Civilized Proceedings, Discovered on Demand, Litigation of Business | Business of Litigation

Monday Morning Subpoena Blues

Not the Best Way to Start Your Week

(Monday Morning 8:07 a.m.)

our receptionist walks in and hands you an envelope. As you open it up, you recognize the format and see the word SUBPOENA printed on the first page. The receptionist says someone just handed it to her and left . . . didn’t say a word.061314_1453_MondayMorni1.png You know you have no lawsuits going on. The last one settled last month. You paid the lawyer’s invoice. That pain is still vivid. It’ll be a hundred bucks just to call him about this! And then he’ll answer every question with a question. Twist it around and into a question.

Duces Tecum

(Monday Morning 8:12 a.m.)

Scanning the crisp paper quickly, your glasses slip down your nose. You focus on the names. Bold. Black. Names. Don’t know who they are. Looking it over closer, you see something is scheduled? A deposition? Not again! Oh, the custodian‘s deposition? Must mean the janitor. Isn’t “maintenance man” more correct? Luke? Yeah, Luke.Wonder what he did? Custodian! He cleans and maintains – He doesn’t custody! The stark letters form words that look like English, just not the everyday kind of English. Subpoena Duces Tecum. Must be some special subpoena.

 Duces Tecum? D-u-c-e-s Tecum. Duces T-e-c-u-m. D-u-c-e-s- T-e-c-u-m?

Duke’s Dilemma

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(Monday Morning 8:15 a.m.)

Oh, wait. The maintenance guy’s name is Duke. Not Luke! Duke Tayler . . . or something or other? Dukes Tatum? Deuces Takem? Ducks Teacup? You toss the envelope aside—not you this time.When Duke gets in you must tell him. Poor guy. After staring at it for far too long, you give in and pick up the envelope again. You pull the papers out and iron them flat. Date and time. Only a week away. Hope Duke can find a lawyer by then.

Records Recalled

(Monday Morning 8:17 a.m.)

Flipping the page, there’s a description of what’s wanted. Sounds like a project you did a year ago. Sounds the same. Maybe longer than a year? Why would the janitor have a project file like this? Moonlighting? Stealing company secrets? Yeah right.061114_0714_MondayMorni2.png It sure is specific. Horowitz & Associates. Horowitz? Horowitz? The Horowitz file! “To Custodian of Records: You are commanded to appear with all documents in your possession and under your control, relating in any way to the transaction between . . . .” Custodian of Records? Of Records! It wasn’t the janitor. It’s like custody. The Custodian of The Records! It’s not Duke. It’s you. Again. Damn it. Alright. You get it now. But where would that file be? And a week? Only a week? And if not? Then what? Duces Tecum! 

Confidences Collide

(Monday Morning 8:20 a.m.)

The way the subpoena is worded it seems like they want documents that are not related to the project too. Some documents listed are full of confidential information. Your confidential information. No one sees that except you and some ofTop_Secret_glossy the senior managers. And only when they need to. Need-to-know basis only. Some of it i s the client’s financial records. You can’t just hand that over . . . Can you? Do you have to? Maybe you should call Horowitz first? Is that legal? Duces Tecum?

Publicly Proprietary

(Monday Morning 8:22 a.m.)

Oh boy. This covers more than finances. It covers Horowitz’ processes too. Didn’t you sign something saying you would not disclose that information? And if you did there’d be hell to pay? Horowitz’ competitors would love to see this stuff. Proprietary systems and designs. The procedures and process. The underlying data. Trade secrets. Hell, your competitor’s would like to see your stuff in that file too. It’s not like Horowitz’ records, but . . . If it’s a lawsuit it’s public, right? Anyone can see it? That can’t be allowed. Can it? They can’t just do this! Or can they? Damn lawyers.

Disrupted

(Monday Morning 8:37 a.m.)image

Last time you spoke to Horowitz was the day the deal closed. It was fourteen-sixteen-some months ago. You don’t know if you can, or should, or want to call him. Just look through the files first. Figure out what’s really in there. It might not be nothing. Maybe you’re the wrong custodian and don’t have the right records? Maybe it’s a mistake? Know soon enough. Duke’s on his way out to the off-site storage. But it will still take time to find the file. You could just call the lawyer who signed the Subpoena? Won’t have to pay for that. Can you trust him? What if he tricks you? Not good. Dunce To-sum? It’s already disruptive and may jeopardize your relationship with a good client. This is the last thing you want to deal with right now. What do they think gives them a right to do this? You did nothing wrong. Horowitz? Maybe. But the deal is closed. Done. Over with. Maybe you should have returned the original file to him? Maybe that should be the new policy. And who’s paying for this wasted time? Duke doesn’t work for free! And he bills his mileage at the IRS rate. Twenty five miles to the gallon at fifty six cents per mile? Gas ain’t $14.00 a gallon! And he takes the long way back every time, too.

Instruct and Define

(Monday Morning 8:41 a.m.)

cautinAs you’re looking for your good pen on your desk, you notice a page sticking out from the envelope the subpoena came in. Must’ve missed it. Sticking out from the envelope is the stapled corner of another document. Pulling it out while unfolding it, you read the title, “Schedule A—Instructions and Definitions.” Hmm? They already asked for the whole damn file, what more could they want? The boxed up file is all you got. Wondering what more there might be, you read Schedule A’s Instructions and Definitions. The everyday words, “Instructions and Definitions” now sound foreboding.

Every Stupid Item

(Monday Morning 8:44 a.m.)

With your stomach already burning it slowly starts to churn. You look at what is on the last, and almost overlooked, pages. You read through the Instructions and Definitions. Twice. To be certain. Okay, they want every piece of paper related to the file. I get it! But gawd. For real?  There is no way! For the third time, you slowly read the paragraph again (hoping it may have changed):

 . . . all electronically stored information (ESI). You have an obligation to keep all potentially relevant internal and external emails sent or received. Email must be preserved in electronic format, regardless of whether hard copies of the information exist.

      All devices with either magnetic core or solid state random access memories should be immediately placed in a litigation hold and preserved until further notice. Remove all backup drives, tapes or other media out of regular rotation. Due to its format, electronic information is easily deleted, modified or corrupted (i.e., by data compression, disk de-fragmentation, or optimization routines). ESI must be produced to retain the associated metadata. When produced, it should be in native format and include single page TIFF files, Bates Numbered with OPT and DAT load files retaining all associated file. 

serverIT begins

(Monday Morning 8:53 a.m.) Your computers? Okay. You get it. You’ll call the IT guy too! What the hell is TIFF? And OPT DAT? Sounds like some pop star or a military acronym used only during wartime. What is the IT guy’s number filed under? Computer . . . Something … Tech … Something …Team? He’ll know what to do. He’s so damn expensive he better know what to do. Not as expensive as the lawyer. But sometimes the IT guy makes things worse. Way worse. He does make them better, but first it’s worse. Actually, the lawyer does that too. What is it with . . . oh no. You haven’t paid the IT guy’s invoice since . . . shoot! It’s at least ninety days past due. Is he going to even take your call?

So many questions?

got-a-question-1398184097TUB

(Monday Morning 8:56 a.m.)

Where do you even start? What do you have to do and by when? What happens if you don’t do anything or don’t do it on time? Do you have any rights? Can you get more time? Do you really have to give some random attorney access to your company’s trade secrets? To your client’s secrets too? It’s proprietary and valuable. He’ll fire you. Can your client sue you if you comply and hand over his trade secrets? What if you signed an NDA? Is this all public information now? Can all of our competitors can just go take a look and see it? And access to your servers? Are the computers going to be down? How are you supposed to get anything done and meet deadlines? Should you even have your employees come into work? Do you just send everyone home for the next week? Can you even stay open at all? And who is paying for all this down time? And the IT guy? And the lawyer? And the copying? And Duke’s mileage? Do you have any options? How much of this burden do you have to bear ? Do you have any rights at all? Phone-keypad183

What to do? 

(Monday Morning 9:01 a.m.)

The first thing you need to do is take a deep breath. Then call your attorney. And not too deep a breath. You need to call your attorney now. You have rights. You have options. You won’t be ruined by this. But the Rules are particular. You have to know what they are and how they work. The Rules authorizing subpoenas also protect you. But you need to know how to use them. You have no time to dawdle. Call. Your. Attorney. Now.

To be continued . . .

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On Lines & Inner Nets, Publicly Recorded

The Best 2013 List Ever!

The List
list

Since it is the New Year  almost February middle of March 15th of April end of May start of June 2014, I feel obligated to finish my “Best of 2013” list. After all, the year will be half over soon (today is the 159th day and it is only 43.56% over). You can’t do a “Best of List” of the preceding year when you are into February March April May June July of the current year. That would be way too late. Too late for polite company. It would be like wearing white shoes after Labor Day; or is it wearing white pants, no shoes, er, anything white including shoes? Who wears white shoes? Basketball players and ballerinas.  Oh! Or is it white before Memorial Day? I don’t have any white shoes . . . or ballet slippers . .  and it is almost Ground Hog Day Saint Patty’s Day Tax Day just was Memorial Day, almost so . . .. Self, get back to the list-thing.

December 2, 2013–Top Ten Cases of 2013

Everyone does a list, especially bloggers who have already wrote everything imaginable about Christmas by December 2 and can’t think of anything else to write about so they move to the next holiday. Attorneys always list their best cases–The Winners!–on their web sites. So I thought (originally no doubt): A list of my “Top Ten Cases of 2013.” Legal topics, marketing purpose, personal experiences, PERFECT! I can draft this post easily! I’ll have it up in no time. They say bloggers should write lists because people like to read lists. Not real sure why? Something about short attention spans I think. So a List it will be! I’ll be listing!

December 25, 2013–Top Ten Topical Topics of 2013

As December wore on, it kept getting harder to come up with an overall topic, a triumphant theme that tied together ten tantalizing, things tightly.  But related items made it harder. Something will come to me if I just take my time and think. And I didn’t want to post it too soon in December for fear of being perceived as a blogger who ran out of Christmas themed blog posts too soon. I did not. I still wrote about reindeer on the 23rd (in red and green fonts)! But not in a list? Hmmm. . . .

January 18, 2014–The Favorite Five 5

Once it got to be into the new year, I thought, “Well, I’ll just do a list of my, “Top Five Cases of 2013.” Listing 10 would sound too pretentious anyway. I don’t want to come off like some arrogant jerk bragging about myself. Even with 5 cases, it is still considered marketing. Five cases seems about right. A list can have 5 items. Milk, bread, sugar, coffee and . .  toilet paper. If the short attention span thing is true, then ten is too long anyway. Way too long. I’ll keep it to five. A list of 5.  Self, the list ain’t gonna write itself, ya know! 

February 28, 2014 The _____Five Cases of 2013

I knew I should have started this earlier. Like in 2012. I was finally getting ready to start listing things. OK. Top cases. Best cases? Shouldn’t be too tough. Let’s see . Above all else? The highest, the tallest, the apex? . . Top, The Best, Greater, Better, Grander, Superior, this is starting to sound like I’m describing a ballroom.  . . . What’s so superior or grand or better about Lawsuits? Settlements? Hmm . . . Maybe Outcomes?  Sounds easy enough . . . Best Resolutions.  . . . Wait! What about if it just wound up being the lesser of two (or five) bad outcomes. It was still a Grand Resolution, but it won’t sound very grand. Hmmmm?

March 21, 2014 The-Top Greatest Best Winners Most Epic Awesomeness 5 Cases of 2013

How do you define “Top Resolution”? “Win” won’t work. Best results? Expectations exceeded? Most money saved? Greatest trouble avoided? Unlikeliest results achieved? Quickest? Most cost-effective representation? Best value? Most ridiculous deadline met? Most obnoxious opponent defeated. This might be real short. This is hard. Self, write the damn list already!

May Day–The Five 2013

I know, I’ll do a list of my top 5 “Victories” of the year. I’ll make the definition general and broad enough to cover the cases I feel had a good resolution and can be easily viewed as victorious. Even if it is by those “on the outside looking in.” No lesser of two evils. Strictly feel good results. Remember the marketing! Yes. This will work. “Top Five Triumphant Victories of 2013” it is then. Now to get to the listing.

  • Not too many inside references. Check.
  • Typical attorney fashion. Check.
  • Keep the descriptions vague. Check.
  • Keep the types of cases somewhat generic. Check.
  • Have to obscure identities. Check.
  • Use a different basis for claim. Check.
  • But still keep it real. Check.
  • Only select best parts. Check.
  • Leave out negative facts. Check.
  • Don’t mention the awful parts that only I think are funny. Check.
  • Don’t mention any bad parts. Check.?
  • Didn’t I already say that one? Check!
  • Say how awesome I am. Check?
  • Make it all self-congratulatory, without sounding too braggadocio. Check.
  • But it’s for marketing purposes, ya know? check;

June 1–A List

I need to get started. But it is so hard to write a list! At least to get started I’ll write a title: “Most Victory Tops 15 Things I did Last Year Resulting  in, uh. yea. um and Better. . . .”

Aww, forget it. I’ll do it next year. Self, but there was a list or two . . .sorta.

list

 Related articles

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Story from ABA Journal

After judge’s fistfight with public defender was broken up, he returned to the bench, says report

By Martha Neil
Jun 2, 2014, 05:45 pm CDT

Updated: A Florida judge told a veteran public defender to step outside the courtroom on Monday, then punched the attorney until sheriff’s deputies broke up the altercation, WFTV reports.

Although the incident occurred outside the range of a court camera, it captured audio, including what the station describes as several loud thuds. No one was charged in the incident, and Brevard County Judge John Murphy is said to have gone back on the bench afterward and continued his criminal court call.

The fireworks occurred after a courtroom dispute in which assistant public defender Andrew Weinstock resisted pressure to waive his client’s speedy trial rights.

“If you want to fight, let’s go out back and I’ll just beat your ass,” Murphy told Weinstock as the two men exited the courtroom, WFTV reports. A short time earlier, the judge said: “You know, if I had a rock I would throw it at you right now. Stop pissing me off. Just sit down.”

Weinstock said he had expected to talk with the judge in the hallway outside the courtroom, 18th Judicial Court public defender Blaise Trettis told the station. “The attorney said that immediately upon entering the hallway he was grabbed by the collar and began to be struck. There was no discussion, no talk, not even time for anything. Just as soon as they’re in the hallway, the attorney was grabbed.”

Florida Today has obtained the courtroom video and reports that those in the courtroom applauded as the judge returned to the bench saying: “I will catch my breath eventually.”

WKMG also has a story and video.

The articles don’t include any comment from the judge or any court official.

Weinstock has now been assigned to another courtroom.

in a Tuesday written statement, Chief Judge John M. Harris said Murphy is on a paid temporary leave of absence and has agreed to take anger management classes and get unspecified “treatment.”

A spokeswoman told Florida Today on Tuesday that the Florida Bar is looking into the incident. Florida’s Judicial Qualifications Commission would not confirm to the newspaper whether it was investigating Murphy.

A county sheriff’s spokeswoman said Tuesday that the department is seeking statements from both Murphy and Weinstock.

Updated on June 5 to include more information from a subsequent ABAJournal.com post.

Fraudulently Fooled, It's Criminal!

Warning! Arrest Warrant Scam | United States Courts

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You’ve received a warrant by fax or email saying a federal law enforcement officer or an attorney for the government wants to arrest you. Charges may be for money laundering or bank fraud, or missed jury duty. To avoid arrest, the warrant says, send money.

Read more here . . .

Warning! Arrest Warrant Scam | United States Courts.

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Attorneys & Lawyers & Counselors, Civilized Proceedings, Litigation of Business | Business of Litigation

In Minnesota, June 2014 is: “File Your Hip Pocket Service Cases Month”

Ring, Ring, “Law Office.”

Hello. Yeah, uh, this is probably a stupid question, but, um, I got some legal papers here, someone gave ’em to mMH900364314e, but, they got my name on there, but, there’s no court file number listed. It’s just blank. So, like, this is fake, right? I mean, it’s just another scam, or fraud, or something. But it ain’t real with no court number on there, is it?

A common question from a potential client not realizing they were just served with a real lawsuit in Minnesota state court.

Yeah, I gotta question for ya. My client was served with papers down here from some lawyer in Minnesota. But they haven’t filed it, see?. So, we figure, the attorney is just trying to scare us. Bluffing. I’m not planning on answering it, ‘cause, ya know, there isn’t a file number to file it with. Does this sound right to you? They’re just hoping we’ll pay and don’t really wanna litigate, ya know?

–A common question from an out of state lawyer with a client being sued in Minnesota state court.

(Court File No.: __________)

courthouse-1330873-mPeople are always bewildered to hear in Minnesota we can sue someone without filing anything with the state court. All it takes is for an attorney to draft, sign and serve a summons on a defendant (with a complaint) to start a lawsuit.

It can be confusing. If you don’t think it is real without a court file number printed on it, think again, before it becomes a default judgment (with a Court File Number and dollar amount on it). And don’t bother calling the court. There will not be a record of it there. The court will have no idea A lawsuit was commenced, because the lawsuit began when the summons was served and the court was not involved. This is commonly known as “hip pocket service,” despite some legal commentators calling it “hip pocket filing.”

Minn. R. Civ. P. 3.01(a) and its OriginsMinnesota Seal

Under Rule 3.01(a) of the Minnesota Rules of Civil Procedure, “A civil action is commenced against each defendant . . . when the summons is served.” Compare that to what Rule 3 of the Federal Rules of Civil Procedure provides: “A civil action is commenced by filing with the court.” A small difference in wording, with a large impact on when a lawsuit begins.

Our current Rule 3 was a statute in Minnesota as early as 1866, when actions at law and equity were merged so that only one procedural type of civil action existed. Minn. Gen. Stat. ch. 66 (1866)(Minn. Stat. Ann. § 540.01 superseded by Rules); and Bond v. Pennsylvania R. Co., 124 Minn. 195, 144 N.W. 942 (1914)(discussing this history).

Minnesota’s statutes progeny began in 1851 when we were still a territory and continued after Minnesota became the 32nd state in 1858. Id. In the 1866 version of Minnesota’s Rule 3, it was spread out among two sections. See Section 13 and 14, c. 66, G. S. 1866. The two sections were combined into one through the 1905 revisions to Minnesota’s statutes (Revised Laws). See Section 4102, R. L. 1905.

Can’t Find My Pocket?hip pocket

I searched but could not find “hip pocket service” or “hip pocket filing” used by a Minnesota appellate court, although it is used by the advisory committee in comments to Rule 12 of the General Rules of Practice in 2009. Suffice it to say the procedure has been around a long time. I will leave the exact origin of the affectionately used slang term a mystery for now.

Only North and South Dakota have the same procedure as Minnesota. In some other states you can serve a summons before filing, but the case must be filed shortly after service is complete (from a little over a week to a few months later). The majority of states follow the federal rule and require you to file (and pay the fee) to start a lawsuit.

Effect of Not FilingMB900216576

Pocket service can save you from immediately paying the filing fee for a lawsuit. This is nothing to scuff at with the filing fees for a civil action at about $325.00, unless you want a jury, then add on another $102.00. Other benefits are significant and be attractive for many cases.

moneymoneyAfter service (about $60 to $100), you have an active lawsuit not under court supervision and no court-imposed deadlines apply, but you can engage in discovery and the case can proceed with all of the civil procedure rules applying. Not filing can be beneficial in settling cases early with less expense. Sometimes it can be abused by a plaintiff with a weak case looking for a nuisance value settlement. But still not without a counterbalance: A defendant can file the case at anytime too.. As defense counsel, I’ve filed first many times to call a plaintiff’s apparent bluff.

How Many?

Since the case is not filed, there is no way to count how many lawsuits are actually are pending. If a suit is timely served, it could have remained pending indefinitely. In 2011, it was estimated (guestimated) by collection attorneys (usually suing people for credit card debt) that 50,000 un-filed consumer credit cases had been served in the state while the Great Recession was ongoing.

That was more than twice as many as the collection law firms had filed. When New York ended hip pocket filing in the early ‘90s, it saw court filings swell by about 20%. The number of un-filed cases in Minnesota is unknown a
nd unknowable, but it’s a safe bet there are more than a few and maybe a lot more.

Private Litigation

ptivateA great benefit of hip pocket service is it allows a lawsuit to be filed without being publicly disclosed. I worked on one case where it was about 6-7 years from the time it was served and neither party had any desire to file it. They were not interested in a public airing of their grievance.

They were both professionals and one of them had transmitted a loathsome disease to the other. They each had claims accusing one another of spreading the pre-existing condition to each other. Maybe it was a mutual infection? The case sat at a stalemate and lingered. I tried to find a way as a law clerk to resolve it, but could not dismiss it without filing it with the court for the whole world to see. That was not acceptable. As far as I know, that case may still be out there pending, and has been for about 20 years by now.

2013 Amendments to Rules 3.01 & 5.04

Effective July 1, 2013, Rule 3.01 was amended and now requires all cases to be filed within one year after they were served. Rule 5.04 deems a case dismissed with prejudice (the case over and can never be started again) if is not filed within a year. Perhaps as a nod to privacy, the parties can waive the one year limit and keep the case active indefinitely.MH900309662

For all of the older pending cases, the clock began to run on the effective date and the one year limit is up July 1, 2014. If not filed, your case will be automatically dismissed and you can never bring the same claim again. Great news for defendants, not so much for the tardy or absent minded plaintiff.

An Exception to Every Rule

If you have a real good reason, act promptly, have a legitimate claim and it won’t be too unfair to the person being sued, Minn. R. Civ. P. 60 may work to reopen a dismissed case. But don’t count on Rule 60 saving the case if you were negligent, inexcusably tardy, have a questionable case and/or the defendant will be at a disadvantage. It should be used  only when these factors are present.

Time to Review
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It will be interesting to see how many old cases are filed in June, especially how many are filed the last week of the month. I am sure we will hear about the numbers once they are in and I may post them here after I do. In the meantime, make sure you review all of your cases served before July 1, 2013 and get them filed ASAP or keep your head low and hope the clock runs out on any claims outstanding and un-filed. Right now, I need to go inventory my older files.

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