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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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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Legally Educated, Litigation of Business | Business of Litigation

Risky Business—Why you Operate as an LLC or Corporation

“Whenever you see a successful business, someone once made a courageous decision.” ― Peter F. Drucker, Getting Started

Every new venture is as unique as the people trying to start it up and each new business has its own distinct needs and challenges. One thing they all have in common is the people who are willing to take risks.

There are few universal truths in anything , but one that runs through all businesses, is to make sure your personal assets are not at stake. In order for a new business to have the best chance of succeeding, it must start with a rock solid foundation that allows it to take risks and hopefully reap great rewards. In case the risk does what it is inclined to do, there must be built in protection for the risk-taking owners’ personal assets. The key to that protection is to form a business entity to run under before the first Open sign is hung.

Some for You & Some for Me

Law_Firm_ImageMost people that call me about starting up a new business already understand that running it as corporation (Inc.) or a limited liability company (LLC) is what they must do to protect their personal assets. If the business is organized as a corporation or LLC, the possibility of the owners being personally responsible for the business’s debts and liabilities is much diminished. The best way to build in this protection is to take advantage of the liability shields authorized under state law. These laws, usually statutory, authorize the creation of a separate legal entity to conduct business through that will bear the burdens that may befall. On the flip side, the Inc./LLC also bears the benefits, which the government is happy to see created since it gets to relieve you of some of the burdens of those benefits, i.e., taxes.

Personally Protected

The owners of a corporation or LLC can be protected from personal liability for the business’s debts as long as the business is formally organized, operated and maintained under their state’s laws governing businesses. This personal liability protection is commonly called a “liability shield” or “corporate shield” and can be extremely valuable if the new business does not do well.

For instance, if a business has one deal go wrong at the worst time possible (when else does it happen?) it could be financially ruinous to the company. It may force the business to file for bankruptcy. Or if things are bad enough, two or more creditors could file petition for an involuntarily bankruptcy against your company, forcing your business into bankruptcy court so the creditors would have a better chance of recouping what they are owed (at least some). Under either of these scenarios, if the liability shield has been maintained so it is intact and enforceable, your business’s creditors would be unable to get a judgment against the you as the owner personally. This helps to encourage people to take chances and start businesses, something the government sees as a valuable to society.United_States_Bankruptcy_Court_Seal

Doing it for Themselves

A number of businesses I represent seem to be increasingly formed without a lawyer’s assistance. Especially by anyone who has been involved with the ownership of an incorporated/organized small business (or LLC) before. In law school, my Corp Prof explained how you only had to fill out a few lines on a postcard, check a couple of boxes and then pay a fee to form a Minnesota corporation, I was flabbergasted! (Yeah, I said a postcard. And flabbergasted. At the time, the form was the size of a large postcard. And the State didn’t have many decent or useful websites either. I don’t have any excuse for flabbergasted).

Flying Solo

For a single owner just going out and doing her own thing, forming a corporation or LLC in Minnesota is easy and can be done without a lawyer. In fact, the page, “Starting a Business or Nonprofit” at the Minnesota Secretary of State’s website, that has some great information for startups, only mentions the word “lawyer” once, the same number of times it uses “accountant.” If you have the right forms from the Secretary of State, a link to the business filing website and a credit card that is about all you will need (You can use your checkbook, a stamp and a paper application, but it is on 81/2” X 11″ paper—larger than a postcard).

Multiples Need Counsel

If there is more than one owner, I always recommend getting an attorney involved. Usually to make sure the new business gets an operating agreement, control agreement or a buy-sell agreement in place right away that will define the owners’ mutual rights and responsibilities and address how any future disputes will be addressed and handles (a business prenup). After all, business partners get along great when they are broke and just opening the doors to an exciting, promising and unknown future. The fussing and feuding never starts until after they taste some success, want more and ain’t gonna share. Once that point is reached, it can be impossible to agree on anything, let alone how to resolve any disputes like the one going on now!

Here are some more resources to help you startup your Minnesota business so it has a solid foundation and you can feel a bit better about the risks you want to take.

Governmental Resources With More Information

 

Organizing. Planning. Financing. Licensing. Hiring. Managing. Growing.

The Minnesota Department of Employment & Economic Development’s Division’s Small Business Assistance’s website maintains a handy directory of license and permit information. SMALL BUSINESS ASSISTANCE” also puts put out numerous helpful publications for the new business, including an awesome book everyone thinking about starting a business in Minnesota should have, and it is even more awesome as a digital download: “A Guide to Starting a Business in Minnesota.” Simply essential.

In order to pay for all the awesomeness, we cannot forget about the really useful tax info (forms, schedules, instructions, etc.) at the websites for Uncle Sam and Aunt Minnie.

The Three Ds:

DEPARTMENT OF EMPLOYMENT & ECONOMIC DEVELOPMENT or DEED (MN Unemployment Insurance Program);

DEPARTMENT OF LABOR & INDUSTRY affectionately called DOLI (pronounced “Dolly”)(Worker’s Compensation & Trades Licensing for Boiler operators, Building officials, Contractors, Electricians, Elevators and more!); and last but not least:

DEPARTMENT OF COMMERCE (Licensing info for Banks, Credit Unions, Insurance, Securities, you know “commerce” stuff).

Now go forth and start your own business! (and if you get sued, I know this guy that’s a business litigator . . . I think this is that lawyer’s website).

 

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Discovered on Demand, Legally Educated, Litigation of Business | Business of Litigation, Publicly Recorded

LOCATING ASSETS–MINNESOTA BUSINESS FILING RECORDS

5

Information Available

Businesses are generally required to maintain some records with the Minnesota Secretary of State’s office in order to enjoy the legal benefits of being a corporation or for an out-of-state company to lawfully conduct business in Minnesota.  Sole proprietors also commonly file assumed names or “doing business as” information with the Secretary of State’s office.   Secured creditors also file various secured interest documents, which may provide information regarding any liens or other secured interests in a debtors’ property.  As is true for all public record information, business-filing records are only as accurate and up to date as what was provided to the government.  That being said, a great deal of identification, location and ownership information may be obtained from the Secretary of State’s records.  

Access to Business Registration Information 

The Minnesota Secretary of State’s office is located at: 

Minnesota Secretary of State

180 State Office Building

St. Paul, MN 55155 

And may be contacted by the following means for business registration information:

Phone: (651) 296-2803, Toll Free: 1-877-551-6767 Office Hours: 8:00 A.M. to 4:30 P.M.

www.sos.state.mn.us 

A simple phone call or visit to their website will obtain information about a registered business.  Information available includes proper entity name, registered addresses for service of process (if provided), persons registered to accept service of process (if provided), business location, type of entity, good standing status, year of formation, filing numbers, etc.  All of this information may provide valuable information in locating debtors and their assets.  It is also helpful for properly effecting post judgment remedies.

Access to Secured Transaction (UCC) and Tax Lien Recordslocked money

UCC filings and tax lien filings may provide a wealth of information about particular debtors’ location and assets.  Those records are maintained by the Secretary of State’s office and are accessible in person, by mail or on the Internet.  All manners of access have a minimal processing fee associated with the documents’ retrieval, photocopying and mailing. 

The Minnesota Central Filing System is a combination of the Secretary of State’s office and 80 individual county satellite offices.  Certified searches and inquiry searches (UCC-11 requests form available at http://www.sos.state.mn.us/uccd/ucc11.pdf) can be requested from any county filing office or the Secretary of State’s office. The results provided are inclusive of all county offices.

In order to do a fully comprehensive search, it is recommended creditors’ counsel does not only rely on what is provided by the State.  A much better practice is for creditors’ or their representatives to conduct their own search of the State’s records.  The main point is to run differing name variations searches on the same company.  Of course, this may be done by driving to the Secretary of State’s office, or via its website for a yearly access fee.

MKT

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Appealing Appeals Applied, Fraudulently Fooled, Legally Educated

Pretrial e-mail Scam Reports from Minnesota Court of Appeals

WARNING, SCAMMER ALERT!

The Minnesota courts website, www.mncourts.gov, reports fraudulent emails appearing to be from the a Court of Appeals has been making the rounds to in-boxes recently.  The official notice is below.

Five More Tips It’s a Fraud

1. No “complaint” originally filed with Court of Appeals

2. E-mail address not governmental

3. No “trial” in Court of Appeals

4. Poor grammar

5. No electronic communications YET from Minnesota Appellate Courts.

They play off fear and ignorance to have you bite on these e-mail scams so that you will open the attachments.  Don’t do it unless you have confirmed the e-mail from other sources first. Be diligent people!!! The fraud will never end but can be beaten with caution, knowledge and education!

MKT

Notice: Pretrial e-mail Scam Reported

The Minnesota Judicial Branch has learned of an e-mail scam where recipients are receiving a pretrial notice regarding a court complaint.  The public should be aware that the e-mails are not coming from the Minnesota Judicial Branch or the Minnesota appellate courts, and they should not open the e-mail or respond.  Official court communications will only be sent by phone or U.S. mail.  An example of the message is included below:

FROM: Minnesota Court of Appeals

Mon 2/3/2014 8:46 PM Pretrial notice Hereby we confirm that your complaint has been received together with enclosures dated January 30, 2014. The complaint will be reviewed in court in the nearest possible time based on the documents and information you have previously provided. You do not have to be present at trial in person if the Court does not suggest otherwise. Please use this link to check your complaint once again and confirm it. If we do not get your confirmation the claim will be cancelled. You will be further notified without delay of any judgement delivered in regard to your complaint. Sincerely, Court secretary

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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!

SCOTUS

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 . . .

MKT

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Appealing Appeals Applied, Attorneys & Lawyers & Counselors

Practice Tip for Aspiring Appellate Attorneys

courthouse-1330873-mIf you want a successful win/loss record* as an appellate attorney, always remember to only represent the Respondent when a case goes up on appeal.

In 2012, US federal courts of appeal granted the Appellants reversals in only around 12% of all civil cases appealed out from federal district courts, considered federal trial courts.

Nationwide in 2008 (most recent data I found), the combined rate for US state intermediate appellate courts  (e.g., usually state “courts of appeal”) that reversed lower court decisions averaged out at only 15%.

Also nationwide in 2008, in cases appealed to a state court of last resort (e.g., usually a state “supreme court”) the cases affirmed outnumbered reversals more than two-to-one. While nationwide the same year, cases affirmed by state intermediate appellate courts outnumbered reversals at a rate of four-to-one.

Finally in 2008, leaving my local courts last, but certainly not considering them least, in deciding 147 civil and criminal appeals combined, the Supreme Court of Minnesota only issued reversals in about 14% of all appeals. Meanwhile, in Minnesota’s intermediate appellate court, the Court of Appeals decided 2,046 criminal and civil cases, with the Appellants doing slightly better by obtaining reversals about 16% of the time.

The numbers don ‘t lie. If you want to have the best possible win/loss record for your appellate practice, the odds are much higher if you only represent the party that prevailed at trial court level: The Respondent.

If your practice allows you to pick and choose cases on this basis, please leave a detailed comment below explaining for me how it’s done, because I sure don’t enjoy that luxury in my practice!

* Other outcomes may be considered a “win” or a “loss” as well, but are not incorporated in the above discussion in order to keep the definition of a “win” as clean, clear and indisputable as possible. The outcomes left out that could be considered either a “win” or a “loss,” depending on the interpretation of each particular case’s final result, can include cases where an appellate decision is issued that modifies a lower court’s decision (one way or the other), cases when an order is issued dismissing an appeal (for any number of reasons), cases when an Appellant voluntarily agrees to dismiss the appeal (usually with undisclosed reasons), along with many other potential outcomes that are never so neatly and distinctly defined that they fit in a classical “win” column or “loss “column.

MKT–MKT Law–Appellate Practice Information

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