barred the plaintiff’s claims. The issue presented to the Connecticut high court was whether attorneys are protected by the common law doctrine of absolute immunity against claims of fraud and emotional distress for conduct arising during judicial proceedings.

The Simms court summarized a lengthy history of the litigation privilege and immunity. Absolute immunity for defamatory state-ments made during judicial proceedings is rooted in medieval England and is considered ‘‘as old as the law’’ itself. The court explained that courts in many American jurisdictions have strength-ened the litigation privilege. Conversely, at least 12 jurisdictions have abrogated the litigation privilege for claims of fraud by enact-ing statutes for that purpose, the court acknowledged.

Absolute immunity does not, however, protect attorneys against claims alleging the pursuit of litigation for the unlawful, ulterior purpose of inflicting injury on the plaintiff and enriching themselves and their client, despite knowledge that their client’s claim lacked merit, the court cautioned. Absolute immunity also does not bar claims against attorneys for vexatious litigation or malicious prosecution.

Connecticut’s high court concluded that the appellate court correctly determined that attorneys are shielded by the litiga-tion privilege from claims of fraud because fraudulent conduct by attorneys, while strongly discouraged (1) does not subvert the underlying purpose of a judicial proceeding, as does con-duct constituting vexatious litigation, for which the privilege may not be invoked; (2) is similar in essential respects to defama-tory statements, which are protected by the privilege; (3) may be adequately addressed by other available remedies; and (4) has been protected by the litigation privilege in federal courts, including the U.S. Supreme Court.

The court also held that the appellate court properly rejected the plaintiff’s claim of intentional infliction of emo-tional distress, which was derivative of his fraud claim. The court observed that abrogation of the litigation privilege to permit

litigation privilege immunizes lawyers from Fraud Actions

fraud claims could open the floodgates to a wave of litigation in Connecticut’s courts, challenging attorneys’ representations, especially in highly emotional cases or cases with pro se plaintiffs.

A dissenting opinion argued that the duty of zealous advo-cacy has its limits and that, as officers of the court, attorneys have specific duties not to lie or withhold evidence. The dis-sent also distinguished between fraud and defamation, stating that fraud is a far more serious offense. The dissenting opinion offered a novel solution, suggesting that the privilege might be eliminated when a court or disciplinary body has already sanc-tioned the lawyer for fraud or presenting false evidence.

“The majority’s concern about protecting lawyers from suit by opposing parties plainly has a great deal of appeal, allowing a litigant to sue the opposing party’s lawyer for inflicting emotional distress in the course of litigation, or saying things that the litigant deemed false would appear to run counter to that lawyer’s obli-gation to zealously advocate for his or her client,” opines John C. martin, Chicago, IL, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “our adversary system would be hamstrung if lawyers had to worry about being sued merely because an opposing party’s feelings were hurt or the party did not agree with the substance of a lawyer’s arguments,” martin adds.

“That said, I am not sure the majority gives enough credit to the competing concerns. As the dissent points out, the duty of zealous advocacy has its limits. A rule affording litigants unfet-tered rights to enforce ethical duties against opposing counsel by bringing fraud or other claims against attorneys has prob-lems, given the obvious concern that disappointed litigants might bring such claims, as a matter of course, after a decision that went against them,” explains martin.

“The court was trying to pick its way through the thicket of what is in and what is out of bounds,” according to Bradford S. Babbitt, Hartford, CT, a member of the Section of Litigation’s Content management Committee, who has litigated the issue in Connecticut’s state courts and has seen how it can be used for good and ill. “We live in a society where the desire for ven-geance is strong. The court of vexatious litigation is strong. The court must be careful about what is actionable as we do not want lawyers to be timid in their representation or to be looking over their shoulders when they act in good faith.”


authorities, is available at http://bit.ly/LN391-Whiting.

By Oran F. Whiting, litigation news Associate Editor


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KEEPING WATCH EmERGING DEVELoPmENTS FoR LITIGAToRS

+ Attorney General proposes broad Criminal Justice Reforms + Senate bill Would ban Sexual orientation Employment Discrimination + Court to Consider lanham Act Standing, patent Declaratory Judgment burden of proof

e x e c u t i v e b r a n c h

Criminal Justice Attorney General Eric Holder revealed a package of proposed reforms based on a Justice Department review of the federal system at the ABA 2013 Annual meeting. The proposals include changing U.S. attorney charging policies on drug crimes to reserve the most severe penalties and mandatory minimum sentences for serious, high-level, or violent drug traffickers; urging passage of legislation to give federal judges more dis-cretion in applying mandatory minimum sentences to certain drug offenses; revising the criteria for compassionate release of inmates facing extraordinary circumstances who pose no threat to the public; and identifying best practices for increasing the use of diversion programs as alternatives to prison.

c o n g r e s s

Employment Discrimination The Senate Health, Education, Labor and Pensions Committee approved S. 815, the Employment Non-Discrimination Act, in the committee’s first approval of a bill to ban employment-related discrimination on the basis of sexual orientation or gender iden-tity. The ABA adopted policy in 1989 urging local and federal lawmakers to prohibit discrimination on the basis of sexual ori-entation, and, in 2006, the ABA approved policy specifically urg-ing enactment of legislation prohibiting discrimination on the basis of real or perceived gender identity in the areas of housing, employment, and public accommodations.

Fed. R. Civ. p. 11 The House Judiciary Committee approved the Lawsuit Abuse Reduction Act, H.R. 2655, which would amend Rule 11 of the Federal Rules of Civil Procedure to require, rather than permit, the imposition of monetary sanctions against lawyers for filing non-meritorious claims. The bill also would eliminate the “safe harbor” provision, adopted in 1993, that allows parties and their attorneys to avoid sanctions by withdrawing frivolous claims within 21 days after service of a motion for sanctions. The ABA opposes the bill as unnecessary, counterproductive, and a cir-cumvention of the Rules Enabling Act process that typically gov-erns amendments to the rules.

u . S . S u p r e m e c o u r t / J u d i c i a r y

Arbitration The Court granted certiorari to decide whether, in disputes involv-ing a multi-staged dispute resolution process, a court or the arbi-trator determines whether a precondition to arbitration has been satisfied. BG Group PLC v. Republic of Argentina, No. 12-138.

bankruptcy Addressing issues left open by Stern v. Marshall, 131 S. Ct. 2594 (2011), the Court granted certiorari to decide (1) whether Article III of the Constitution permits jurisdiction by bankruptcy courts on the basis of litigant consent, including “implied consent” based on a litigant’s conduct; and (2) whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. § 157(b). Executive Benefits Insurance Agency v. Arkison, No. 12-1200.

Class Action Fairness Act/Removal The Court granted certiorari to resolve a circuit split on the question of whether a state’s parens patriae lawsuit is removable to federal court as a “mass action” under CAFA. Mississippi ex rel. Hood v. AU Optronics Corp., No. 12-1036.

False Advertising/lanham Act The Court granted certiorari to resolve a three-way circuit split over what should be the appropriate analytical framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act. Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873.

patents The Court granted certiorari to decide whether, in a declaratory judgment action brought by a licensee under MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), the licensee has the burden to prove that its products do not infringe the patent, or whether, as in other patent litigation, the patentee must prove infringement. Medtronic, Inc. v. Boston Scientific Corp., No. 12-1128.

AND moRE . . . By STEvEN J. MINTz, L IT IGATIoN NE WS ASSOCIATE EDITOR


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on the matter. After the call, the attorneys sought guidance from the firm’s in-house general counsel (a partner at the firm), expressing their concern that SSW might sue for malpractice.

The firm nonetheless continued nego-tiating with rescinding buyers on behalf of SSW. The firm did not inform SSW that it was evaluating its own potential exposure.

Georgia Trial Court Rejects the

Privilege Claim

SSW ultimately sued the law firm for legal malpractice, breach of fiduciary duty, and fraud. In discovery, the firm refused to pro-duce its in-house counsel’s communica-tions and internal investigation documents, asserting attorney-client privilege and work product protection. SSW argued that the communications were not privileged because they were created and transmitted while the firm continued to represent SSW. SSW also asserted that it was a significant conflict of interest for the firm to consult with its in-house counsel while simultaneously representing SSW, and that any privilege was therefore waived.

The trial court granted SSW’s motion to compel, finding it troublesome that the firm “perceived a conflict and began taking immediate action to protect itself but did not inform SSW of the conflict and continued to represent the client.” The Court of Appeals of Georgia vacated the trial court’s ruling.

Georgia’s Four-Part Test for Privileged

Communications

The Supreme Court of Georgia has now weighed in, structuring the framework for when such communications can be cloaked with the privilege “to fit within the param-eters of Georgia’s general law on privilege and work product and to remove the Rules of Professional Conduct from the analysis.”

The supreme court ruled that the ques-tion of privilege in “the law firm in-house counsel situation” should be resolved through “the same basic analysis that is

conducted to assess privilege and work product in every other variation of the attorney-client privilege.” This requires consideration of four factors:

1. whether the in-house counsel was actually acting as the firm’s in-house counsel with regard to the firm’s rela-tionship with the outside client;

2. whether the communications at issue “were intended to advance the firm’s interests in limiting expo-sure to liability rather than the client’s interests in obtaining sound legal representation”;

3. whether the communication was made and maintained in confidence;

4. whether any exception to the privilege applies.

The supreme court acknowledged the apparent conflict of interest created when a firm represents itself against a current client, especially because any conflict resid-ing with the attorney seeking the legal advice is imputed to the in-house counsel as well. Ultimately, though, the supreme court found such a conflict did not impair an otherwise existing privilege:

[W]e do not believe that potential ethics violations are relevant to the attorney-client privilege determina-tion. . . . [T]he potential existence of an imputed conflict of interest between in-house counsel and the firm client is not a persuasive basis for abrogating the attorney-client privilege between in-house counsel and the firm’s attorneys. . . . [Thus]so long as an actual attorney-client relationship exists, with the firm clearly established as the client of the in-house counsel, the privilege may attach to their communications so long as the other requisites of the privilege are met.

As of the morning of July 10, 2013, no court of last resort in the United States had ever addressed whether confiden-

tial communications between a law firm attorney and the firm’s in-house counsel regarding a threatened malpractice claim by a current client could be privileged against disclosure to the client. By the end of the next day, two state supreme courts had ruled on the question directly. In detailed opinions, the highest courts of Georgia and massachusetts both held that the privilege exists as long as the standard elements of a privileged communication are satisfied, notwithstanding the unique nature of the arguable conflict of interest in a law firm is representing both the client and itself. Arriving separately at their strik-ingly similar conclusions, both courts con-sidered and rejected proffered exceptions to application of the privilege.

“The decisions encourage lawyers to secure legal advice concerning their professional obligations from those best qualified to render such advice at their respective firms,” says Thomas G. Wilkinson Jr., Philadelphia, PA, cochair of the Conflicts of Interest Subcommittee of the ABA Section of Litigation’s Ethics & Professionalism Committee.

the georgiA cASe

In St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., St. Simons Waterfront (SSW) retained a law firm to assist in developing and selling condo-miniums, including drafting the underly-ing sales contracts. When buyers began rescinding the sales contracts, SSW sought a legal opinion from the firm regarding specific performance of the contracts. The firm concluded that language in the con-tracts likely eliminated SSW’s ability to sue for specific performance.

SSW expressed displeasure with the firm’s legal advice in a February 2008 phone call with the firm attorneys working

By Henry r. CHalmers ,Litigation news assoCiate editor


11

Protecting Communications with Law Firms’ In-House Counsel

claim. meanwhile, B&L continued to repre-sent RFF in its post-foreclosure attempts to sell the property.

The property still had not sold a year later, when the B&L attorneys responsible for the title search received a “notice of claim” and a draft malpractice complaint from Prince Lobel. This prompted the attor-neys to seek advice regarding the claim from B&L’s in-house counsel. When the attorneys advised RFF thereafter that B&L could no longer represent it, RFF disavowed the notice of claim and persuaded the firm to continue its sales efforts. B&L complied, sold the property the following month, and concluded its representation of RFF.

Within days of the sale, RFF sued B&L and the attorneys for legal malpractice and misrepresentation. When RFF noticed depositions of the B&L attorneys, the defendants sought, and received from the trial court, a protective order, allowing them to refuse to disclose the content of their communications with the firm’s in-house counsel. RFF appealed the order.

Massachusetts High Court Rejects a

Narrow Definition of the Privilege

The Supreme Judicial Court of massachusetts (SJC)—the state’s highest court—rejected RFF’s argument that the attorney-client privilege should apply only to communications made after the law firm withdraws from its representation of the outside client or after the law firm receives the outside client’s informed consent to seek legal advice regarding the client’s claims.

The SJC found that such a rule would disserve the underlying purpose of the attorney-client privilege in a law firm set-

ting, which is to encourage firm lawyers to make a full disclosure to, and receive advice from, their in-house counsel promptly upon learning that a mistake may have been made.

As stated in a law review article heav-ily cited and excerpted by both the massachusetts and the Georgia courts, “broad protection of communications with law firm in-house counsel, including com-munication about the representation of a current client of the firm . . . would encour-age firm members to seek early advice about their duties to clients and to correct mistakes or lapses, if possible, to alleviate harm.”

Policy Concerns with an Alternative

Holding

Conversely, the SJC found, the rule pro-posed by RFF would encourage attor-neys to withdraw without first consulting in-house counsel. This could produce unnecessary withdrawals when a conflict did not actually exist, or it could prompt hasty withdrawals before important steps are taken to protect the client’s interests.

The supreme court noted other potential results from RFF’s proposed rule. For instance, the proposed rule could prompt attorneys to advise out-side clients of perceived conflicts with-out first consulting in-house counsel or fully evaluating the conflict. or attorneys might consult with in-house counsel with-out first withdrawing or receiving client consent—knowing that the consultation would not be privileged. But this would simply motivate attorneys to be less than forthcoming to in-house counsel, thereby increasing the chances that the legal advice received would be faulty or incomplete.

A final option would be for attor-neys to seek legal guidance from out-side counsel, but this would likely delay receipt of ethical advice, as well as impose additional costs on the attorneys and the firm.

“None of these alternatives best serve the interests of the client,” the SJC concluded. “Consequently, the rule pro-posed by RFF would be dysfunctional, both to the client and the law firm.”

“There is no sound policy reason for lawyers to be required to retain and pay outside counsel to secure the same

Georgia Rejects the Fiduciary Exception

The supreme court declined to follow other jurisdictions that have adopted trust law’s “fiduciary exception” to the attorney-client privilege. “This exception holds that one who is acting in a fiduciary capacity cannot assert privilege to shield its communications with counsel from the beneficiary of the fiduciary relationship,” the court explained.

In contrast, the court noted, when a firm attorney consults with the firm’s in-house counsel about a dispute with a cur-rent client, there does not exist a similar “mutuality of interest between the firm/firm attorneys as fiduciaries and the firm client as beneficiary of the fiduciary relationship.”

on remand, the burden will be on the law firm—the proponent of the privilege—to establish that the four elements are met.

“The underlying logic of the deci-sion makes sense,” says John C. martin, Chicago, IL, cochair of the Section of Litigation’s Ethics & Professionalism Committee. “Why shouldn’t the attorney-client privilege apply to law firms just like anyone else, especially when getting can-did advice may help the lawyer serve the client better and more ethically.”

the mASSAchuSettS cASe

In RFF Family Partnership, LP v. Burns & Levinson, LLP, the plaintiff (RFF) retained a law firm (B&L) to assist with a loan, includ-ing researching the title to the collateral property and, when the debtor defaulted, foreclosing on what the firm believed was RFF’s first mortgage on the property.

When a third party sued RFF, asserting a superior lien, RFF retained a second law firm (Prince Lobel) to defend it against the

“[t]he attorney-client privilege applies to protect from disclosure

confidential communications between law firm personnel and

their firms’ designated in-house counsel made for the purpose of

facilitating the rendition of professional legal services to the law

firm (including any legal advice provided by such counsel) in the

same way as such confidential communications between law firm

personnel and the firm’s outside counsel would be protected.”

— 2013 ABA House of DelegAtes Resolution 103


12

Massachusetts’s Four-Part Test

Ultimately, the SJC enunciated its own four-part test to determine whether the firm attorney’s communications with the firm’s in-house counsel are entitled to the privilege:

1. The in-house counsel actually must have been designated as such, so that an attorney-client relation-ship existed between the in-house counsel and the firm when the com-munications occurred.

2. The in-house counsel must not have performed any work for the outside client.

3. The firm must not bill the outside cli-ent for any time related to the firm’s consultation with its in-house counsel.

4. The communications must have been made and maintained in confidence.

If these four conditions are met, “com-pelled disclosure [to the client] does little to advance the interests of the client (who is owed disclosure of material facts whether or not the first attorney has con-sulted counsel), but does much to under-mine the important societal goals served by the attorney-client privilege.”

the Future oF the PriVilege

The overarching result of the two cases is that “both courts cobbled together mul-tifactor tests, which unfortunately tend to get distorted over time,” says Nicholas B. Reuhs, Indianapolis, IN, cochair of the Conflicts of Interest Subcommittee of the Section’s Ethics & Professionalism Committee. Still, the courts deserve credit for having “reached the correct end: Both concluded that the engagement does not destroy the privilege and the privilege does not destroy the engagement.”

However, “neither opinion gave enough consideration to the ways in which a law-yer’s ethical duties might impact the abil-ity of a law firm to claim privilege,” martin contends. “As lawyers,” martin notes, “we owe duties to disclose certain things to our clients, and that should limit our expecta-tions of confidentiality.”

“other jurisdictions are likely to follow these courts’ lead,” says Wilkinson, not-ing that within a month of the decisions, the ABA House of Delegates adopted Resolution 103 urging recognition of an

attorney-client privilege for law firm attor-neys’ communications with the firm’s in-house counsel, even when the commu-nications regard a potential malpractice claim by a then-current client of the firm.

In the meantime, the two decisions “offer a useful series of guidelines for law firms that have not yet formalized the role of in-house counsel,” notes Wilkinson. Reuhs concurs, advising that, “no matter how small or large the law firm, it should designate an in-house counsel and have a very clear procedure to follow for risk management communications. The more clearly the privileged communications are identified and delineated, the easier the claim of privilege will be.”

reSourceS

RFF Family Partnership, LP v. Burns & Levinson,

LLP, No. SJC-11371, 2013 mass. LExIS 571 (mass.

July 10, 2013).

St. Simons Waterfront, LLC v. Hunter, Maclean,

Exley & Dunn, P.C., No. S12G1924, 2013 Ga.

LExIS 614 (Ga. July 11, 2013).

Elizabeth Chambliss, “The Scope of In-Firm

Privilege,” 80 Notre Dame L. Rev. 1721 (2005),

available at http://bit.ly/in-firm-privilege.

2013 ABA House of Delegates Resolution 103,

available at http://bit.ly/resolution103.

advice concerning their professional obligations that they often can secure in-house more rapidly,” Wilkinson agrees.

Massachusetts Declines to Find Exceptions

to the Privilege

Having found the privilege implicated in such circumstances, the SJC rejected RFF’s suggestion that the court join other juris-dictions in adopting the “fiduciary excep-tion” or a “current client” exception to the privilege.

The SJC declined to decide whether massachusetts would adopt the fiduciary exception because it would not apply to the facts currently before the court. Nonetheless, the SJC opined that such an exception would not be necessary to pro-tect an outside client’s interests.

The “current client exception,” adopted by lower courts in several jurisdictions, provides that the law firm’s interest in pro-tecting itself against a client must give way to its obligation to promote the current client’s interests. Thus, according to propo-nents of the exception, the law firm’s com-munications with in-house counsel must be disclosed to the client.

The SJC found two fundamental flaws in this reasoning. First, a law firm facing claims from a current client does not have the option of avoiding the conflict—as it might avoid the conflict inherent in repre-senting two adverse outside clients—by simply declining to take on a represen-tation. Thus, imputing a conflict to the firm’s in-house counsel, the SJC ruled, “would not avoid conflicting loyalties or prevent disloyalty; it would simply pre-vent or delay a law firm from seeking the expertise and advice of in-house counsel in deciding what to do where there is a potential conflict.”

Second, the SJC found, even when a firm has violated the prohibition against conflicts of interest, the attorney-client privilege need not be jettisoned as a result. “It was appropriate that the court rejected the bells and whistles of ‘fidu-ciary’ and ‘current client’ exceptions that some courts have grafted onto the basic attorney-client privilege doctrine,” says martin, adding that to find otherwise “would preclude a law firm from ever claiming a privilege.”

LAWYER WRITERS WANTED! FOR LITIGATION NEWS

InteRested?Send résumé and writing sample

to [email protected] by

Friday, January 17, 2014.


13

Thanks to the New York County Lawyers’ Association (NYCLA), attorneys finally have a glimpse of how bar associations and

courts may view the lawyer’s role in guid-ing clients’ social media postings. In Ethics opinion 745, the NYCLA found that lawyers may indeed counsel clients about whether they should post on social media sites. It opined that lawyers could even go as far as instructing clients to take down certain materials from existing social media sites and warning their clients about the legal implications of their social media activity.

The New York ethics opinion answered the simple submitted question, “What advice is appropriate to give a client with respect to existing or proposed postings on social media sites?” No other underly-ing facts were provided. In answering this question, the NYCLA emphasized it was well aware of the growing importance of social media in day-to-day life, as evi-denced by the fact that Americans spend an estimated 20 percent of their free time on social media. Ethics opinion 745 notes that, unlike previous forms of communi-cation, social media sites enable users to publish information regionally, nationally, and even globally. Thus, potential attorney-client conflicts are inevitable.

As the opinion explains, client activity on social media raises concerns not only because of its prevalence but also because of the privacy concerns implicated by the personal nature of many social media posts. For example, the decision describes how users sometimes unintentionally expose intimate information about them-selves to the public at large. Even after

users remove this information, potential employers, adverse parties in a litigation, or family members may still access it in the future.

Ultimately, the NYCLA found that, because of these concerns, attorneys may need to advise clients as to what they should or should not post on social media and that the mere fact that attorneys pro-vide such advice does not violate any ethi-cal obligation. Thus, the opinion found attorneys can, for instance, instruct clients to use the highest privacy and security lev-els on social media pages. Although the NYCLA recognized that such measures might prevent adverse parties from directly accessing information (thus potentially rais-ing an ethical concern), the information would still be accessible through formal discovery channels. In addition, an attorney can ethically assist clients in formulating a corporate policy on social media issues.

AdViSiNg clieNtS oN SociAl

mediA PoStS

The pioneering opinion has sparked serious debate among lawyers. Some attorneys opine that Ethics opinion 745 is correct in its ultimate conclusion but that attorneys should look at the other side of the coin. For example, we should be more concerned about the potential failure of lawyers to address what clients are posting on social media, says michael P. Downey, St. Louis, mo, cochair of the ABA Section of Litigation’s Legislation and Rules Subcommittee of the Ethics & Professionalism Committee. “If a client posts information concerning ongoing litigation, Rule 3.6 issues could be impli-

cated,” Downey says. ABA model Rule 3.6 provides that those participating in litiga-tion may not make any public, extrajudicial comments that are substantially likely to prejudice an adjudicative proceeding in a material manner.

Along those same lines, Downey points out that taking the proactive step of advis-ing clients on impermissible topics can pre-vent clients from making decisions that will adversely affect their position in the future. “Certainly you do not want your client post-ing anything critical of the judge if things do not go his or her way,” he notes.

“tAkiNg dowN” iNFormAtioN

The opinion also raises concerns about spoliation. The opinion makes clear that attorneys may advise clients on “taking down” or removing already existing infor-mation from social media sites, which could implicate spoliation issues if information is destroyed, rather than just removed. Thus, “attorneys in civil litigation matters need to have an understanding about the particular type of electronic evidence before giving advice about how that evidence should be preserved,” says Neil Lloyd, Chicago, IL, cochair of the Section of Litigation’s Legislation and Rules Subcommittee of the Ethics & Professionalism Committee.

Downey agrees this opinion does not provide much guidance on spoliation issues. His assessment is that a court would be unlikely to find that actual spoliation occurred if the attorney is successful in arguing the client “merely moved, rather than destroyed evidence.” The nature of the Internet is such that the actual effect of a client’s “removal” of information from

By Caitlin Haney, litigation news Contributing Editor

Can You Tell Your ClienTs To Clean up Their FaCebook pages?


14

PriVAcy SettiNg ProblemS remAiN

uNSettled

other questions remain unsettled, includ-ing discovery issues. Depending on how a particular judge views restricting accessibil-ity, a lawyer could be accused of unneces-sarily dragging out the discovery process, predicts Downey. If a client changes her privacy settings such that information once public is no longer publicly accessible, that action in effect “merely slows down discovery and makes it more difficult to gain access to the information,” he notes. In other words, hiding previously public information can be perceived as “playing a game to make it more difficult to obtain information that should otherwise be pro-duced,” argues Downey.

For others, however, advising clients to change privacy settings does not implicate serious concerns. “making previously pub-lic information private is really no different from taking a letter that was taped to the inside of a display window and removing it from public view,” argues Lloyd. So long as attorneys “restrict their advice to clients’ privacy settings on social media sites and further advise them not to alter or destroy any relevant evidence,” they should be on solid ground, according to Lloyd.

liNeS remAiN uNcleAr

Until other bar associations follow New York’s lead and take a strong position and provide guidance on social media issues, ethics problems will continue to fester. The only other state that has analyzed a similar ethical issue is Virginia, which seemed to take a less forgiving approach to lawyers’ coaching of their clients on social media. There, an attorney was sus-pended after advising his client to clean up his Facebook page, resulting in the deletion of 16 photographs. Had the law-yer limited his advice to merely restricting access to the photographs, it is possible that the Virginia Bar Association would have refrained from issuing such a harsh punishment, Downey speculates.

However, one thing is certain to remain the same. As Downey summarizes, “law-yers and clients have an amazing ability to continue to find problems and get them-selves into trouble with social media.”

reSourceS

N.Y. County Lawyers Ass’n Ethics opinion 745

(July 2, 2013), available at http://bit.ly/

ethics-745.

Samson Habte, “Attorneys Sometimes may

Advise Clients to Purge Damaging Social

media Information,” Bloomberg News,

July 17, 2013, available at http://bit.ly/bna-

social-media.

Debra Cassens Weiss, “Lawyer Agrees to Five-

Year Suspension for Advising Client to Clean

Up His Facebook Photos,” ABA Journal, Aug.

7, 2013, available at http://bit.ly/aba-journal-

social-media.

a social media site can fall along a broad spectrum of availability, notes Downey. on one end of the spectrum is “publicly avail-able information that anyone can see; on the other end is information that has been destroyed,” Downey explains. “Security settings land you somewhere in the mid-dle, where the information is available through certain means,” he says.

“The principal difficulty in advising cli-ents concerning ‘taking down’ information is that unless the lawyer has a good under-standing of exactly where the electronic information will be stored once it has been taken down, she will not know whether that information has in fact been preserved,” says Lloyd. No lawyer wants to find himself in a situation where his “clients turn on him when an opponent charges spoliation.”

lAwyerS’ duty to iNVeStigAte

The growing role of social media in litiga-tion raises questions about other ethical duties lawyers owe their clients. For exam-ple, Lloyd argues that properly advising a client may now require that the attorney “inquire whether there is relevant evidence on social media sites, regardless of whether that evidence is public or private,” depend-ing on the facts and circumstances of the case.

“Failing diligently to investigate publicly available information could lead a client to be impeached during trial or deposition testimony with statements in social media posts that are inconsistent with the client’s litigation position,” bemoans Lloyd. A fairly typical scenario along these lines might involve “a plaintiff who claims personal injury, and an adversary gets hold of pic-tures that are inconsistent with the alleged damages,” Downey explains. This type of damaging information could become a serious problem for the plaintiff’s case. “An attorney could certainly have a Rule 1.1 problem if she failed to inquire about publicly available social media information and her client was then blindsided during testimony,” argues Lloyd. ABA model Rule 1.1 requires lawyers to provide competent representation, including the responsibil-ity to investigate the client’s claims and defenses adequately.


15

SIGHTINGS FRom THE BLoGoSPHEREPoSted&Noted

eeoc: doN’t Forbid ex-emPloyeeS From tAlkiNg to uS

Although severance agreements typically contain a release of claims and a covenant not to sue, a recent EEoC settlement might make employ-ers want to review their parting agreements. Jon hyman of Ohio Employer’s Law Blog advises against making the mistake of including a cov-enant that forbids filing a discrimination charge with the EEoC or other agency. in its dispute with baker & Taylor, the EEoC claimed the company violated Title Vii when it conditioned employees’ severance pay on an overly broad agreement that could have been understood to bar the filing of charges and to limit communi-cation with the EEoC. Employers who want to avoid this problem while still providing relative finality to future legal dealings can include a simple disclaimer to their standard release lan-guage that nothing in the agreement “prevents, or is intended to prevent, the employee from filing a charge of discrimination with the EEoC, or with a state or local civil rights agency,” offers hyman. he further advises coupling that language with a waiver of the right to seek or recover money dam-ages from such an agency filing.

http://bit.ly/lN391pn3

Lindsay Sestile, Litigation News Associate Editor, monitors the blogosphere.

LARGE ComPANIES SEEING INCREASED LEGAL DISPUTESin a recent general counsel survey of more than 100 companies with annual revenues of at least $250 million, 27 percent said

they are enlarging their legal departments to help deal with increased legal disputes. Reporting on the survey for the Corporate

Counsel blog on law.com, Sue Reisinger notes that only 7 percent of general counsel had seen a decrease in legal disputes in the

last 12 months, while more than one-third reported an increase. Also increased was the number of entities involved in high-

stakes litigation, with one in ten surveyed saying they were involved in “bet-the-company” lawsuits within the last year. Given

the increase in legal disputes and their associated costs, 84 percent of corporate legal departments reported they are seeking to

lower legal costs in several ways, including “keeping more work in-house, using alternative fee arrangements, and resorting to

alternative dispute resolution.”


SequeStrAtioN hArmiNg FederAl courtS

in recent Senate testimony, Sixth Circuit Judge Julia Gibbons, chair of the budget Committee of the Judicial Conference of the United States, reported that federal sequestration has had drastic effects on the federal court system. According to the U.S. Courts blog, The Third Branch News, Judge Gibbons testified that the number of person-nel working in U.S. courts is at the lowest level since 1999, and that certain federal court employees could be furloughed almost 70,000 hours this fiscal year. Court clerks and probation and pretrial services offices are expected to lose as many as 1,000 staff and to be furloughed an additional 8,600 workdays. Judge Gibbons also noted that funding for courthouse security has been cut by 30 percent. Finally, she called special attention to funding for court-appointed counsel, required for about 90 percent of federal criminal defendants. The Federal Defender program, which incurred a $52 million cut due to sequestration, has downsized its offices by about 6 percent and expects to delay payment to panel attorneys and to conduct staff furloughs. “if sufficient fund-ing is not provided to the courts, we cannot provide the people of the United States the type of justice system that has been a hallmark of our liberty throughout the nation’s history,” concluded Judge Gibbons.



16

mAximiziNg lAw Firm liNkediN exPoSure

on optimizing firm linkedin profiles, Real Lawyers Have Blogs author Kevin o’Keefe states, “As a law firm, you spend significant time and money on web properties of your own. You then spend resources on drawing traffic to your website. linkedin company pages provide you an opportunity to take information about your firm and what it does to where your target audience is already going, linkedin.” o’Keefe recom-mends several improvements: 1. Add a relevant, visually striking cover image, and don’t limit yourself to your logo. 2. Complete all fields with as much information about your firm as possible. make sure the information shared is consistent with the firm website and other marketing offerings. 3. Add a menu of your firm’s services and/or products, and include photos, video, specific industry group contact information, and hyperlinks to your firm website and blogs. 4. Ask clients and former clients to leave recommendations. 5. Encourage lawyers and other firm employees to join linkedin and link their profiles to the firm page. 6. promote your linkedin company page on your website, blogs, social networks, email signatures, and other marketing material.


FmlA rightS iN SAme-Sex mArriAgeS

in light of the Supreme Court’s recent ruling on same-sex marriage, the Department of labor now defines “spouse” for FmlA purposes as “a husband or wife as defined or recog-nized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” The Employer Handbook blogger Eric meyer concludes that this broadening of the definition will permit eligible employees to take time off to care for a same-sex spouse in states that recognize their marriage. more complicated, according to meyer, will be multi-state scenarios where, for example, the employee and his husband were legal-ly married in one state but then move to a state that does not recognize their marriage. if the employee continues to work in the first state, is his employer legally obligated to provide FmlA leave should the employee’s husband suffer from a seri-ous health condition? And what of states that recognize civil unions but not marriages? According to meyer, Dol guid-ance does not address these, and other, nuanced situations.


you’Ve beeN SerVed . . . ViA FAcebook?

Reporting on a federal court decision rejecting service of pro-cess by Facebook, Technology & Marketing Law Blog contributor Venkat balasubramani notes that Rule 4 of the Federal Rules of Civil procedure only allows service by alternate means on for-eign defendants and is more restrictive with respect to domestic defendants. in Joe Hand Promotions v. Shepard, 4:12cv1728 SnlJ (E.D. miss. Aug. 12, 2013), the plaintiff showed it had exhausted all standard means of service. The plaintiff further showed the defendants had active Facebook accounts and requested to serve them by attaching a copy of the summons and complaint to a Facebook message. The court concluded that Rule 4 may allow for electronic service on foreign defendants in some cir-cumstances but, as it relates to domestic defendants, electronic service is not permitted unless allowed by the state where the action is brought. Although not of help to this plaintiff, balasubramani notes a pending Texas bill that would allow for service through social media websites in certain circumstances.


iS ghoSt bloggiNg uNethicAl?

The next ethical dilemma in the legal field may turn out to be ghost blogging. “before you bring on a hired hand to craft witty blog posts under your name, better heed the ‘informal consensus’ of legal ethicists that using ghost bloggers without a disclaimer could be considered ‘deceit’ or ‘dishonesty’ under the Rules of professional Conduct,” cautions the VLW Blog. After the “firestorm” created when Virginia State bar president Sharon nelson opined at a conference that ghost blogging without a disclaimer was unethical, the state bar association’s legal ethics counsel weighed in. in an informal report, Jim mcCauley stated that lawyers using ghost bloggers must adhere to advertis-ing rules and those prohibiting deceit or dishonesty. in addition to the potential ethical conundrums, mcCauley warned that marketing methods involving passing off an-other’s work as a lawyer’s own may make for a bad start to the attorney-client relationship, which is supposed to be built on trust. There may still be reason for concern even when a hired writer is disclosed. mcCauley cautioned law-yers using ghost writers to preview their outsourced work to ensure it meets professional standards.



17

PrActice PoiNtS By Hon. Mark A. Drummond, litigation news Associate Editor

“Hey Dad, can we have your phone?” The kids would take my phone to where their friends were gathered. I would then hear, “Hey, look!” and the room would dissolve in squeals of laughter.

my phone is light years behind their phones and so is my techno-logical savvy. I am a Luddite. So, if I am able to make visual presenta-tions, trust me, so can you.

Study after study tells us that the retention rate with information we both see and hear is between 80 and 90 percent. With just ears, it is between 10 and 15 percent.

Also, as the jury population ages, we are dealing with younger jurors who prefer their information to be visual and want their infor-mation fast. So, for those of you who have never tried it, here are my top 10 suggestions for getting started.

SteAl it

If you see a presentation you like, ask the presenter to send it to you. Tell her that you are not going to steal her presentation, but you really like her set up, her fonts, her transition between slides, etc. and that you would like to use it as a template.

You can go on the Internet and find presentations to download. You then simply take your cursor, highlight the words or images you want to get rid of, and delete them. Then type in your own stuff or replace the images with whatever you want to use. It will appear in the font and color you like and will appear on the screen in the same way as the old presentation. Under “Resources,” I have prepared a presentation showing different types of slides that you are welcome to steal.

Lessonsfrom a Ludditetop 10 tips for VisuaLs (ThefT Is Allowed)

StArt SmAll

In each case, time overlays all the facts and all the witnesses. I found I could not adequately prepare a case until I created a visual chronology.

only when you see the facts and witnesses in relation to time do things come clearly into focus. Was the day on which the witness claimed something happened a Saturday, a Sunday, a birthday, or an anniversary? Would that really have happened in the week between Christmas and New Year’s?

The benefit of building a chronology is twofold. First, for your opening statement, having the date and the event associated with it helps the jury or judge retain that information. Second, the slides become your notes. They release you from reading an opening state-ment from a legal pad.

Lists are useful for cases with many witnesses. You can give the judge or jury the “cast of characters” for each side. The attorney whom the jury perceives as the person who is attempting to make the case understandable has the advantage.

FAmiliArize yourSelF with the “uNdo” buttoN

I was once asked what software I used to build presentations. I answered, and then someone asked whether I owned stock in that company. No, I do not own any stock in any computer company. I just happen to have microsoft’s presentation software, PowerPoint, loaded onto my computer.

In PowerPoint, the most useful feature I have found, since I make a lot of mistakes, is the “undo typing” button—the little button with the arrow that runs counterclockwise that will undo any mistake I make. I can keep on clicking it until I get back to the version I liked.

ASk A teeNAger

If you’re really stumped, ask a teenager. I was once trying to insert a graphic into a presentation and simply couldn’t get it done. one of my children, who was about 10 at the time, came into the room and asked, “Dad, why are you talking to yourself?” Luckily, he had not heard what I was saying.

I explained to him what I was trying to do, and he asked to try. I thought to myself, “Good luck,” and went into my favorite room to console myself—the kitchen. As I walked back, he was walking out and with an impish grin said, “Got it.” Ask a teenager.

However, most teenagers pride themselves on doing this stuff so fast you cannot follow it. Bribe them to slow down so you can follow.

remember thAt your ScreeN iS Not the courtroom

“See how the presentation will look in a courtroom where the jury is not two feet from a computer screen, but 20 feet away from an elevated screen,” advises Harout J. Samra, miami, FL, cochair of the ABA Section of Litigation’s Technology for the Litigator Committee. “In that context, the color may not turn out exactly the same, and the size of text may not be exactly the same.”

What may look great on your computer may not look great in a courtroom. Whatever you assemble, you need to take it to the room where it will be used, on the projector that will be used, against the screen or wall that will be used.


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most of my failures happened when I became too cute with col-ors. What appeared vivid and beautiful on my screen was washed out in the courtroom. I now use almost exclusively white letters on a black background or, if the room is particularly dark, black letters on a white background.

Finally, do not put too much information on each slide. Test to make sure you can read the letters from the last row at the far corner of the jury box.

bAck uP your work

As you make your masterpiece, hit “save” often. I save it on my hard drive, copy it to a thumb drive, and then burn a CD. You will thank yourself for taking this belt, suspenders, and Velcro approach.

When it comes to actually using your presentation in the court-room, I would also print out each slide. Any office supply store carries transparencies that will make overheads of your slides using a regular copier.

In our courtrooms, we have an LCD projector, an ELmo, and an old overhead projector. If the LCD went down, I could use the ELmo. If the ELmo’s bulb burned out, I could use the overhead projector. If all three bulbs burned out at the same time, I would ask for a break. For those of you who are inclined to stop reading at this point, I never had one bulb burn out, let alone three. Just knowing I had back-ups made me calmer.

uSe ctrl+c ANd ctrl+V

Now we are really getting fancy. If you have a document—perhaps the emergency room report, a picture, or a statement that is in PDF form—you can highlight any of that document and copy the high-lighted portion into your presentation.

on my computer, I have Adobe Acrobat, which allows me to click on any document and, with the left mouse button depressed, drag it and create a box which, when I let go of the button, the boxed por-tion of the document appears highlighted. I then hit “Ctrl+c,” go to my PowerPoint, click on the slide where I want the excerpt to appear, hit “Ctrl+v,” and the excerpt appears where I want it in the presen-tation. I can then click on it and move it, or click on any one of the corners, drag it, and make it larger. I simply repeat this technique to embed multiple objects into the presentation.

the “b” ANd “w” keyS Are uSed to highlight ViSuAlS

Since most people prefer receiving information through their eyes, as opposed to their ears, you must turn off the visuals unless you are actively using them with the witness. The visual will always override the verbal.

In PowerPoint, press “B” on your keyboard, and your screen turns black. Press it again, and your last slide comes up. Press “W,” and the screen becomes white.

The bulbs in these projectors get very hot. I have seen attorneys prop legal pads in front of the lens or use the lens caps. I have never seen a legal pad catch fire, but lens caps have melted, lenses have cracked, and bulbs worth hundreds of dollars have burst. Use the “B” and “W” keys instead.

uSe AVAilAble reSourceS

“At the Section Annual Conference this year, W. mark Lanier, who is a trendsetter in the use of PowerPoint, spoke about using it to pres-ent images instead of just words,” says John P. Hutchins, Atlanta, GA, cochair of the Section of Litigation’s Technology for the Litigator Committee. “He has revolutionized the way it is used at trial.”

Courts are recognizing that technology is sometimes neces-sary for trials. In this issue of Litigation News, Natasha Saggar Sheth reports on a California case that affirmed an award of more than $24,000 for trial technology expenses (see page 21).

doN’t get cArried AwAy

Trust me, this can be fun. However, you can get carried away. The last thing you want is one of the jurors coming up to you at the end of your trial and asking, “How did you get the little arrows to fly in?” You want the jury concentrating on substance, not form.

People usually get carried away with colors and animations. Presentation software includes many animations that can be distract-ing. my go-to buttons for animation are “fade” and “appear” as opposed to say, “pinwheel.” Try “pinwheel,” and you will see what I mean. Good luck.

reSourceS

Sample PowerPoint Presentation available at http://bit.ly/sample-powerpoint.

W. mark Lanier, “Constructing the Ultimate PowerPoint,” available at

http://bit.ly/ABA-SAC-powerpoint.


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It seemed like a good idea at the time. International headlines reported the arrest in Budapest of a notorious World War II Hungarian war criminal,

Laszlo Csatary. In 1948, he was convicted in absentia for complicity in the exter-mination of more than 15,000 Jews liv-ing in Kosice (now part of Slovakia), but he escaped to montreal and was never punished. In 1997, after being discov-ered in montreal, he flew to Budapest under an assumed name and had been living there quietly since then. As it hap-pened, Csatary was a key witness to pivotal events in a case that I and oth-ers had brought on behalf of survivors of the Hungarian Holocaust against Hungary and its national railway, “mAV.” mAV transported more than 400,000 Hungarian Jews to their slaughter at Auschwitz toward the end of the war. Kosice was one of the key railheads on the train tracks to the death camp. Csatary was alleged to have been in charge of the embarkations there.

When I read of his arrest and deten-tion, I immediately thought of Rule 28(b)(1)(A)–(B) of the Federal Rules of Civil Procedure. Those provisions authorize the taking of a deposition in a foreign country under the Hague Convention. I asked myself, “Why not?” Little did I real-ize the expense, complexity, and frustra-tion attendant to the endeavor.

We had no scheduling order in the case, so I filed a motion for leave to take an expedited deposition under Rule 30(a)(2)(A)(iii). Despite the defendants’ objections, the motion was granted. Step one was complete. I then embarked on step two: drafting the letter rogatory—a request for discovery from our court to the Hungarian justice system—in a form acceptable under the rules of court and the Hague Convention. After several tries on my part, the court approved the

form and we progressed to step three: transmitting the letter rogatory to the Hungarian authorities. Under the Hague Convention, the host government may accept or reject the request and impose terms on its execution pursuant to local law and practice. my colleagues and I doubted that Hungary would authorize Csatary’s deposition, but we were wrong. Hungary acceded to the request with conditions, including the requirement that we submit all of our deposition ques-tions in advance. (We would, however, be allowed to ask spontaneous follow-up questions.) We complied and then waited. Several months later, I was noti-fied of the date, time, and location of the proceeding in Hungary.

As I embarked to Budapest to con-front Csatary on behalf of my clients, I felt their weight on my shoulders. Could I stand in their stead to contend with Csatary? of course we recognized the possibility that he would invoke his privilege not to testify, but in a civil case, even that might provide useful admis-sions. In the event, Csatary (ostensibly under house arrest and subject to the control of the police) did not appear for his deposition, claiming that he had just been released from the hospital and was too ill. His lawyer appeared and submit-ted Csatary’s written statement, consist-ing mostly of denials and a caveat that he would not testify further even if he appeared in person. The presiding judge considered reconvening the deposition at Csatary’s home, where presumably he could testify from bed, but Csatary’s doc-tor rejected that idea. The judge agreed to try to obtain copies of Csatary’s crimi-nal interrogation upon receipt of a sup-plemental letter rogatory, but otherwise, we were at an end.

Was the expense worth it? It was always a long shot, considering the

hoops we had to jump through just to get to the Budapest courtroom door with no assurance that the witness would testify. We did obtain a written statement with a few admissions, and we may gain access to Csatary’s criminal interrogation. But I never was able to examine Csatary face-to-face, the holy grail of every trial law-yer. Would I use the Hague Convention again? I don’t know.

This past June, Hungary formally indicted Csatary for war crimes, and his trial was quickly commenced. It was sus-pended after three weeks, however, on the grounds of “double jeopardy” (since he was convicted in 1948). The Hungarian prosecutors appealed that decision, but on August 10, Csatary died at home, a free man to the last.

An expanded version of this story, including

links to resources and authorities, is available

at http://bit.ly/LN391-Fax.

r e S o u r c e S

Fed. R. Civ. P. 28.

Fed. R. Civ. P. 30.

Dr. Efraim Zuroff, 2013 Annual Report on the

Status of Nazi War Criminals, April 2013, avail-

able at http://bit.ly/nazi-war-criminals.

Simon v. Republic of Hungary, Case No.

1:10-cv-01770 (D.D.C.), available at http://

bit.ly/simon-hungary.

Preparation of Letters Rogatory, available at

http://bit.ly/letters-rogatory.

Hague Convention on the Taking of Evidence

Abroad in Civil or Commercial matters,

available at http://bit.ly/hague-convention.

A Tale of Discovery under the hague Convention: Was the Expense Worth it?

ciVil Procedure uPdAte

By Charles S. Fax, litigation news Associate Editor


20

to recover his costs as a matter of right. Section 1033.5 outlines the types of costs that are permissible, including “[m]odels and blowups of exhibits and photocopies of exhibits . . . if they were reasonably help-ful to aid the trier of fact.” The section also permits a court to award costs that are not otherwise mentioned in the section with the caveat that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”

NeceSSAry uSe oF techNology

In affirming the trial court’s award, the appellate court noted that, “in a witness credibility case such as this, it would have been inconceivable for plaintiff’s counsel to forego the use of technology.”

The court distinguished Science Applications International Corp. v. Superior Court, a nearly 20-year-old case on which defendants had relied to exclude Bender’s technology costs. In Science Applications, the court disallowed certain technology costs that amounted to more than $2 mil-lion. The Science Applications court deter-mined that this technology was glitz—i.e., a “high tech paralegal” and “a high-powered way of retrieving documents”—without tan-gible benefit. In Science Applications, the prevailing party incurred over $2 million in technology expenses for a trial that yielded only $1 million in damages.

Since 1995, when Science Applications was decided, “technology in the courtroom has become commonplace . . . and tech-nology costs have dramatically declined,” noted the Bender court. In the case before it, the Bender court found that the technol-ogy used enhanced counsel’s advocacy and was reasonably necessary to the litigation, rather than merely convenient or beneficial.

iNcreASed uSe oF techNology iN the

courtroom

“The Bender court explicitly recognizes that trial technology is helpful,” says John P.

Hutchins, Atlanta, GA, cochair of the ABA Section of Litigation’s Technology for the Litigator Committee.

Indeed, “in the courts, we are certainly seeing an increased use of technology,” says Hon. J. michelle Childs, Greenville, SC, U.S. District Judge and cochair of the Section of Litigation’s Trial Evidence Committee.

An award of costs for trial technology, though not yet the norm, is not unprec-edented. For example, in Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd., a fed-eral court in Iowa awarded $73,000 in costs for demonstrative exhibits, including charts, graphs, and videotaped depositions. The award was justified “given the complexity of the issues presented at trial and the enor-mous amounts of information presented to the jury during trial.” In Cefalu v. village of Elk Grove, the Seventh Circuit found that the cost of multi-media presentations was recoverable.

“With juries now increasingly populated by millenials, it is necessary—not merely convenient—to use technology in the court-room to communicate with a jury in the way that they are accustomed to receiving infor-mation,” says Hutchins.

In a media-saturated world, “we are used to receiving information almost instanta-neously,” says Childs. “Jurors are no differ-ent, and they appreciate—if they do not yet expect—that complicated issues might be better explained using technology.”

Whether technology is “reasonably nec-essary” rather than “merely convenient or beneficial” will require a fact-finding process on a case-by-case basis, says Childs. “The distinction in the terms appears to sug-gest that trial technology should be used to help the fact-finder to discern the truth in an expedient manner and not simply award creativity.”


links to resources and authorities, is available

at http://bit.ly/LN391-Sheth.

There seems to be little dispute that trial presentation technol-ogy can help lawyers make their case to a judge or jury. But the

expense is a drawback. A California appel-late court’s award of costs to a prevailing plaintiff for trial technology offers a solu-tion to the cost problem in a decision that recognizes the importance and usefulness of such technology.

In Bender v. Los Angeles, the California Court of Appeals affirmed a cost award of $24,103.75 for a “Trial Video Computer, PowerPoint Presentation, and Videotaped Deposition Synchronizing” and the cost of a technician.

the BENDER triAl

Bender involved a civil lawsuit against two sheriff’s deputies for an unlawful arrest and assault of the plaintiff. The court’s opinion details the abuses Bender suffered dur-ing his arrest; he was beaten so badly that he lost consciousness. The deputies inter-viewed Bender on videotape in their patrol car, where his injuries were visible. Bender was also interviewed on videotape by a lieutenant at the police station, where he maintained that he was arrested and beaten without cause or provocation.

During the trial, the plaintiff’s attorneys played both of these videotapes for the jury. The plaintiff’s counsel also played parts of witness depositions and, in closing argu-ment, used a PowerPoint presentation that provided a “comprehensive evaluation of [the evidence presented] vis à vis jury instructions.”

The jury found in Bender’s favor and awarded him damages and attorney fees. Additionally, the court awarded $24,103.75 for courtroom technology and the cost of à technician. The deputies appealed.

coStS recoVerAble uNder cAliForNiA

StAtute

Under California Code of Civil Procedure Section 1032(b), a prevailing party is entitled

Recovering Trial Technology Costsby Natasha Saggar Sheth, litigation news Associate Editor


21

NewS & ANAlySiS

Tort Reform Dealt Another blowBy Andrew J. Kennedy, litigation news Contributing Editor

Tort reform proponents are left stinging after a pair of decisions handed down by the Supreme Court of oklahoma that struck down a massive 90-provision tort reform bill called the Comprehensive Lawsuit Reform Act (CLRA). These deci-sions sent the future of tort reform back to the oklahoma state legislature and dictated that any future reform would have to be done in piecemeal fashion. They also raise constitutional concerns that may influence tort reform efforts in other states.

The first of those two cases involved a frontal attack on the CLRA. In Douglas v. Cox Retirement Properties, Inc., the plaintiff’s estate filed a wrongful death action against a rehabilitation center. The trial court granted a motion to dismiss because the plaintiff had failed to attach an “affidavit of merit” to his complaint, as required by the CLRA.

on appeal, the plaintiff challenged the constitutionality of the entire CLRA, arguing that the act’s wide-ranging provi-sions ran afoul of oklahoma’s constitu-tional “single-subject” provision that all acts “shall embrace but one subject.”

The Supreme Court of oklahoma observed that the CLRA was very broad on its face. Indeed, it consisted of 90 pro-visions, ranging in topics from immunity from lawsuits, expert testimony in asbes-tos cases, limited liability for firearms manufacturers, and school discipline. The court reasoned that “the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice to ensure passage of the legislation.”

The majority rejected the approach of the dissenting justices to save the CLRA by severing the affidavit of merit require-ment. It reasoned that picking and choos-ing which provisions to keep and which to jettison would transform the court into a policy-making body. The court then point-edly advised the legislature—in boldface type, no less—that the legislature could

ameliorate the “logrolling” defects in the statute only by separately considering each of the CLRA’s provisions.

on the same day it invalidated the entire CLRA, the oklahoma Supreme Court also pointedly struck down the “affidavit of merit” requirement in mal-practice cases against physicians. In Wall v. Marouk, the court held that the law flouted an oklahoma constitutional pro-vision barring the legislature from regu-lating judicial proceedings.

Notably, the court spent most of its opinion discussing the expense of obtaining affidavits of merit, which can cost a plaintiff between $500 and $5,000. The court reasoned the cost created a burden on open access to the courts, a right guaranteed by the oklahoma Constitution that traces back to the magna Carta.

Some observers believe the decisions show that courts are taking a harder look at constitutional issues when consider-ing tort reform. “I think the case shows that courts are more willing to strike down tort reform measures on consti-tutional grounds,” says Erik H. olson, Atlanta, GA, cochair of the ABA Section of Litigation’s medical Professional Practices Subcommittee of the Health Law Litigation Committee.

But olson does not see Douglas as starting a trend here. “I don’t foresee many successes using the single subject rule. This bill was unbelievably broad,” he notes. “I think the legislature made this an easy call for the supreme court.”

others predict that the Douglas opin-ion will have more far-reaching effects. “This may be a fertile area for challenging tort reform,” observes Joseph A. Frank, St. Louis, mo, cochair of the Section of Litigation’s Solo and Small Firms Committee. “A lot of states have single subject provisions and this is a power-ful argument for throwing out broad tort reform statutes.”

Strictly applying single-subject provi-sions of other state constitutions may impede tort reform efforts elsewhere, states olson. “Ironically, I think strict con-struction of the oklahoma Constitution doomed the law. The dissent acknowl-edged that applying the constitution’s sin-

gle-subject requirement was difficult. Then it jumped over that requirement to say it would have upheld the law.”

The court’s striking the affidavit of merit requirement in Wall on open access grounds may also impact tort reform. According to the National Conference of State Legislatures, as of 2011, 22 states imposed such requirements on plaintiffs in medical malpractice cases. Wall could spur more challenges to affidavit of merit requirements. “I would anticipate that plain-tiffs challenging tort reform would cite this case,” he says. “It is a strong argument.”


links to resources and authorities, is

available at http:/bit.ly/LN391na1.

motions for Summary Judgment—not motions in limine—Terminate ClaimsBy Jonathan B. Stepanian, litigation news, Associate Editor

Although litigants rely on motions in limine and motions for summary judg-ment to narrow the scope of trial, those motions are not interchangeable. The U.S. Court of Appeals for the Sixth Circuit reversed a judgment entered after a district court ruled in limine to exclude critical evidence even though the plaintiff conceded that he could not prove his dis-crimination claims without that evidence. Louzon v. Ford Motor Co. The Sixth Circuit’s decision exemplifies a broaden-ing consensus that litigants must pursue all post-discovery, potentially dispositive arguments through summary judgment motions.

Ford fired plaintiff moien Louzon after security issues prevented Louzon from returning from a trip to visit his ill mother in Gaza before his approved leave time expired. Louzon thereafter sued Ford for discrimination and retaliation.

Ford moved for summary judgment based on Louzon’s alleged inability to


22

produce evidence of similarly situated individuals who received different treat-ment (comparators). The U.S. District Court for the Eastern District of michigan denied Ford’s motion after Louzon pro-duced evidence that he was treated dif-ferently from a comparator who may have worked for a different supervisor.

After the district court reassigned the case to another judge, Ford filed a motion in limine to exclude evidence concerning employees who report to different supervisors as irrelevant under Federal Rules of Evidence 401 and 402. The district court granted Ford’s motion. Sua sponte, the district court ordered Louzon to demonstrate why the court should not enter summary judgment. Louzon conceded that, in view of the court’s limine ruling, he could not estab-lish his discrimination claims.

The Sixth Circuit reversed the judg-ment entered for Ford, concluding that the district court improperly considered non-evidentiary issues in its ruling on Ford’s motion in limine. The Sixth Circuit deemed it inappropriate to repackage non-evidentiary legal and factual chal-lenges as motions in limine. otherwise, “a litigant could raise any matter in limine, as long as he included the dupli-cative argument that the evidence relat-ing to the matter at issue is irrelevant.” The circuit court found that Ford’s motion in limine was “no more than a rephrased summary judgment motion” that the dis-trict court should not have considered.

The ruling reflects the prevailing view among federal courts that motions in limine do not provide additional oppor-tunities to seek dismissals of claims. For example, the Federal Circuit recently held that arguments relating to the suf-ficiency of evidence are the subjects of motions for summary judgment or judg-ment as a matter of law, not motions in limine. The Seventh Circuit similarly held that a defendant had to raise an argu-ment about the admissibility of evidence directed to whether damages were rea-sonably certain as part of a summary judgment motion, not a motion in limine.

Although consistent with other federal courts’ reasoning, the decision in Louzon “was surprising because the plaintiff

conceded that, having lost on the limine motion, he didn’t have sufficient evi-dence to meet his burden of proof,” says Joan K. Archer, Kansas City, mo, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. She counsels that parties in Ford’s position should consider captioning their motion as both in limine and for summary judg-ment and “argue that, if granted, how there are no fact issues and judgment can be entered as a matter of law, forcing the trial judge to undertake a summary judgment analysis.”

Timing issues and pretrial planning also affect how effectively litigants use motions in limine and summary judgment motions. “A motion in limine is not intended to be used for summary judgment; it’s a trial law-yer’s vehicle to exclude evidence from trial” and is often addressed shortly before or even during trial, according to Richard m. Gaal, mobile, AL, cochair of the Section of Litigation’s Product Liability Committee. “Dispositive rulings on key evidence should have already been addressed with an ear-lier summary judgment motion because Rule 56(c)(2) incorporates the Rules of Evidence,” Gaal adds. If faced with a key evidentiary issue, “I would address it as a motion for summary judgment, and if the evidence is excluded or no admissible evidence is put forward, then you’re never going to get to the motion in limine prob-lem” noted by the Sixth Circuit.



available at http:/bit.ly/LN391na2

Facebook messages Admissible under Traditional Evidence RulesBy Lisa R. Hasday, litigation news Associate Editor

A witness may authenticate Facebook messages through testimony alone that the messages are what they purport to

be, the mississippi Court of Appeals held in a recent decision. The court also found that the Facebook messages that are automatically generated are not hearsay because they are not statements made by a person. The ruling continues the trend toward subjecting social media posts to traditional evidentiary principles.

In Smith v. State, a capital murder case, the prosecution sought to intro-duce three Facebook messages, which appeared to be exchanged between the defendant and the 17-month-old vic-tim’s mother, whom the defendant had recently married. The prosecution con-tended that two of the three messages were sent by the defendant, who was not the child’s father, and demonstrated his anger about caring for the child while the mother worked and expressed his feeling that he “will hurt someone.”

The first two messages were printed from the mother’s Facebook page. The third message was contained in a printed email notification from Facebook. The Facebook-related evidence was admit-ted over objection, and the defendant appealed the ruling and argued that the trial court erred because the messages were not authenticated and were hearsay.

The mississippi Court of Appeals found that the mother’s testimony that she sent and received the messages was sufficient to authenticate them. The court relied on mississippi Rule of Evidence 901(a), which provides that “authentication . . . is satis-fied by evidence sufficient to support a finding that the matter in question is what its proponent claims,” and mississippi Rule of Evidence 901(b)(1), which specifies that authentication is proper through witness testimony. The mississippi rules mirror the Federal Rules of Evidence.

“The sufficient evidence phrase is important,” remarks David m. Conner, Savannah, GA, cochair of the Substantive Federal Rules of Evidence Subcommittee of the ABA Section of Litigation’s Trial Evidence Committee, referring to Rule 901(a). “Lawyers do not have to conclu-sively authenticate or prove authenticity beyond a reasonable doubt. The suffi-ciency standard recognizes that lawyers have other ways of attacking evidence, through cross-examination or argument.


23

Ultimately, the jury decides whether the evidence is authentic.”

After resolving the authentication issue, the court considered whether the printed Facebook messages were hear-say. It found that they were not, because “Facebook’s automatic notification fea-tures, which cause the messages to be sent within Facebook and sent via email notification, are not statements.” The court cited mississippi Rule of Evidence 801(a), which defines “statement” as an assertion of a person.

Examining the actual message con-tent beyond the automated language, the court found that the defendant’s mes-sages were not hearsay under mississippi Rule of Evidence 801(d)(2)(A) because they were admissions by a party-opponent. The mother’s message could be hearsay, the court held, but any error in its admission was harmless given her testimony on the same matters.

The case presents unusual facts, says Darryl A. Goldberg, Chicago, IL, chair of the Trial/Evidence Subcommittee of the Section of Litigation’s Criminal Litigation Committee. “In my experience, most criminal defendants are not send-ing horribly incriminating messages on Facebook. more often you see victims posting information relevant to their alle-gations or credibility.” He mentions that it is often difficult for criminal defense lawyers to obtain such information from Facebook and similar companies due to restrictions contained in the Electronic Communications Privacy Act.

Assuming access to electronic infor-mation, authentication may be achieved in various ways, including one mentioned but not relied on in the mississippi court’s opinion, Conner adds. Federal Rule of Evidence 901(b)(4) and the correspond-ing mississippi rule allow authentication through “distinctive characteristics of the item, taken together with all the cir-cumstances.” The messages contained details such as the names of specific daycare centers in which the defendant hoped the child would enroll.

In addition, other facts corroborated the Facebook information, Conner notes. “We don’t need a whole new series of rules to address the issue of electronic

posts. The basic question is whether the evidence is reliable. The current rules are well suited to help judges and attor-neys answer that question,” Conner concludes.




Discovery processing Costs not RecoverableBy Ian S. Clement, litigation news Contributing Editor

E-discovery costs are generally not recoverable by a prevailing party. In The Country vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s order permitting the win-ning party to recover less than 1 percent of the e-discovery costs it sought.

Country Vintner filed a lawsuit against Gallo claiming that Gallo engaged in unfair and deceptive trade practices. Almost immediately after the suit began the parties clashed over the scope of e-discovery. Country Vintner sought a broad universe of emails it thought rel-evant to the dispute. Gallo argued that retrieving those emails would be unduly burdensome; it would have to interview more than 40 employees and search at least seven servers.

Country Vintner agreed to narrow the field of potential employees and develop keywords, search terms, and/or date restrictions, but otherwise refused to limit its discovery requests. Gallo moved for a protective order estimating that it would cost more than $450,000 to process email data of 24 employees and guard against the privilege waiver. The district court denied Gallo’s motion for a protective order and adopted Country Vintner’s proposal for handling ESI. Gallo did not file an interlocutory appeal of the district court’s discovery order and com-plied with the court’s ESI instructions.

Gallo won a pretrial dispositive

motion and then moved to recover its e-discovery costs under Federal Rule of Procedure 54(d)(1). That rule permits dis-trict courts to award the costs of making copies to the prevailing party in a lawsuit unless an express provision regarding costs is made by federal statute or court rule. The majority of expenses Gallo sought were associated with “flattening” and “indexing” ESI, “searching/review set/data extraction,” and management of the processing of the electronic data.

The district court ruled that 28 U.S.C. § 1920(4) “limits taxable costs to . . . convert-ing electronic files to non-editable formats and burning files to discs.” “Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d).” The district court rejected Gallo’s argument that the cost of making copies includes the costs attendant to processing e-discovery.

The district court also found that the only tasks that involved copying were the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs. The court further rejected Gallo’s argument that the ESI-related costs quali-fied as fees for exemplification—the act or process of showing or illustrating by example or the authentication of an offi-cial transcript of a public record for use as evidence—under either established con-struction of the term.

Gallo appealed. The Fourth Circuit discounted the innovations in litigation-support technology and their concomi-tant costs as a reason to expand the reach of Section 1920(4). The fact that Gallo would recover only a fraction of its costs though it was the successful litigant was not dispositive. The court noted that the U.S. Supreme Court has acknowl-edged that the presumption is that the responding party must bear the expense of complying with discovery requests. The Fourth Circuit further suggested that Gallo should have filed an interlocutory appeal of the district court’s denial of its protective order.

“Gallo probably should have sought interlocutory review of the district court’s discovery order because the discov-ery phase is where cost shifting should be addressed,” says Betsy Collins,

NewS & ANAlySiS


24

mobile, AL, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. But Collins also notes that the court’s suggestion was imperfect. “It is not likely that the circuit court would have entertained Gallo’s interlocutory appeal of the denial of the protective order because of the finality rule,” Collins states. “And, even if it did, the appellate court’s abuse of discretion review would probably have led to the same outcome,” says Collins.

Attorneys should pay careful attention in their Rule 26(f) meetings. “Attorneys should be using the party planning meetings to come to comprehensive agreements regarding ESI, including (if possible) who should bear the costs and reviewing with their clients what dis-covery is actually necessary,” says Joan Archer, Kansas City, mo, cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee.




“private” postings nevertheless DiscoverableBy Katerina Milenkovski, litigation news Associate Editor

A judge ordered the parties in a personal injury lawsuit to retain a neutral foren-sic computer expert, at the defendants’ expense, to review plaintiff’s private Facebook postings for evidence of activi-ties inconsistent with her alleged injuries. In Perrone v. Rose City HMA, LLC, plaintiff Grace Perrone claimed to have suffered severe, life-altering, and disabling inju-ries as a result of a fall at the Lancaster Regional medical Center (LRmC).

During settlement discussions, the defendants had produced photographs of Perrone from her Facebook page depicting her shoveling snow, climbing up a snow bank, and riding a sled—all

activities inconsistent with her alleged injuries. Perrone’s Facebook page indi-cated that the photos were posted on February 6 and 13, 2010, a few weeks after the alleged injuries and coincident to two significant snowfalls in the area.

Perrone claimed that while she posted the photos to Facebook in February of 2010, they were actually taken at some other unidentified time. The defendants introduced evidence that there had not been a comparable snowfall since February of 2003, and argued that the color of the vehicle inspection stickers visible in the photos was consistent with the photos having been taken in 2010. The defendants sought further informa-tion about the photos through tradi-tional discovery but Perrone refused. The defendants moved to compel.

In their motion, the defendants acknowledged that courts in prior cases had denied similar requests to social networking accounts. However, the defendants also noted that in most of those prior cases, there was no reason to believe that the social networking site contained relevant information. In this case, photos posted on the pub-licly accessible portions of Perrone’s Facebook page strongly contradicted her claims of injury.

“In this case, there was a pretty good showing by the defendants that there was relevant information on that Facebook page that would destroy the plaintiff’s case,” says James A. King, Columbus, oH, vice-chair of the ABA Section of Litigation’s Trial Evidence committee. “Facebook is the modern equivalent of a diary. A diary is discoverable as long as you can show that there is some poten-tially relevant information in it. The court can put protections in place to shield other private information in the diary, but the relevant information is discoverable.”

“I think you do have some expecta-tion of privacy,” says Richard S. Stockton, Chicago, IL, cochair of the Section of Litigation’s Technology for the Litigator Committee, “but if you file a lawsuit based on injuries, are you allowed to hide things based on your expectation of pri-vacy where those things have a bearing on your lawsuit? I think whatever expec-

tation of privacy you may have, it stands beside the point where you are in litiga-tion and classic rules regarding discovery apply.”

The plaintiff’s lawyers, in opposing the defendants’ motion, argued that the defendants should not be allowed unlim-ited access to private Facebook settings where photos taken at an unknown time may exist. As Stockton notes, “the judge basically said, oK, if that’s your concern, I’ll appoint a neutral forensic expert who will get in, get what they need, and get out.” The court limited the expert’s review to photos of and references to snow between January 27, 2010, and February 13, 2010.

“The order is an interesting attempt to strike a balance between the respec-tive rights of litigants in cases such as this one,” observes Kevin J. o’Connor, River Edge, NJ, Sound Advice editor for the Section’s Employment and Labor Relations committee. “I think it is unduly restrictive, but that might be a function of the defendants’ insistence on gaining access for the purposes of those pictures relating to the snowstorm. my practice in employment matters is to attempt access to the entirety of Facebook page entries, which, in my view, are by their very nature not privileged and are at issue in most cases that I deal with.”

“I think it is good for lawyers to coun-sel clients on the costs of litigation, which go beyond just the monetary costs. There are also privacy costs. There is often personal information that’s going to be reviewed by a lot of people. You need to be prepared for that,” cautions Stockton.





25

book reView Discovery Problems and Their Solutions, Third Edition

most civil cases filed in federal court are resolved before trial, either on dispositive motion or by settlement. For this reason, it is essential that litigators understand how to navigate the pretrial discovery process.

Released in April 2013, the third edition of Discovery Problems and Their Solutions is a useful reference for resolving both basic and complex discovery questions. The book was first published in 2005 and updated in 2009. Since the second edition was pub-lished, numerous federal rule changes and other developments have occurred in the discovery arena, including with respect to expert disclosures, discovery of electroni-cally stored information (ESI), and the emer-gence of social-networking evidence.

The updated and expanded third edition describes problems that litigators frequently encounter in pretrial discovery and presents suggestions and strategies for solving them. In this new edition, the authors Paul W. Grimm, Charles S. Fax, and Paul m. Sandler place particular emphasis on the interpreta-tion of new rules and evolving case law con-cerning ESI.

Discovery Problems and Their Solutions is organized in the same way litigators use the rules of civil procedure in the course of pretrial litigation. The book includes four sections:

Section 1: Interrogatories, Document Requests, Requests for Admission, and motions for mental and Physical ExaminationsSection 2: Depositions Section 3: Experts Section 4: Sanctions and Protective orders

Each section begins with a hypothetical fact pattern, an overview of the applicable rules, and a detailed analysis of the law gov-

erning the fact pattern. The book provides scenarios that attorneys are likely to encoun-ter during pretrial discovery. Each scenario is framed as a motion to compel or a motion for a protective order before the court. The authors discuss how a judge would likely rule, present legal analysis, and provide practical tips.

For example, the section on written discovery discusses how to frame and use interrogatories and requests for admission. In one scenario addressing the discovery of social-network evidence, a plaintiff sues her employer for improperly terminating her employment based on her age and sex. The employer’s counsel suspects that the plaintiff used her Facebook and mySpace accounts to send messages and create postings that are relevant to the lawsuit. The messages are not accessible to the public. The employer’s counsel serves subpoenas on Facebook and mySpace. Because nei-ther company responds, the counsel files a motion to compel. The authors discuss why a motion to compel third-party subpoenas as described would likely be denied.

In a second hypothetical using the same facts, the employer has possession of the computer that plaintiff used while working. The employer suspects the computer con-tains stored Facebook postings and advises the plaintiff’s attorney that the employer will search the computer for responsive evidence. The plaintiff’s attorney moves for a protective order. The authors address several factors that determine whether the social networking evidence may be privi-leged. Additionally, the book provides an in-depth analysis and dedicates almost 50 pages to a discussion of recent social media cases.

The section on depositions offers more than a dozen scenarios covering actions, from the timing of the notice of the

Aid in navigating pretrial Discovery issues

deposition through the use of depositions for impeachment at trial. Young litigators will benefit from the practical tips in this section regarding objecting at depositions, asserting privileges, dealing with obstreper-ous adversaries, and reviewing deposition transcripts. one scenario involves a witness who asks to make substantive changes to a deposition transcript when provided for review and signature. The witness testified that the plaintiff had run a red light, causing the accident, but later said that she was con-fused about which party was which and that it was actually the defendant who was at fault. The authors offer various approaches in dealing with the admissibility or inadmis-sibility of the transcript and the potential consequences.

As in earlier editions, the final portion of the book contains a chart summarizing potential discovery sanctions, appendices for rules 26 through 37 and 45 of the Federal Rule of Civil Procedure, standard interroga-tories and requests for production, and the ABA Civil Discovery Standards.

The book is not designed to be a quick read; rather, it is better utilized as a refer-ence guide. The reader cannot quickly flip through the book without first becom-ing familiar with the book and its layout. Because significant changes to the federal rules occurred since the second edition, it would also be helpful if the authors periodi-cally provided updates or supplements. on the whole, Discovery Problems and Their Solutions is an excellent guide for the pre-trial discovery process and the typical and atypical thorny issues that arise.

By Angela Foster, litigation news Contributing Editor

Discovery Problems and Their Solutions, Third Edition is available at http://bit.ly/lN-discovery-problems.


26

whAt’S hot CommITTEES & PRACTICE AREAS

uSiNg comPuter ForeNSicS iN trAde Secret cASeS

We live in a world where we can access, copy, and transfer huge volumes of information with a click of a button.

This presents a tremendous challenge for employers who entrust their employees with confidential technology,

customer data, and other secret business information. With a mobile workforce and the ease of moving high

volumes of information, companies that rely on trade secrets are especially vulnerable to employee theft. more

and more employers are proactively investigating the potential theft of their trade secrets and initiating litigation

to recover those secrets. The Summer 2013 Woman Advocate newsletter sets forth strategies aimed at increasing

your chance of an effective trade secret investigation or litigated matter.

http://bit.ly/lN391wh4

DELAWARE m&A LITIGATIoN CASE LAW UPDATEThe last two years saw a series of cases from the Delaware

Court of Chancery and the Delaware Supreme Court that will

have lasting effects on the way in which corporations, their

directors, and investment banks conduct mergers and acquisi-

tions, as well as the way in which attorneys litigate the claims

of shareholders. These cases do not introduce new legal

doctrines; rather, they expand on and provide important clari-

fications of existing doctrines brought about by practitioners’

continued search for the edges of existing case law. Through

the willingness of shareholders to protect the interests of their

fellow investors and represent a shareholder class, these cases

have produced significant results in each respective action.

The Summer 2013 Securities Litigation newsletter looks at the

way these cases have improved the way deal makers approach

merger transactions and the manner in which shareholders’ at-

torneys prosecute their clients’ claims.


receNt coNSiderAtioNS iN

liFe-ScieNceS SAleS trAiNiNg

Two recent appellate decisions address issues that may signifi-

cantly impact the content of training given by pharmaceutical

and medical-device companies to their sales professionals. In

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012),

the U.S. Supreme Court found that two pharmaceutical sales

representatives were exempt from the Fair Labor Standards Act

(FLSA) requirement that employees receive overtime compen-

sation when they work in excess of 40 hours per week. In United States v. Caronia, 703 F.3d 149 (2d Cir. 2012), the Second Circuit

reversed the criminal conviction of a sales representative for

promoting a pharmaceutical product for unapproved uses. The

Summer 2013 Health Law Litigation newsletter considers the

importance of these decisions to those designing and updating

life-science companies’ sales-training programs.


the eVery-exPoSure

theory reViewed

Two important issues arise in any asbestos-exposure case. First, was the injured party exposed to the defendant’s product? Second, did that exposure cause the injury in question? The first question is typically addressed by testimony from the injured party and product-identification witnesses, along with the oc-casional historian or industrial hygienist. The second question requires expert testimony to answer and has become the realm of epidemiologists, pathologists, and cell biologists. To meet their burden of establishing a causal relationship, plaintiffs’ experts have in recent years adopted the position that any and every exposure to asbestos is causative. Rather than engaging with the question of medical causation, the every-exposure theory exploits the hands-off approach that some courts take toward expert testimony to trivialize the causation question. In recent years, however, many courts have begun questioning the theory’s scientific legitimacy and excluding testimony relying on it. The Summer 2013 mass Torts Litigation newsletter reviews these decisions.


“What’s Hot—Committees and Practice Areas” is compiled by Daniel

S. Wittenberg, Litigation News Associate Editor. More information on

committee activities can be found on the Section of Litigation’s committee

webpages at apps.americanbar.org/litigation/committees/newsletters.html.


28

NoNPRoFIT oRGANIZATIoN

U.S. PoSTAGE PAID

AmERICAN BAR ASSoCIATIoN

American Bar Association 321 N. Clark Street Chicago, IL 60654

01 Designate a qualified in-house counsel for the firm.

02 Set out a clear procedure for risk management communications.

03 Identify and define the potential client claim or other issue requiring communication with in-house counsel.

04 Understand whether your jurisdiction requires withdrawal from representation before seeking advice.

05 Understand whether your jurisdiction has adopted the “fiduciary exception” or “current client” exception to the attorney-client privilege.

06 Ensure the in-house counsel has not performed any work for the outside client.

07 Identify any conflict issues created by in-house counsel’s assistance.

08 Communicate in confidence with in-house counsel.

09 Do not bill the outside client for any time related to the firm’s consultation with its in-house counsel.

10 If there exists a potentially viable claim or other issue creating a potential conflict, inform the client.

Each issue of Litigation News features 10 tips on one area within the field of litigation. This list complements the article by henry R. Chalmers on page 10.

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