Attorneys & Lawyers & Counselors, It's Criminal!, Litigation of Business | Business of Litigation

Minnesota’s Worthless Check Statute–Bounce! Bounce! Bounce!

BounceBounceBounceBounce

~Fatty Koo circa 2005

Rubber Checks

I got a call today for the first time in years by someone who got a bad check as payment for services rendered. I remembered at some point in time there was a Minnesota Statute on point and I seemed to recall it had some significant penalties. Significant as in the penalty doubled the amount of the check.

The Statute 

Never took a bad check

Never took a bad check

I took a look through the books and found the statute and it looked right on at first blush. It is Minnesota Statute, Section 604.113 and it goes like this:

Whoever issues any check that is dishonored is liable for the following penalties:

A service charge, not to exceed $30 . . . if notice of the service charge was conspicuously displayed on the premises when the check was issued . . .

If the amount of the dishonored check is not paid within 30 days after the payee or holder has mailed notice of dishonor . . . and a description of the penalties contained in this subdivision, whoever issued the dishonored check is liable to
the payee or holder of the check for . . .

the amount of the check, the service charge . . .  plus a civil penalty of up to $100 or the value of the check, whichever is greater.  In determining the amount of the penalty, the court shall consider the amount of the check and the reason for nonpayment.

Minn.Stat. § 604.113.

A Couple Problems

  • #1

Well, I had a few problems here. The first is rather obvious: Unless you are a retail store, odds are you do not have a sign prominently exhibited stating a service charge of $30.00 will be charged on all bounced checks. My caller was not a retail store and instead provides services at someone else’s place of business. So one down.

  • #2

So you read along deeper into the statue and you see the $100 penalty.

Well, that’s mighty nice of our legislators to toss us that bone but, well, it’s just nice, I guess. That’s it.

coinsA hundred bucks is not that big of an incentive if the rubber check that bounced is for a couple/few thousand dollars or more.

As you read on you come across the “or the value of the check, whichever is greater” part and you say:

Oh you brilliant elected officials! You based it on the amount of the check! It could not make more sense or been done in a better way. That has some teeth!

As usual, nothing is a good as it looks at first and you have to read the next sentence. With a casual read, it seems like it’s all good: It has the word Penalty and the word Court and the word Must. Nothing wrong here. But that is exactly what is wrong.

  • #3

It is highly likely the Court will save the harshest penalty for the most egregious situations.It is doubtful the Court will throw the book at a check writer who bounced a single check for less than a couple hundred dollars. This only makes since since the statute says the court has to consider the amount and reason for the rubber check. And by saying the Court has to consider these factors, you cannot get a default judgment with the penalties added on (no one there to say why). See also Metro Gold, Inc. v. Coin, 757 N.W.2d 924, 928 (Minn. Ct. App. 2008)(due to doctrine of impossibility, comatose man not liable for penalties since he could not make the check good within the 30 day window allowed).

Attorney’s Fees to Save the Day?twistedcheck

Attorney’s fees are available if all bad checks together are over $1,250. However, the amount of those fees are also discretionary with the Court and it just doesn’t make a whole lot of sense to impose a lot in attorney’s fees on a person whose bank account couldn’t fund the initial purchase as it is. So there’s that . . .

It’s a Crime to Bounce

There are criminal penalties for issuing worthless checks too: It is a misdemeanor if the check is under $250; A gross misdemeanor if the check is over $250 but less than $500; A felony if the check is over $500 (or if all bad checks written in a six month period added together are more than $500). Minn. Stat. § 609.535.

Fun, Fun, Fun with the FDCPA

Finally, if you are a debt collector, be wary of using this statute at all. A violation of the FDCPA can subject the debt collector to liability for actual damages, a $1,000.00 statutory penalty and an award of the debtor’s attorney’s fees (attorney’s fees are mandatory and have been 6 and even 10 times the amount recovered for the plaintiff). Phenow v. Johnson, Rodenberg & Lauinger, PLLP, 766 F. Supp. 2d 955, 959 (D. Minn. 2011).

There are cases with claims under the Fair Debt Collection Practices Act (FDCPA) where the Court found the FDCPA was violated by a collector for overstating the effect and amount of Minn. Stat. § 604.113 by saying the penalties “would be” imposed or that the debtor “was liable” for the penalties. Picht v. John R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001)womancheque.

Because the amounts are not fixed and the amount can only be finally determined by a Court, collection letters that state the penalties “will” or “shall” be imposed have been found to be volitional under the FDCPA §1692f(1)(prohibiting the attempt to collect any sum not specifically authorized by contract or law and strictly applied using the “unsophisticated consumer” as the baseline for determining violations).  See Duffy v. Landberg, 215 F.3d 871, 875 (8th Cir. 2000)(debt collector stating interest that was inflated by $0.65-yes 65 cents-found to have violated FDCPA).

Carefully Closing

Minnesota’s worthless check statute: It’s not totally toothless–it can bite you back.

MKT

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Fraudulently Fooled

Not So Fancy . . . It’s a Forgery?

Oh no, Iggy is suing an ex-boyfriend for copyright infringement and other intellectual property claims! The lawsuit alleges that in 2008 the ex (he was 33 and she was 17 at the time) downloaded some songs Iggy had stored on her laptop. Iggy had recorded the raps long before becoming so well known and overplayed (don’t get me wrong, she’s awesome). The ex says he has a signed contract giving him the rights to use (and profit from) the early material.

But the Complaint alleges the contract is bogus:

The Forged Agreement contains tell-tale signs that it is not genuine.
For example, it includes mismatched fonts on the signature page; the signature page
contains no substantive text; the paragraph numbers are out of sequence; the signature line is for “Wine Enterprises, inc.” [sic] rather than, as is customary, for an authorized agent; and it provides, as an address for legal notices, the contact information of an attorney who had no knowledge of the Forged Agreement until Azalea’s representatives recently brought it to his attention.

I love the part where they list an attorney’s name on the document, someone contacts the attorney and he doesn’t know what the hell they’re talking about. Can he charge a fee to the ex for listing him as the attorney on the agreement? I hope so.

Anyway, the story gets more interesting but you have to read between the lines and make things up, I guess. Here’s the Complaint and a much more complete and compelling version of the story.

BTW: No pictures because I don’t want Izzy to sue me too!

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Civilized Proceedings, Discovered on Demand

The Neverending Battle . . .

record-and-archiveNew amendments have been proposed again to the Federal Rules of Civil Procedure. Once again, the proposals have the goal of limiting discovery and the burden and expense that goes along with it. As the Judicial Conference described the recommendations from the Advisory Committee on the Federal Rules of Civil Procedure that were sent to the US Supreme Court this week:

The proposed changes seek to reduce litigation costs and delays by encouraging early case management by judges, increased cooperation among the parties, and the proportional use of discovery based on the needs of the case.

pending-rulesYou can find the proposed civil rule amendments here: Pending Rules Amendment page. And if you really want to learn more, you can review a memo describing the changes here: Proposed Amendments.

The most interesting aspect for me is the increased involvement of Judges early in the discovery process to try and keep it under control. I have not found a Judge yet that wants to be more involved with the discproposed-amendmentsovery process in civil cases.

I think it may be what is needed (or at least should be tried) to reign in the out of control and overly broad discovery process that results in a a lot of time and money being consumed while providing information that is not even colorably relevant to a case.

But I have my doubts that after 4 decades of trying to alter discovery under the procedural rules that this will have much of an impact even if it is adopted by the SCOTUS and Congress allows the amendments to the rules. I hope so, but we’ll have to wait and see . . . Even if all goes as planned, the amendments won’t go into effect until December of 2015.

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Minding My Own Business, On Lines & Inner Nets, Technically Lawful

Despite Denials, Court says Yelp! May Alter Ratings as Ad Sales Tactic

yelp_logo (1)How much trust do you put in online reviews of local businesses? A lot of people use  them as a decision-making tool before spending their hard-earned money on a good or service. Quite often and understandably, small business owners with a poor review or rating want to sue the messenger.

Recently, Yelp! was sued for manipulating some small businesses’ online ratings after the companies would not buy, or quit, advertising on Yelp!’s website. Continuing to deny what restaurateurs have said was true for years, Yelp! says it does not rearrange positive and negative reviews so they are higher or lower on a review list. At times in can seem the reviews are posted without any discernible reason other than to impact consumers’ perceptions.

However, Yelp! got another positive review from a federal court last week and this one is at the top of the list. The Ninth Circuit Court of Appeals, ruled in Yelp!’s favor and confirmed the business owners that brought the suit did not sufficiently allege they suffered from “economic extortion.”  The allegations included that the businesses’ ranking’s had plunged following negative encounters with Yelp! staff or sales reps usually over ad sales. The Court explained:

The business owners may deem the posting or order of user reviews as a threat of economic harm, but it is not unlawful for Yelp to post and sequence the reviews. As Yelp has the right to charge for legitimate advertising services, the threat of economic harm that Yelp leveraged is, at most, hard bargaining.

Did you catch that? Yelp! may legally post the reviews it wants to, and not the ones it does not, and in any order it wants. That means Yelp! has the right to not post particular reviews (good or bad), can bury a bad review or raise an older, positive review from the obscure second or unseen third page to the most prominent top spot on page one.

The yelpblindly trusted, and unreliable, user reviews we dutifully turn to and place so much credence in before making a purchasing decision may lawfully be manipulated by the companies that own them. Worse yet, the purely portrayed common man’s opinion may be dishonestly altered in order to deceive consumers to make a profit.

The other conduct Yelp! was accused of was writing negative reviews itself. The Court didn’t find it plausible and found dismissal of the claim proper. Although Yelp! has admitted it used to pay folks to write reviews during its infancy, the Court determined the factual allegations were insufficient to allow the case to continue.promo_yelp

In 2007, the CEO for Yelp! even wrote in a blog post (where else?) for The New York Times “there was a time in our earlier days where we experimented with paying for reviews directly in cities outside of San Francisco to help get the ball rolling in our otherwise empty site.”  Yet, pleading this fact coupled with some rather weak allegations did not suffice.

But the Court does offer an assurance to small business owners everywhere when it concludes the opening the Court’s written opinion by hinting there may be a way to attack Yelp!’s alleged conduct:

We emphasize that we are not holding that no cause of action exists that would cover conduct such as that alleged, if adequately pled. But for all the reasons noted, extortion is an exceedingly narrow concept as applied to fundamentally economic behavior. The business owners have not alleged a legal theory or plausible facts to support the theories they do argue.

The hint is nice. Kinda like “Come on lawyers, the answer is right there! Just use it!”

Don’t worry Yelp!. I won’t say what claim to use either . . .

More on This:

The Terrible Yelp Ruling Isn’t So Bad–The New Yorker

Court rules for Yelp in suit over online ratings – SFGate.

MKT

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Fraudulently Fooled

Another Scam Posing as Court Seeking Personal ID from “Jurors”

From the United States Courts, a new personal information scam posing as seeking information related to serving as a juror in federal court:

 Juror Scam

THIRD BRANCH NEWS

  1. gov | court locator | news

 

Public Alert: New Juror Scam Seeks Personal Data

A new juror scam email, which fraudulently seeks personal information that could aid identity theft,has been reported in at least 14 federal court districts.According to the Administrative Office of the U.S. Courts, citizens received emails claimingtheyhad been selected for jury service and demanding that they return a form with such information as Social Security and driver’s license numbers, date of birth, cell phone number, and mother’s maiden name.According to the email, anyone who failed toprovide the information would be ordered to court to explain their failure, and could face fines and jail time. The email also falsely claimed that itwas affiliated witheJuror, an online registration program used in about 80 U.S. court districts.Read the full story
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On Lines & Inner Nets

Business Nerd News–Minnesota’s New Businesses Still Prefer LLC over INC (3-to-1)

Whoo Hoo! I just got done reading the latest economic studies covering the first quarter for Minnesota from St. Cloud State University and can’t wait to share: There were 10,406 new business filings in the metro alone through April 30, 2014. That’s almost 3/4 of a percent higher than last year. New businesses are still preferring (no surprise) to file as limited liability companies (LLC) under Minn. Stat. 322B rather than as business corporations (Inc.) under Minn. Stat. 302A. In fact, the preference is at a rate of about 3 to 1 this year so far. Also good news for not-for-profit formations. There were almost 9% more non-profits formed this year over 2013 at the same time. For more business nerd news, look to my source: Metropolitan Area and Business Conditions Report–First Quarter 2014 found here. p.s. I tried to post some cool graphs to show y’all this visually but they didn’t work out so well. Alas, the plain text post only.

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Attorneys & Lawyers & Counselors, On Lines & Inner Nets

Legal E-mail Disclaimer Post (reblogged)

Here’s a great post from a Texas lawyer, Mark Bennett, from his blog called “Defending People – the toa of criminal-defense trial lawyering” descriptively entitled “Stupid Lawyer-E-mail Disclaimer.” Enjoy.

http://blog.bennettandbennett.com/2014/07/stupid-lawyer-email-disclaimer.html

For my Stupid Lawyer Disclaimer, please click here. Mine is (hopefully) an obvious joke.

Now I’m wondering if the disclaimer in this post is serious. Since it is almost as far over the top as my disclaimer is maybe it is not to be taken seriously? Maybe it actually is serious?

Oh no! Is my disclaimer being taken seriously? Maybe my disclaimer needs a humor disclaimer? Hmmmmmm? I must ponder and research this weighty and circular legal issue.  I’ll report back soon.

MKT

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Fraudulently Fooled

Latest in Deceptive Marketing

For direct marketing, it must be a significant hurdle to clear to just get your mailing opened rather than instantly recycled. Twice in two months I have received the same mailing.

With all of the recalls GM has issued lately and the horrible news about the ignition switch defect that was apparently only a few bucks to fix yet it was not disclosed and people died due to the defect. You might have to own a General Motors vehicle for it to have the greatest impact.

envelope2

As you see, the mailing looks pretty important with the tear-off strips to open the sides, the text only design (without color), the important looking serif font in ALL CAPS and the heavy use of bolded text. It almost looks governmental! Notice the warning under the REQUEST FOR ACTION line about the criminal penalties for interfering with the mail! Even a partial and incomplete cite to a federal statute is included. But don’t miss the subtle, fine print stating it is to be opened by the addressee “OR CURRENT VEHICLE OWNER ONLY.” The key to creditability is always in the discrete details.

The deception worked on me (or maybe it was curiosity) and I opened it up. Upon my first look inside it still appeared very official. But low and behold, I once I looked closer I could see it wasn’t anything special.

envelope3

I was quite disappointed to see it was just for an extended car warranty. It even says right on it  that it requires repairs to be pre-authorized (although it is in tiny print).

Now don’t get me wrong. I’m not saying it isn’t a scam. After all, have you ever had an extended auto warranty and tried to make a claim. A claim that wasn’t pre-approved?

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Civilized Proceedings, Litigation of Business | Business of Litigation

Subpoena Blues . . . Continued

Just the facts please . . .061114_0714_MondayMorni1.png

So, did you called your attorney? No, not yet? But you will? Okay. I guess, I’ll answer a few questions for you first. But only about what your attorney will need from you when you call? You need to speak to your own attorney and not just read this on some stupid blog written by someone you never met and do not even know is a real attorney. I’ll be using a lot of usuallys, generallys and ordinarilys and not many specificallys, totallys or exclusivelys.

Continuing with my last post, most attorneys will usually want details about the Subpoena when you call. When were you served? How were you served? Who is it from? What are you asked to produce? Did you know this case is going on? Do you know these people? Do you know anything about this? What court has this case? Why do they want your records? How are your records related? What did you do here? Are you sure?

MH900309662. . . and the documents too.

Ordinarily, an attorney will want to see a copy of the actual Subpoena itself along with any documents that came with it or were attached to it. There are a number of technical requirements that the Subpoena needs to comply with on it’s face, that must be included with it and how it must be delivered for it to be valid and enforceable. Plus, your attorney will want to know who served it, the parties’ names as listed in the caption and who their attorneys are, where and how the production is taking place, if it is in federal or state court, the specific language used to describe what you are supposed to produce and other things. Since most of this information comes on or with the Subpoena, I always want to see a all of it as soon as possible.

Under What Authority?

Rule 45 of the Federal and Minnesota Rules of Civil Procedure govern Subpoenas in civil lawsuits. Minn.R.Civ.P. 45.01 (2014); Fed.R.Civ.P. 45 (2014). Although already alike, after Minnesota amended its state court version of Rule 45 in 2006 the state rule is now almost a mirror image of the Federal version of Rule 45. They are similar enough to make some general observations that usually are applicable to both Rules.

Subpoena Powerflat-27287_150

The generalities begin with an attorney being an officer of the court in both forums. As such, an attorney has “Subpoena power” and usually does not need any separate authorization by a judge to use and serve a Subpoena. This power is used to compel people and businesses to provide information needed and related to a lawsuit, whether it is testimony, documentary or in some other tangible form. If you fail or refuse to comply with any type of Subpoena, a court can find you in contempt of court and impose typical contempt sanctions (fines and time in jail to obtain your compliance).

Subpoena Duces Tecum

The type of Subpoena in the post below is formally called a Subpoena Duces Tecum (meaning bring it with you or be penalized in Latin). It requires you to provide documents or other physical items, including electronic data created by and stored on a computer’s hard drive or in its memory.

In Minnesota, a Subpoena Duces Tecum usually does not involve providing testimony, but it can. You have to be certain so it is best not to rely on any ambiguous cover letters that were served with it. You need to read and comply with the actual wording in the Subpoena itself.

book-1911_150 Particulars

Based on the circumstances described in my previous post, a number of things happened with this Subpoena that should be considered.

1.      Properly Served?

The first question that always should be asked is if service of the Subpoena was proper. A Subpoena under Rule 45 has to be personally served to be effective. To be proper, there are service specifics as to who may serve the Subpoena, where and when it may be served, who it has to be served on and how it is to be served, among other requirements. Make sure your attorney knows how you got the Subpoena.

2.      Right Person?staple-160414_150

This Subpoena requires records be produced that belong to the company. As long as your business is a corporation or LLC, the Subpoena should not name a specific person and will usually name the “Records Custodian/Custodian of Records.” This usually means whoever has access to the business’s records, is responsible for maintaining them and can certify to the court (and everyone else) the records produced are what was asked for and have not been improperly altered.

3.      Witness Fees?

The attorney that served the Subpoena has to include a witness fee of $20.00 per day in Minnesota state court cases and $40.00 for federal cases. If this is not included with the Subpoena when served, the Subpoena may be considered invalid. Besides the generous per diem witness fee, the party serving the Subpoena is required to reimburse you for round trip mileage (28 cents and 55.5 cents respectively in state and federal cases) to the scheduled event (trial or deposition) from your home or workplace.

4.      Compensation?packs-163497_150

If you are not a voluntary participant in the case (or employed by one) and it involves your business or profession, you are to be compensated for your time complying with a Subpoena Duces Tecum. If the Subpoena fails to address compensation your attorney can object or bring a motion, depending on the circumstances, burden and costs involved. Arrangements to reasonably compensate you for the time required to comply with it should be addressed before compliance. However, being required to respond to a single Subpoena Duces Tecum personally and incurring nominal expenses is not presumed to be compensable under the Rule. It’s like serving as a juror to a degree: a civic duty. Protecting people who have nothing to do with the case from unreasonable burdens is preferred but not required.

5.      Timing?clock-70182_640

Rule 45 requires reasonable notice. But the rule does not set a specific time limit. Typically, ten days is enough, but why is reasonable may be shorter or longer depending on the circumstances of the case. A potential trap for the unwary is that a non-party has up to 14 days to object to the Subpoena. Because any objections must be asserted before the time set for compliance under the Subpoena, you cannot hope to take advantage of the full 14 days if the Subpoena requires a shorter time to comply. It is a good idea to assert any objections as soon as they can be determined and not wait until the last minute, or worse, think you have 14 days as stated in the Rule if the testimony or documents requested are due sooner.

6.      Reasons to Object or Quash?reading-297450_150

Subpoenas Duces Tecum may be opposed on grounds of privilege, undue burden, relevance, reasonableness, oppression and for other good cause. But keep in mind the court alone makes the final determination as to what constitutes any of these factors and what weight each one is to be given. Just like beauty is in the eye of the beholder, one person’s relevance may be extraneous to another. As a result, you should always proceed with an abundance of caution and try to comply (and document your efforts). After all, when contempt penalties are possible it is always better to be safe rather than sorry.

Conclusion

red-31172_150Although Rule 45 does provide some protections to non-parties, few are required and strict compliance will always be expected. The best way to deal with the unfortunate burden of being served with a Subpoena Duces Tecum is to act promptly and thoroughly with the guidance of an attorney. After all, there may come a day when you need to obtain information for a lawsuit and serving a Subpoena Duces Tecum on an unrelated third party may be the only way to obtain it.

Now will you call your attorney?

Next up: Conclusion: The Confidentiality Issues . . .

MKT

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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

image

(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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