Attorneys & Lawyers & Counselors

Coming THIS FRIDAY to a CLE in Bloomington, MN . . .

Judgment Enforcement in Minnesota

Bloomington, MN — February 14, 2014


Holiday Inn Bloomington I-35, 1201 West 94th Street in Bloomington, MN

Live Seminar 

  • February 14, 2014
  • Bloomington, MN
  • 9:00 am – 4:30 pm

Look below!!! I’m doing it again . . . 

It’s me speaking at a CLE! Click: MKT!

I’m speaking at this Lorman CLE at 9 am. Right in between somebody named Registration and right before Break goes on!

Come on out on Valentines Day and learn about Judgment Enforcement in Minnesota. I’ll speak about ethics issues and cases unique to the collection attorney. I’m even updating my written materials from last year. I might have handouts. Handouts for all!

If you click on my initials above or EVEN RIGHT HERE, you can get 50% off the registration fee! A very lovely discount as a valentine from me (actually I just posted the link). So don’t hesitate and follow that link to register today. Come learn something new and get some credits too!

I’ll see you on 2/14/14 in Bloomington, MN!



8:30 am – 9:00 am Registration
9:00 am – 10:00 am Ethical Considerations Particular to the Collection Attorney
— Mark K. Thompson
  • Overview
  • Meritorious Claims and Contentions
  • Truthfulness in Statements to Others
  • Dealing With Unrepresented People
  • Misconduct and Golden Rule
  • Recent Disciplinary Opinions
  • Closing Remarks
10:00 am – 10:15 am Break

Mark K. Thompson

Mark K. Thompson Law Office, LLC

  • Recently formed Mark K. Thompson Law Office, LLC, after practicing law for 12 years at a downtown firm
  • Continues serving small businesses in litigation, while organizing, when being sold/acquired and with commercial collections
  • Adjunct professor at the University of Minnesota School of Law in its Civil Rights Moot Court class since 2007
  • Was privileged to sit on an advisory committee for the United States District Court, District of Minnesota, as a bar member advising during the court during implementation of case management/electronic case files (CM/ECF)
  • Listed in 2005, 2006, 2007 and 2008 as a Rising Star and recognized in Minnesota Law & Politics, Twin Cities Business Monthly and Mpls. St. Paul Magazine
  • Find out more about his practice at or at
  • Can be contacted at 651-797-0997 or
Attorneys & Lawyers & Counselors, Discovered on Demand

Discovering to Discover thru Discovery how it was Discovered

When I first heard of the discovery dispute and resolution ordered in RuizBueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013) I thought: This is the worst punishment possible. They have to conduct discovery into discovery! It must be one of Dante’s circles in the pits of litigation hell. Please, just sanction me instead!


How could you punish anyone more than forcing them to pose and respond to requests under Fed.R.Civ.P. 26(b). Then being subjected to inquires under Fed.R.Civ.P. 26(b) requiring explanations into compliance with Fed.R.Civ.P.26(b)? The viciousness of the gratuitous circuitousness. Is there no justice anymore?

Deciding Disputes

Or so I thought. Despite my horror, I couldn’t believe it was true. I questioned the legitimacy of ordering discovery into discovery. Under what authority? How do you get there? I gave into my curiosity and read the Opinion and Order in RuizBueno v. Scott. Not only did it all make sense, it was reasonable and rational. To top it off the support came right out of the Advisory Committee Notes to Fed.R.Civ.P. 26(b) itself–in 1946!

To keep a long story extended, one party’s attorney was recalcitrant and intractable about answering two interrogatories inquiring into what and how counsel searched for emails requested and subject to production. The emails were relevant but remarkably the emails were bot produced. Due to the apparent conduct and a lack of cooperation, the issue of how counsel handled the discovery process itself became relevant to the proceeding. After all, these days it seems the attenuated line between intentionally hiding evidence and being non-cooperative during discovery is more delicate than ever.

Ideally Apparent

The Court proffered a perfect solution based on compliance with the spirit (and basis) of the Rules: “In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements ……. and would have actively sought to avoid such disagreements through collaboration.”

The Court went through a fully cited primer that, understandably, sounds like a lecture to counsel on how to behave. After sounding constrained but frustrated by counsel’s failure to respond to what efforts were undertaken to locate certain emails, the Court described the conduct and justified how “discovery into discovery” became relevant and appropriate. By this point in the sermon, I had been fully converted and was even sitting in the balcony with the choir.

Restraint Queried

To emphasis the point the Court posed apparently rhetorical, and reasonable, questions about the searching for the emails : “How did the individual defendants do that here? Through keyword searches? Through searching by sender or recipient? Through searching emails sent or received in a specified time frame? Or going by memory? Did they all do it the same way, or were they left to pick among various methods? The record provides no answer to these questions.” The fact the Judge ends up only ordering the interrogatories be answered shows greater restraint, patience and tolerance than many other courts I have seen exhibit.

The Court emphasized the preferable way to have handled the discovery process in explaining the seemingly unusual ruling:

What should have occurred  here is . . . counsel should have engaged in a collaborative effort to solve the problem.  That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough.  That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable.  That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.

Confronting Communication

Counsel had argued collaborating with opposing counsel on discovery would violate the duty of zealously advocating for the client and could be volitional of client owed privileges. The Court addressed this contention with a cite to Mancia v. Mayflower, 253 F.R.D. 354 (D. Md. 2008):

It cannot seriously be disputed that compliance with the “spirit and purposes” of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation.  Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Changing Collaboration

With Minnesota’s state court amended discovery rules in effect, I anticipate seeing the Courts begin to rule the same in future discovery disputes. It will be interesting to see if the emphasized collaboration will come to pass.

The discovery process is conducted with such adversarial zeal since I began practicing, it is normal to expect relevant information will be withheld (at least I expect it). It was fairly common for me to request and receive attorney’s fee awards as a sanction against opponents for dilatory and incomplete discovery answers/responses.

Compelled Recollection

This is no longer the case. Not that there is more cooperation. It is just the Courts got tired of the constant discovery squabbles. Now a hearing on a motion to compel is rare with informal letter briefs required and tele-cons with the Court taking place instead of formal motion hearings. But I still fondly recall when it wasn’t so . . . .

About 10 years, I brought a motion to compel answers and responses to discovery that were well overdue and did not appear forthcoming despite my constant cajoling. My opponent eventually produced the discovery but not until I had noticed the motion and had filed/served all required supporting papers.

It was at about a week before the hearing and he called asking if I would cancel the motion since it was moot now that I got what I wanted. I said I was not inclined to do so unless he paid $500 for the fees my client incurred for me preparing/filing the motion (he had been thoroughly forewarned well in advance of being served). He scoffed at me. So I said I would ask for more than $500.00 from the Court and see him at the hearing.

The hearing went forward and I kept my word to counsel. The same argument was made. The Court found that since my client incurred the fees to get the discovery produced, the fees would be awarded against counsel. The Judge ordered fees of $1,000.00 based on the motion submitted.

I sure haven’t had that happen in a while. Maybe that’s good . . .


Technically Lawful

Learning New Things–a/k/a Dog Ain’t Too Old Yet

  • The Clouds Gatherschool-blackboard

I now have all of my new cloud-hosted (most of it) Westlaw Litigation Solutions Package installed. I nave been going through training on it for a few weeks now. It sure seems like a lot to learn. There is an undeniably steep investment up front of time. From what I have seen so far, the pay off will be worth it in the end–or maybe “in the beginning” is more apt.

  • Time Shall Unfold What Plighted Cunning Hides

I can tell it will eventually make my practice more efficient and economical. The time consumed by discovery seems to grow exponentially from one case to the next. It has gotten to the point where if Shakespeare were alive, Discovery would have had a recurring role in his plays and sonnets. But if these new tools can help me save some even a little time spent on discovery, they will pay for themselves promptly.

I still have more training left. I can’t wait to feel conformable and confident with the new system. That won’t happen until I use all of this in a real case. I’m still grasping to understand it all so I can’t really write too much about it.

  • Techno-Cloudiness

I will just let attorney Ashley Hallene describe the “Hosted Practice Technology” I am learning. The following is from Attorney Hallene’s article for the American Bar Association‘s January 2013 edition of GPSolo eReport:

Hosted Practice Technology unites a comprehensive suite of litigation solutions into a single user interface. Two solutions that it integrates are cloud-based versions of Westlaw’s Case Notebook and CaseLogistix. Case Notebook assists attorneys in case analysis and in creating an electronic case file. CaseLogistix is a document review e-discovery tool. With this product Thomson Reuters will offer scalable storage space to accommodate documents and files associated with complex litigation.

The whole article is here and discusses the cloud-hosted practice management I use too called “Firm Central.” Firm Central is designed to integrate with my new products. This will all  be a topic for another post.

  • Being Product Trained 

Last month I began training with an introduction to the system called “Hosted Case Analysis Premier.” It covered  Case Notebook but I may have forgotten everything I was supposed to learn since I have not used it on my own yet. the amount of information they show you is overwhelming. My trainer has put up with my incessant interruptions. I can’t help it. I only interrupt to slow things down and try to relate what I’m learning to something I know. At least that way I try to make sure I am absorbing all the new information flying at me.

Last week I had training on CaseLogistix. I see this as an assistant that will help me organize and review discovery. It has a ton of functions that seem daunting to learn, but the user interface is familiar and reminds me of Microsoft Office. That will make my learning curve much less steep and the program’s potential to save time is readily apparent to me.

  • The Schooling Continues

This week I have training on Drafting Assistant-Litigation.  It’s basically a plug-in for Word that incorporates Westlaw research right into the word processor. It has some cool tricks for checking citations, organizing research and finding relevant precedence without leaving Word. If my version of Word 201 would stop blocking it as a potential threat it would be even better. The damn security settings are so ridiculous I think Bill Gates must fear for my personal safety.

After that I have a couple more training sessions to go through and the trainer said they will be the most technical of them all. The problem is I am learning the front-end and back-end of the system. As a solo I have to use both. It would be easier to just master the front-end as a typical attorney user would do, but I will know it better and I gotta pay for both ends anyway so I might as well learn all of it.

More reports from Training Camp to come . . .



Fraudulently Fooled, Litigation of Business | Business of Litigation

Best Password Idea Ever!

"Enter Password"

I use a couple of different apps to secure, assign and remember my passwords and I couldn’t live without them. But this is clever. It does not fix the risk of using the same password for more than one website, but it is clearly the winner of 2013’s “Damn, why didn’t I think of that?” award.

Click the following link to reveal this excellent idea in an article from Business Insider:

Idea For Easy-To-Remember Passwords – Business Insider



Attorneys & Lawyers & Counselors

The Discovery Plan–Sage e-discovery Advice

Following is a link to a full post by New York attorney, Mark Lyon, who blogs at Although it doesn’t look like he’s licensed in Minnesota (but is in a few other places) he must be a pretty smart, tech-oriented kind of guy. You’ll see what I mean when you read his post about discovery conferences under new Rule 26.06 that sprang to life due to this year’s amendments to the Minnesota Rules of Civil Procedure.

I have two of these Rule 26.06 (c) conferences this week so  I am appreciating the pertinent advice. These mandatory conferences seem to come up so quick that, thinking about it, I have not really been as ready as I would like. All of my discovery conferences to date have been perfunctory and mundane (except for my first, which was with a pro se litigant and a story for another day). So, to start the week, here is Mark’s post:

Minnesota Updates Discovery Rules | Mark Lyon