Do You Have a Discovery Plan?

klgallo@discoveryreferee.com (Katherine Gallo) — Wed, 01 Sep 2010 17:30:00 GMT

As a discovery referee, I normally come into cases when there already is a problem. Either discovery in the case is out of control, or the antagonism among counsel is so great that the Law and Motion Judge is done dealing with the parties. In many instances, I see an all out war between counsel, with discovery being used as a weapon. There is no rhyme or reason to the 105 special interrogatories that were served, the 200 categories of documents being demanded or the 20 depositions that have been noticed. The meet and confer process has broken down into a rampage of insults. Yet nobody has bothered asking the demanding party the fundamental question “Why do you need this?” When that question is finally posed by me, too frequently that counsel cannot answer the question. In such circumstances, it is clear to me that the attorneys have no idea what direction they want to case to proceed, no plan of attack and no idea what they are trying to accomplish. In other words--No Discovery Plan!

It is at the beginning of a case that you need to plan your litigation strategy. Before you propound discovery you need to go through three steps.

First, you need to determine your goal: Are you obtaining discovery to evaluate the case for mediation, to file a motion for summary judgment/adjudication, or to prepare for trial? Each goal has a different strategy and certain discovery devices are better suited for each goal.

In evaluating the case for mediation, form interrogatories, a preliminary set of requests for production of documents and an informal exchange of information between the parties may be all you need.
If you are going to trial, you are going to need admissible evidence, so the formal exchange of information with verification and authentication is going to be necessary as well as testimony under oath.
The discovery is going to have to be even more pinpointed if you are planning to file a motion for summary judgment/adjudication. The evidence is going to have to be verified, authenticated and uncontroverted. You are going to have to make sure that any declaration being filed by the opposition will not create a triable issue of fact. The discovery devices most effective to elicit “motion-ready” responses that can be attached to your MSJ are requests for admissions and depositions. Requests for admissions allow no wiggle room. Also, you can use them to have the opposing party authenticate documents you will need to make or oppose your MSJ, or for trial [C.C.P. §2030.010 (pdf)]. Depositions allow you to nail down the testimony – and a declarant’s subsequent declaration attempting to disavow his uncorrected deposition testimony will not defeat the motion. Weil and Brown, Civil Procedure Before Trial (TRG 2010) §10.155 citing D'Amico v. Board of Med. Examiners (1974) 11 C3d 1 (pdf)

Second, you need to determine the essential elements of each of the causes of action and the evidence you are going need to prove or defeat that cause of action.

Third, you need to determine what discovery device is best suited to obtain the evidence to achieve your goal.

After this Three-Step Analysis, serve your discovery.

Google Docs Ready for (Legal) Primetime?

Tue, 31 Aug 2010 17:32:54 GMT

Today's predominant word processors are Microsoft Word and Corel WordPerfect. MS Word is also offered as a web-based application or Saas (Software-as-a-Service). However, there is a newer type of document collaboration, where numerous people have access to the same document so that they can all contribute and monitor changes made by others. These types of applications are becoming more common. For example, Google has begun to offer its own Google Word Processor called "Google Docs" -- which allows users to share and collaborate on documents.

What does it matter which type you use in your business? Here's one comparison between the Google and Microsoft web products. But there's much more when it comes to the battle between WORD v. GOOGLE DOCS.

Sass and Microsoft Word. SaaS, which Word uses, is really a form of cloud computing, or internet-based computing. Applications such as a word processor is accessed via the Internet, and the resulting data created by the user (documents) is stored on servers managed by particular service providers. This form of service delivery has a siginificant advantage over "localized" computing from a cost and management standpoint. For example:

By paying a SaaS provider to run applications and store documents, businesses no longer have the need to purchase/upgrade their word processing software.
It reduces and/or allows the redeployment of hardware (servers) used to store documents.
Applications can be accessed anywhere, anytime as long as the user has Internet access.
For remote users, an iPhone, iPad, Blackberry, or other Android-powered phones can be used to access documents, and there is no need to login to an internal network using software such as Citrix or any flavors of VDI.
SaaS providers typically guarantee 24/7 access due to elaborate network redunduncies.
Fewer or no technical staff is needed to manage software and handle storage issues. This frees them up for other tasks.

Google Docs. Depending on your perspective, Google Docs could be a blessing or a curse. Documents created by Google Docs are devoid of metadata. This means that no document scrubbing (e.g., iScrub) is needed before they're being sent to a recipient. There is no chance of inadvertently disclosing confidential information. Additionally, numerous people can be in the document at one time, make changes, and monitor the changes others are making. This can work wonders for collaboration. Unfortunately, there are some down sides for Google Docs:

Google Docs tracks all document edits in the form of a "revision history" trail that cannot be eliminated by the user. This same trail could potentially be subpoenaed by the courts for e-discovery purposes. Google Docs, and Gmail, stores everything.
Google Docs exists as an independent product from Document Management Systems (DMS). As a result, it cannot be integrated with an in-house DMS or part of a company's overall enterprise content management (ECM) strategy. In other words, you can't develop a record retention policy that can be followed with these documents.
The document versioning method is quite different. For example, a particular MS Word document in a DMS such as iManage will present itself as "document_number.1" and a new version is saved as "document_number.2". The same document created in Google Docs will present itself as two separate entries in the "revision history". Hence, a Google Docs document would be saved as "document_name" and a new version would be saved as a separate document but renamed as "document_name_revised". As a result, there is no easy way to move all the separate entries into a DMS as a single document with different versions.

Google Docs may be more appealing to smaller businesses that do not want to worry about internal networks and in-house DMS issues. But large or small, whether Google Docs is a feasible solution depends on your business infrastructure, records compliance requirements, and the resources available to manage it. Before taking the plunge, consult with Google, your legal department, and perhaps your existing e-discovery vendor on how Google handles litigation holds and document search and retrieval in e-discovery situations.

Regardless of its short-comings, Google Docs could be a solution for certain businesses that don't require a DMS and the main focus is document collaboration without overburdening the IT staff.

David-Letterman

Tue, 31 Aug 2010 02:13:52 GMT

When I speak to e-discovery experts of all kinds about preservation, be they law firm lawyers, big or small, in-house corporate counsel, government lawyers, scholars and academics, insurance company lawyers, paralegals, lit-support, vendors, or technology gurus, they all have a common refrain. They all lament about the murky issue of when a duty to preserve is [...]

"Circumstantial" Proof of Solicitation Found Insufficient by District of New Jersey

Mon, 30 Aug 2010 22:10:13 GMT

ING Life Ins. and Annuity Co. v. Gitterman, Slip Copy, 2010 WL 3283526 (DNJ August 18, 2010)

Plaintiffs ING Life Insurance and Annuity Company (“ILIAC”) and ING Financial Advisors (“IFA”) (collectively, “Plaintiffs” or “ING”), sought to enjoin defendants, all of whom were former employees of ING, from soliciting clients to withdraw certain accounts from ING, pending the resolution of a FINRA Dispute Resolution Proceeding. The Court initially granted a preliminary TRO enjoining defendants from: (1) “soliciting, inducing or attempting to induce any customers of Plaintiffs (or their affiliated companies) to sell or transfer assets from any ING Life Insurance and Annuity Company (“ILIAC”) account, product or security” and (2) “taking any action designed to effectuate the sale or transfer of assets from any ILIAC account, product or security, including, but not limited to submitting or assisting others in submitting account withdrawal forms to ILIAC.” The District Court further ordered Plaintiffs to post a surety bond to pay the costs and damages sustained by any party found to have been wrongly enjoined or restrained.

After a full hearing, the District Court found as follows.

Prior to April 2010, each Defendant was employed by ING either as an investment advisor, a career agent, a registered representative, or was employed in more than one of these capacities. That During the period of defendants' affiliation with ING, defendants serviced ILIAC's account in New Jersey's Alternative Benefit Program (“ABP”), a defined contribution retirement program available to eligible employees of New Jersey's public institutions on higher education. Until Defendants' affiliation with ING terminated in May 2010, defendants were responsible for servicing the accounts of more than 2,000 ILIAC customers with assets invested in the ABP. In February 2010, with ING's knowledge, several of the defendants set up their own Registered Investment Advisory firm (“GAWM”) and affiliated with an independent broker-dealer as registered representatives. As a result, many of the clients now in issue established investment advisory and/or brokerage accounts with Defendants off of the ING platform.

In May 2010, the affiliation between the defendants and ING was terminated, with an arrangement that would allow ING to maintain relationships with the defendants' clients with respect to these clients' investment in ING's New Jersey ABP. With respect to every other aspect of the clients' portfolios, ING agreed to, and assisted in, facilitating their transfer from ING to the new group's new broker dealer and to GAWM.

Although defendants did not initially sign a restrictive covenant when they first became affiliated with ING, they did sign contracts with ILIAC and/or IFA that contained a non-solicitation clause. The contracts contained a provision providing that defendants “shall not for a period of [one or] two years thereafter, directly or indirectly by or through any partner, associate, agent, employer, employee or firm action on the Agent's behalf: (i) advise, induce or attempt to induce any contract-holder of the Company [ILIAC] to cancel, replace or allow to lapse any annuity contract or security issued by the Company or its affiliates ...” All of the defendants signed covenants substantially similar to this provision.

Upon these facts, the District Court denied the motion, finding that Plaintiffs could not sufficiently demonstrate that there is a likelihood of success on the merits of their claims, specifically holding that “[m]erely being in contact with former clients does not constitute solicitation,”citing Mona Elec. Group, Inc. v. Truland Service Corp., 56 Fed.Appx. 108, 110 (4th Cir.2003); Prudential Securities, Inc. v. Plunkett, 8 F.Supp.2d 514, 520 (E.D.Va.1998); Bayly, Martin & Fay, Inc. v. Pickard, 780 P.2d 1168, 1175 (Okl.1989); and Aetna Bldg. Maintenance Co. v. West, 39 Cal.2d 198, 246 P.2d 11 (1952). The Court further found that there was no question that defendants needed to be in contact with Plaintiffs' clients, as they provide financial advice to these clients on many non-ABP investments unrelated to ING's business interests.

Most notably, the Court rejected Plaintiff’s assertion that defendants were, in fact, soliciting clients related to ING’s business interests, finding that “[the] … only evidence of solicitation Plaintiffs have provided is a single affidavit from an ING employee indicating that, through her communications with clients, it appears that Defendants' have recommended that Plaintiffs' clients switch to a different, competing ABP product. Plaintiffs' declaration summarily refers to client communications, without indicating the number of such communications or providing documentation of such communications.” The District Court also rejected as only “circumstantial” that several client accounts withdrew from ING in a short time frame from defendants’ departure. The Court expressly found that such departures do no “necessarily indicate[] that [the clients] were solicited or encouraged to leave.” To punctuate the finding, the Court provided the hypothetical example that “…these clients may have determined, upon learning of the termination of the [defendant-ING] relationship, that they no longer wanted to remain with ING. A non-soliciting statement from the defendants or ING, then, could have triggered clients to defect, and they are entitled to do so.”

WHAT SHOULD YOUR DISCOVERY MOTIONS LOOK LIKE?

klgallo@discoveryreferee.com (Katherine Gallo) — Fri, 27 Aug 2010 22:14:00 GMT

Discovery motions are the banes of most attorneys’ existence and they are often relegated to the newbie in the office to prepare. Young associates as well as other attorneys struggle on what needs to be in the papers and exactly how to convince the court that they should win.

With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3) why you are entitled to the discovery and sanctions in a succinct fashion.

The practice guides--Weil and Brown, Civil Procedure Before Trial (TRG), CEB California Civil Discovery Practice (2011) 4^th Ed and Matthew Bender Practice Guide: California Civil Discovery-- are good starting points in preparing your motion. There also are numerous seminars on law and motion practice which I encourage you to attend. To get an idea on what a judge likes and dislikes, go to the website of legal newspapers and magazines to see if there has been an interview of your particular judge.

Yet, you still may be unsure as to what the meat and potatoes of the motion should look like. After two years in the law and motion department in Alameda County Superior Court and sixteen years as a private Discovery Referee, I can tell you what I like and you can take whatever pearls and nuggets you find from there.

Meet and Confer Letter:

This is a very important document. It sets the tone of your dispute with opposing counsel so don’t be hostile. Remember this letter is going to be an exhibit to your motion and could make or break your request for sanctions if the court finds that you have not been professional.
List every interrogatory, request and/or deposition question separately and explain why the objections are garbage and why you are entitled to discover the information. You can later take your arguments in this letter and drop it into your Separate Statement of Items in Dispute (pdf)saving you much needed time.

Notice:

The Notice is not wasted space. The notice is to tell the court and opposing party not only the name, date, time and location of the motion, but the “nature of the order sought” as well. So make sure you state the exact remedy you’re seeking in detail. Also, make sure to list the nature and tile of all documents to be attached.
If you are seeking sanctions it must be in the Notice.
List the nature and title of all documents that will be attached (i.e., Memorandum of Points and authorities, declarations, etc.)
Make sure you comply with CRC 3.1110 (pdf).

Points and Authorities

Give a good explanation of the facts of the case. The relevant scope of your discovery depends on these facts. Don’t assume the court remembers your case as they handle anywhere from 75 to 100 cases a week.
Provide a procedural history of the discovery motion in a time line laid out like the one below:
- 6/1/10 Served interrogatories via mail (Exhibit A)
- 6/28/10 Counsel asked for an extension via telephone call (Declaration)
- 7/30/10 Received responses full of objections (Exhibit B)
- 8/5/10 Meet and confer letter sent (Exhibit C)
- 8/25/10 Response to meet and confer letter (Exhibit D)
State your arguments why you are entitled to your discovery. Categorize your arguments (i.e., “Special Interrogatories #1, 7, 15 are asking for information regarding . . .”) Apply the facts and the law accurately. Point out the obligation to respond in good faith. Point out the garbage objections. Point out that the failure to provide proper responses has delayed your case. If the motion requires a Separate Statement of Items in Dispute (pdf)as required by CRC 3.1345 (pdf), then make specific arguments to the specific interrogatories, requests or deposition questions in that document.
State your request for sanctions in detail.
Detail the exact relief you are requesting: (i.e., “Plaintiff to serve verified responses to interrogatories 1, 2, 3, 4 by 11/1/2010 and attorneys’ fees in the amount of $2200 and costs in the amount of $40.”)
Make sure you comply with CRC 3.1113 (pdf).

Separate Statement of Items in Dispute

This is the most important document of your motion and the first document that a court will rely on. Do your real argument here. Be detailed in the law as to why the objections are garbage. Apply the facts of your case to show why the information you are seeking is discoverable.
Make sure you comply with CRC 3.1345 (pdf)

Declaration:

Authenticate all your exhibits.
Describe your meet and confer with opposing counsel.
If there is a request for sanctions, state your hourly rate. Outline in detail the time spent on the motion and any future time you anticipate spending. Calculate the attorneys’ fees and add the costs.

Proposed Order:

Have the order state which interrogatory, request and/or deposition question have been granted and the date line as to when that verified response is to be served or the deposition needs to take place by (i.e., “Verified answers to Special Interrogatories, Set #1, #1, 2, 5, 7, 13 are to be served no later than ____.”). This allows the court to strike the numbered interrogatory, request and/or deposition question that has been denied and to put in their own compliance date.
Do the same thing for sanctions. List the award of attorneys’ fees and the award for costs. State who the award is against by name.

Other Helpful Hints:

Do not go over the 15 page limit without obtaining a court order. CRC 3.1113 (pdf)(e)
Do not use smaller fonts. CRC 2.104 (pdf) and CRC 2.105 (pdf)
Though CRC 2.08 (pdf) allows for 1.5 line spacing, double space is preferred.
Understand the procedural rules for Judicial Notice and their effect on your motion. See Evidence Ev. C §451 (pdf), Ev. C §452 (pdf), CRC 3.1113 (pdf)(l).
You must do a table of contents and table of authorities if the motion is 10 pages or over. CRC 3.1113 (pdf)(f) However, many judges appreciate a table of contents in any motion.
If you are bringing a motion to compel answers to special interrogatories or requests for admissions that are over the initial 35 allowed, then make sure and attach your “Declaration of Necessity.”
If a department wants courtesy copies, make sure you get a full set to the department in a timely fashion.
Most importantly PROTECT YOUR REPUTATION. Be accurate in your citation of the facts as well as the law. Do not overreach. Do not try and be clever. Do not show disrespect to opposing counsel or their client. The research staff as well as the judges will remember you.

Next: GAME ON--Opposing the Motion to Compel.

Eleventh Circuit Finds 43-City Non-Compete Enforceable Under Georgia Law

Thu, 26 Aug 2010 15:02:11 GMT

On August 19, 2010, the Eleventh Circuit Court of Appeals reversed a district court's denial of a motion for injunctive relief regarding enforcement of an employer's non-compete and non-solicitation provisions. Mohr v. Bank of New York Mellon Corp., No. 10-11890, 2010 WL 3273059 (11th Cir. Aug. 19, 2010). Applying Georgia law, the Court found the non-compete agreement to be enforceable, despite the fact that it forbid two employees from working within 50 miles of 27 cities in Georgia and South Carolina and 16 cities in 12 other states. The agreement was signed as part of the sale of a business, a situation that is afforded the most latitude under Georgia restrictive covenant law.

The Court supported its decision by citing mostly other Georgia decisions that involved a single city. The Court did not consider whether the employees had contacts within each of the 43 cities, but rather focused on the Bank's business territory. Because the agreement was entered into as part of the sale of a business, the Court only considered the employer's contacts and not the employees'.

The Court held that a preliminary injunction should have been issued to enforce the non-compete because, without the injunction, the Bank would be deprived of the benefit of its bargain in buying the business.

The Court's decision indicates a new willingness to enforce a geographically expansive non-compete under Georgia law. The effect of this decision on future litigation is unknown, but will certainly be interesting to watch.

Western District of New York upholds Non-Compete and Grants TRO

Tue, 24 Aug 2010 19:03:50 GMT

Plaintiff IDG USA, LLC (“IDG”), a Georgia company with its principal place of business in North Carolina, commenced an action against a former employee, Kevin J. Schupp (“Schupp”), a New York resident, alleging breaches of a Non-Compete Agreement, breach of a Confidentiality Agreement, unfair competition, and theft of trade secrets.

In a 12 page decision, IDG USA, LLC v. Schupp, Slip Copy, 2010 WL 3260046 (W.D.N.Y. Aug.18, 2010), the District Court granted IDG's Motion for a temporary restraining order and preliminary injunction, enjoining Schupp from: (1) working for any competitor of IDG within 50 miles of IDG's Amherst, New York office, (2) soliciting orders from IDG’s identified “major” customers with whom Schupp had had contact , and (3) disclosing or using confidential information and/or trade secrets of IDG. The court also denied Schupp’s Rule 12(c) cross-motion to dismiss the Complaint, expressly finding that IDG’s allegations that Schupp used his knowledge of IDG's major, revenue-generating customers and its pricing policies for the benefit of his new employer, and disclosed information regarding IDG’s Amherst Office's control over pricing issues to one of those customers were sufficient to render the causes of action plausible for purposes of a Rule 12(c) analysis.

The Complaint alleged that IDG is a national distributor and supplier of industrial materials, has a Northeast Division, with a principal office in York, Pennsylvania, an a regional office in Amherst, New York, which is responsible for the company's customer base in upstate New York and western Pennsylvania. It was further alleged that in 1998, IDG acquired Schupp’s previous employer, AFL, and retained most of AFL's employees including Schupp, whom immediately began working out of IDG's Amherst, New York office as a Sales Associate. IDG claimed that Schupp serviced many of IDG's major revenue generating clients, most, if not all of whom were assigned to Schupp by IDG, which had preexisting relationships with the clients.

The operative agreements before the District Court were a Non-Compete Agreement (the “NCA”) and a Confidentiality Agreement, entered into between IDG and Schupp. The Court found that Schupp received “additional compensation in the amount of Three Thousand Dollars ($3,000) in consideration for his execution, delivery, and performance of th[e] [NCA] .” Notably, the Court found that the NCA restrained Schupp, for the period of one year from the date of the termination of his employment with IDG, from accepting employment with any competitor of IDG, for work similar to that he performed at IDG, within a fifty (50) mile radius of any office to which he was assigned during the twelve months prior to the termination.

The Complaint went on to allege that on January 14, 2010, Schupp voluntarily terminated his employment without advance notice, and that within days after his resignation he commenced employment as a sales representative with Abrasive-Tool Corp. (“Abrasive”), a company that sells many of the same products as IDG and offers customers similar services. It was shown that Schupp worked out of Abrasive's Buffalo office, which is within ten miles of IDG's Buffalo office. The Court found that Schupp had solicited orders on behalf of Abrasive from long-standing, major revenue producing clients he was assigned to service and entertain during his employment with IDG, and further disclosed to an IDG customer confidential information regarding its Amherst Office's control over pricing issues.

Of primary interest, the District Court found that IDG had demonstrated the threat of irreparable harm by Schupp’s conduct by reason of: (a) Schupp’s contacting three “Major Customers” of the company” (identified by the Court as customers whose purchases from IDG exceeded $25,000 in the previous twelve months) and quoting prices for Abrasive's goods and services to one of these Major Customers; (b) three Major Customers requesting pricing information and quotes from IDG, something they had not required in the previous ten years; (c) another Major Customer informing IDG that it would no longer do business with IDG; and (d) the fact that the month following Schupp's resignation from IDG, IDG experienced a reduction in its sales to ten of the thirteen Major Customers which had been serviced by Schupp.

Specifically, the Court held:

Here, IDG has sufficiently demonstrated that Schupp violated paragraph 7(a) of the NCA when he commenced work at Abrasive, as a sales associate in its Buffalo office, immediately after resigning from IDG. Likewise, IDG has sufficiently demonstrated that Schupp immediately began soliciting orders on Abrasive's behalf from IDG's Major Customers in violation of the NCA's paragraph 7(b). Schupp does not dispute IDG's attestations in this regard. In addition, the NCA expressly provides that “if Schupp is permitted, after cessation of his employment with [IDG], to trade upon th[e] training and th[e] confidential information which he had received by virtue of his position of trust and confidence with [IDG] ... irreparable damages will result to [IDG],” and that “any breach of the [NCA's] covenants ... would not be readily or appropriately compensable in damages” Courts have found that such language in an employment agreement “ ‘might arguably be viewed as an admission by [the former employee] that plaintiff will suffer irreparable harm were he to breach the contract's non-compete agreement.’ ” On the evidence presented at this juncture, including the NCA's provisions, Schupp's conclusory assertion that any damage to IDG can be rectified by a monetary award is rejected.

Finally, the Court rejected Schupp’s argument that IDG had “materially breached” the NCA by reducing his annual salary from that stated in the NCA, prior to his resignation. IDG argued that because the salary reduction was not a “material breach,” Schupp was not excused from performance of his obligations and, in any event, Schupp waived any breach when he continued to work for IDG after his salary was modified. The District Court found IDG's contentions that it did not materially breach the agreement and that Schupp acquiesced to a modification of the NCA consistent with New York decisional authority involving employment agreements similar to the NCA, citing: In re Footstar, Inc., 04-22350, 2007 Bankr.LEXIS 2302, at *12-13 (S.D.N.Y. July 6, 2007); Hanlon v. MacFadden Publications, 302 N.Y. 502, 505, 99 N.E.2d 546 (1951)); Bottini v. Lewis & Judge Co., 211 A.D.2d 1006, 1007-1008, 621 N.Y.S.2d 753 (3d Dep't 1995); Dwyer v. Burlington Broadcasters Inc., 295 A.D.2d 745, 745-746, 744 N.Y.S.2d 55 (3d Dep't 2002); Gebhardt v. Time Warner Entm't-Advance/Newhouse, 284 A.D.2d 978, 978-9, 726 N.Y.S.2d 534 (4th Dep't 2001); Bottini, 211 A.D.2d at 1007-1008, 621 N.Y.S.2d 753; and Mosely v. Island Computer Prods., 2006 U.S. Dist. LEXIS 6437, 2006 WL 318815, at *2-4 (E.D.N.Y. Feb.9, 2006).

Compliance Officer Found Liable for Failing to Preserve Data

Tue, 24 Aug 2010 18:09:47 GMT

A recent ruling of the Securities and Exchange Commission (“SEC”) should serve as a yet another reminder of the importance of adequately preserving electronically stored data.

On July 2, 2010, the SEC ruled that vFinance Investments Inc., a Florida based broker dealer, violated securities laws by failing to preserve and produce electronic communications requested by the SEC as required by Section 17(a) of the Securities Exchange Act of 1934. In re vFinance Investments Inc., SEC, Admin. Proc. File No. 3-12918, 7/2/10.

In addition, as another example of the growing trend of blaming corporate executives for e-discovery failures, the SEC held that the firm’s former chief compliance officer, Richard Campanella, was liable for willfully aiding and abetting vFinance’s violations. The SEC sustained an administrative law judge’s decision censuring the Campanella and assessing penalties of $100,000 and $30,000 against the firm and Campanella, respectively. The SEC also barred Campanella from the industry for two years.

The penalties stemmed from vFinance’s failure to preserve and produce electronic communications of a branch manager at one of the firm’s offices. In July of 2005, the Enforcement Division of the SEC contacted Campanella to alert him regarding a forthcoming document request regarding Lexington Resources, Inc. -- the branch manager acted as a market maker for its stock. Although it was obvious to Campanella that the branch manager would not produce the requested documents, he waited almost six months after the division’s request to threaten to fire the branch manager for not doing so. In spite of the manager’s noncompliance, Campanella never followed through on the termination threat, giving the branch manager time to destroy the documents sought by the Enforcement Division. In addition, while Campanella was aware that the branch manager was sending and receiving email relating to Lexington Resources from a personal email account, he never implemented a system to preserve such email. Because Campanella failed to act when he had a duty to do so, the SEC found him liable for aiding and abetting vFinance’s violations.

Campanella was found liable for aiding and abetting vFinance’s violations even though he did not have actual knowledge that his failure to act constituted a violation. At oral argument before the SEC, Campanella’s counsel argued that in order to ensure certainty in the law, the standard for aiding and abetting in SEC administrative actions should be the same as in federal district courts, where actual knowledge is required. The SEC disagreed, holding that “recklessness is sufficient to establish aiding and abetting liability, and here we find Campanella’s conduct was variously knowing and extremely reckless.”

There are two important implications here: (1) corporate executives are not immune from e-discovery sanctions by virtue of being a few corporate steps removed from the process; and (2) the standard for liability in SEC actions is lower than in district courts -- recklessness rather than actual knowledge.

Bob Bailey the original George in 'Let George Do It"

Sat, 21 Aug 2010 22:07:04 GMT

Mary Mack: I wanted to throw this out to you, Ralph and Brett, about waivers of privilege or trade secret by making things readily available on social medias. How is social media affecting those two areas? Waiver By Unauthorized Disclosures in Social Media Ralph Losey: You threw that question at me privately a week ago [...]

SANCTIONS--DENIED!!!

klgallo@discoveryreferee.com (Katherine Gallo) — Fri, 20 Aug 2010 20:23:06 GMT

When I started this blog I asked fellow attorneys what issues they would like me to address. I received this response from a lawyer in San Francisco:

Key problem – judges that won't crack down on parties that lodge bogus objections and don't answer interrogs, and object to discovery demands that are straight forward. Amount of sanctions awarded is usually pitiful.

I can easily respond to this complaint by saying “Judges want to be liked,” or “Maybe the judge was intimidated by the big law firm” or “The judge is trying to establish a working relationship with the parties and awarding sanctions makes the losing party more hostile” or “The judge may have seen fault on both sides of the table.” However, the bottom line is I don’t know why your judge didn’t give you sanctions and neither do you, unless you argued the issue at the hearing.

In order to overcome the reluctance of the judge, you need to be proactive in your moving papers and your arguments at the hearing regarding your request for sanctions. Don’t be timid on asserting your position on this. It is just as important as your other arguments. Filing motions and the imposition of sanctions curbs discovery abuse and the 1986 Discovery Act recognizes this. Thus you need to bring the motion and start establishing a pattern of opposing counsel’s discovery abuse and create a record of an imposition of sanctions. Moreover, remember that judges are reluctant to impose a terminating sanction unless a history of lesser sanctions have first been imposed or prior discovery orders have been violated. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶ 8:1215 et seq.

When seeking an order to recover sanctions, C.C.P §2023.040 (pdf) requires your discovery motion to contain the following:

Notice --The notice of motion must expressly state that you are seeking [monetary, issue, evidence or terminating] sanctions as well as the identity of the person, party or attorney against whom sanctions are being sought.

Points and Authorities–Your moving papers must state the facts of the noncompliance, the authority as to why it is discoverable and the authority for the award of sanctions. Don’t make the argument requesting sanctions in your P’s and A’s an afterthought. Spend time on it. List all the garbage objections to very basic questions and the law’s supporting your interrogatory or request. For example: “The identity and location of witnesses are not protected by attorney work product or the right of privacy. C.C.P. §2017.010 (pdf) clearly states that the identity and location of witnesses are discoverable.” Detail all the stonewalling, hostility and lack of good faith efforts during the meet and confer process. Make it clear that your train has not left the station and you are losing precious trial prep time. Make sure you site the authority for the sanctions you are requesting.

Declaration--Declarations need to state (1) facts of the noncompliance and discovery abuse in which the declaring party has personal knowledge (If necessary use multiple declarations) (2) the meet and confer process, (3) time you have spent and are going to spend on each aspect of the motion, (4) your hourly rate and (5) the calculations for the sanctions. Again, do it in detail!! Hint: Do not cut your hours. You need to let the judge know how much money this discovery dispute is costing your client.

In your moving papers point out to the court:

C.C.P. §2023.030 (pdf)(a) states that “If a monetary sanction is authorized by any provision of this title (and almost all of them are), the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” [Emphasis added]

The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented. California Discovery Citations (TRG 2010) ¶1:6 citing Parker v. Wolters Kauwer U.S., Inc. (2007) 149 CA4th 285 (pdf) at 301.

Discovery sanctions are not a windfall. They are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1213 citing Caryl Richards, Inc. v. Superior Court (1961) CA2d 300 at 303.

Discovery sanctions are not reported to the State Bar. See Bus. & Prof. Code. §6068(o)(3) (pdf).

The “trial court is not required to make findings at all” in granting any discovery sanctions, including terminating sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1241.5 citing Ghanooni v. Super Shuttle of Los Angeles (1993) 20 CA 4th 256 (pdf) at 261.

At the hearing:

Be prepared to argue for sanctions. Do not be afraid to make a record. If you think that the judge is still reluctant to give you sanctions, then suggest that the sanctions be stayed to be lifted by the court at a later date (i.e., when the party complies with the order or, the one I like to use, by the trial judge.). This is important, because you need to establish a history of abuse. Past conduct that has already been considered by the court cannot be the basis for additional sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1209a citing Andrus v. Estrada (1995) 39 CA4th 1030 (pdf) at 1043.

The court needs to take discovery motions seriously. They impact a case just as much as and in many cases more than demurrers and motions for summary judgment. However, it is your job to educate the judge as to why you are entitled to sanctions. Good luck!!

Let us know if you are successful in your next quest for discovery sanctions.

WI Supreme Court Continues to Debate E-Discovery Amendments

Thu, 19 Aug 2010 16:33:57 GMT

On July 6, 2010, the Wisconsin Supreme Court set the date for the next and final hearing regarding amendments to the state rules of civil procedure that relate to the discovery of electronically stored information. The hearing will take place on September 30, 2010 at 9:30 a.m. at the State Capitol in Madison. The Court will accept written comments from the public until August 31, 2010.

By a 4-3 vote, the Court has already adopted amendments to Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12 and 805.07 to address e-discovery. However, the amendments are subject to revision following public comment and the hearing on September 30, 2010. The amendments will become effective January 1, 2011.

As the 4-3 voting split indicates, the Court is not of one mind regarding the amendments. While all of the Justices agree that the rules should be amended to address e-discovery, there are three key issues regarding which the Court remains divided:

(1) whether the rules should require parties to meet and confer on e-discovery at the outset;

(2) whether the rules should include a “claw-back” provision; and

(3) whether the rules should expressly provide for cost-shifting.

Currently, the amendments include a mandatory meet and confer provision regarding e-discovery and do not include claw back or cost shifting provisions. Under the circumstances, and because the Court is divided, it looks as though the public has a meaningful opportunity not only to be heard, but to affect the ultimate outcome.

In large part, the disagreement between the Justices is based on their varied understandings regarding what cases the rules are most likely to apply to, because not every case involves significant e-discovery. The dichotomy is as follows:

Justices who focus on smaller, less complicated disputes tend to oppose mandatory e-discovery conferences as well as express “claw back” and cost-shifting procedures.

Justices who focus on complex commercial disputes, which frequently involve extremely costly and extensive e-discovery tend to be in favor of mandatory e-discovery conferences, claw back and cost-shifting provisions.

Chief Justice Abrahamson has appealed to the public to focus on these particular issues when submitting written comments. As a result, it is worth considering each side of the debate.

Mandatory early e-discovery conferences: Those in favor of an early, mandatory e-discovery conference argue that if the parties confer before discovery, they can reduce the ultimate cost of discovery and head off future disputes before they develop. Those opposed note that the conference is a waste of time in the majority of cases, which are typically small, less complicated disputes in which neither party will request or receive much in the way of e-discovery. Those opposed also note that there is no rule that would prevent parties in complex commercial disputes from meeting and conferring independently in the absence of a rule requiring the parties to meet. Current vote: five in favor of this rule, two against (5-2).

Claw back provisions: Those in favor of an express claw back provision note that in cases involving voluminous e-discovery productions, it is extremely expensive and time-consuming for the producing party to review every single document and file prior to production to determine if it contains privileged information. They argue that a claw back provision is necessary to alleviate the producing parties burden by allowing a party who inadvertently produces privileged information to demand its return and prohibit the receiving party from using the privileged information. Those opposed note that an effective claw back rule is both procedural and evidentiary to the extent that it must address whether the privileged information remains privileged despite having been produced. They argue that the claw back rule is best addressed at a later time, when amendments to the rules of evidence can also be considered to avoid inconsistencies between the procedural and evidentiary provisions. Current vote: three in favor of this rule, four against (3-4).

Cost-shifting: Finally, those in favor of a provision authorizing cost shifting argue that the court should be expressly empowered to make a requesting party pay for the unduly burdensome discovery it seeks. Those opposed only disagree to the extent that they argue that the current rules of civil procedure already authorize the court to require a requesting party to pay for unduly burdensome discovery. They cite Wisconsin case law in support of their position, and note that federal cases provide persuasive authority regarding the circumstances under which cost shifting is appropriate. Current vote: three in favor of this rule, four against (3-4).

Whether the current distribution of votes will change likely depends on the volume and nature of written comments the Court receives before August 31, 2010, as well as the persuasiveness of any argument the Court hears at the public hearing on September 30, 2010.

Let the arguments begin . . .

"Because Something Must Be Done": The Dangers of Trying to Save E-Discovery Costs by Treating Data Like Paper

Mon, 16 Aug 2010 15:42:15 GMT

This article was published by Wendy Akbar and Bill Hamilton.

Remember the days before the computer, the typewriter, the printing press, and even carbon paper? The days when, to copy a book, one needed to sit down and re-write it by hand? Every letter of every word of every sentence-dappled paragraph, had to be painstakingly copied one by one. With all the technology available today, no publisher would ever consider copying a book by hand rather than re-printing a copy saved on the computer. To do so would be a waste of time -- a return to the Dark Ages.

When it comes to e-discovery, unfortunately, the Dark Ages still occasionally guest stars in modern-day electronically stored information (ESI) retrieval and production. The dangers of being such an e-discovery ostrich were most recently highlighted in Multiven, Inc. v. Cisco Systems, 2010 WL 2813618 (N.D. Cal. July 9, 2010). Plaintiff Multiven, along with the two counterclaim defendants, originally elected to undertake a manual review of the full set of voluminous ESI it possessed prior to production. Sound conscientious? Not exactly. It means they turned the clock back about 15 years (in e-discovery time, akin to 150 years) and:

(1) Refused to use an outside vendor to help organize ESI information;
(2) Refused to utilize any search terms to narrow the "giant mass" of data to be reviewed;
(3) Instead used approximately five attorneys for six months to a year, to manually review every unfiltered page of "that giant mass" for responsive documents.

Why? They wanted to save on cost, particularly the expense of hiring an outside vendor to help whittle down potentially responsive information. Perhaps they adopted a manual review for other strategic reasons. (Never mind, of course, the hourly billing rate of five attorneys doing eight hours of document review five days a week for over six months, which more likely than not was more expensive than hiring a vendor to narrow the "giant mass" to a more reasonable review load for the attorneys). The end result, however, was not exactly what was intended . . .

What sounded like a Great Idea to Multiven ultimately backfired. The process bogged everyone down, taking months and months. Finally, the district court became distressed when it became apparent that the delays associated with the manual review of all electronic files was causing the case to extend well beyond the boundaries of the scheduling order:

[I]t has become clear to this Court that [the plaintiff and counterdefendants] cannot complete their review and production of documents with enough time before the close of discovery to allow Cisco time to actually do anything with them. [They] so far have insisted on a review process that guarantees that they will not finish this extensive project in any reasonable amount of time.

Id. at *2. The trial court thus adopted the Report and Recommendation of Magistrate Judge Lloyd, required Multiven to utilize a vendor to assist in e-discovery, and appointed a Special Master to manage certain e-discovery disputes that potentially threatened to derail the litigation. In short, the Court concluded (id. (emphasis added)):

Because something must be done, this Court recommends that the District Court order the parties to promptly retain a third party vendor to assist with this increasingly perilous situation.

So first, Multiven was not only stuck having to hire the very vendor it had hoped to avoid, but on top of it had to pay its attorneys the hundreds of thousands it cost to conduct the months of document review that were done to avoid hiring a vendor in the first place. Instead of saving money, their gamble multiplied the cost of e-discovery in the case. Second, by this point, even Multiven was so fed up with the document review process that it was amenable to hiring a vendor before the court order even issued. Sure, part of it was because the defendant, Cisco, had offered to pay for part of the vendor cost, but Multiven had finally learned that it was in over it head, and that in trying to save money, it had wound up spending significant more cost on e-discovery.

While the Court's intervention was necessary to get the case back on track, one wonders what possessed the Multiven and its counsel to undertake a prolonged manual review, especially when Cisco appeared to be urging Multiven to employ modern technology all along. Delay was only one by-product of Multiven's decision. A second by-product was the likely extraordinary costs such manual reviews entail. The most substantial e-discovery costs arise from the attorney review process, regardless of whether that review is done internally by firm lawyers or outsourced to vendors in the United States or abroad.

One might think that a manual review is the "gold standard" and the most thorough, comprehensive way of searching. In other words, while you can place fistfuls of hay at a time into a hay-sorter to separate out those few stray needles, there's still a margin of error. You're more likely to find them if you use the time-consuming method of picking up one strand at a time and eyeballing it. Right? Oddly, no. In truth, the so-called gold standard of manual review is mythological, and the human eye can miss a lot more than a well-crafted keyword search protocol can capture. A widely-regarded study, Blair et al., Wittgenstein, 'Language and Information: Back to the Rough Ground!' 302 (2006), found that manual review teams only found 20% of the relevant documents! Ralph Losey and Jason Baron have also demonstrated that adding conceptual search tools to key-word searching further improves results and reduces cost. So Multiven's Dark Ages strategy not only multiplied costs and delayed the proceedings, but likely would have missed most of the relevant documents -- leading to potential sanctions and do-overs. Some cost-saving strategy!

In truth, there are very limited circumstances in which a case or production might require every e-document to be reviewed: the all-consuming, unfiltered, manual document review is dead, and for good reason. Today's staggering volume of ESI makes such a manual review both cost and time prohibitive. Utilizing the broad array of tools to cull down, de-duplicate and search data volumes is generally accepted and is even becoming mandated practice, as Multiven learned too late. While all searches are not created equal, the Text REtrieval Conference (TREC) Project -- co-sponsored by the National Institute of Standards and Technology (NIST) and U.S. Department of Defense-- has demonstrated a better search results by machines than plowing through data manually. While a search methodology utilized by a party has to be defensible, standards are slowly emerging, as documented by The Sedona Conference in its May 2009 Commentary on Achieving Quality in the E-Discovery Process: Best Practices for Document Retention and Production. There is no reason to be stuck in the Dark Ages of linear, manual review.

"Because Something Must Be Done": When Companies Go Overboard Trying to Save on E-Discovery Costs

Mon, 16 Aug 2010 15:42:15 GMT

This article was published by Wendy Akbar and Bill Hamilton.

Because something must be done, this Court recommends that the District Court order the parties to promptly retain a third party vendor to assist with this increasingly perilous situation.

cave man lawyer from Phil Hartman and SNL with his most famous line. Does e-discovery frighten and confuse most lawyers today?

Sun, 15 Aug 2010 23:43:17 GMT

Mary Mack: Thanks Rebecca and I want to thank Ralph and Brett for an encore discussion. Usually when we do case law updates we fit them all into one session. But so much has been happening and our listeners gave us some wonderful feedback about the last time we were with you two gentlemen. So [...]

When an Apology is a Discovery Response

klgallo@discoveryreferee.com (Katherine Gallo) — Wed, 11 Aug 2010 18:00:00 GMT

Nine years ago, in the middle of a Deposition, defense counsel called plaintiff counsel a "Bitch." Plaintiff counsel immediately filed a motion for a Discovery Referee and I was appointed. The court ordered that I sit in on all the depositions and attend the site inspection. All communication including the scheduling of discovery was to be done through me.

When I look back on this case, I realize that the moment defense counsel used the word "Bitch" it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

I always wondered what more I could have done as their Discovery Referee, but then I came to realize that I had done what the Court had sent me in to do–end the open hostility and get the discovery completed by the trial date. The professional relationship between counsel was beyond repair before I got there. So the real question is, "was there anything counsel could have done?" Although defense counsel regretted his outburst, there was never an apology. Instead, this incident entrenched counsel into becoming hostile combatants much to the eventual detriment of defense counsel's clients.

The morale of the story here is "you gotta know when to hold’em and know when to fold’em." In other words, is your discovery battle worth it in the long run? In this case, a simple, sincere apology could have put the case back on track, possibly leading to settlement and I may never have been appointed to wear the black and white striped shirt.

ascendance from 2010 america's got talent

Sun, 08 Aug 2010 19:24:47 GMT

I sat on a three-lawyer panel last month to judge the contestants for America’s greatest e-discovery cases of 2010. Yes, we’ve turned the tables and are judging the judges and their opinions. (Actually, this was a FIOS interview devoted to current case-law, but I’ve been watching too many TV talent shows.) Joining me on the [...]

Update on Georgia Restrictive Covenant Cases

Thu, 05 Aug 2010 20:51:50 GMT

The Georgia Court of Appeals issued two decisions in July addressing restrictive covenants in Georgia. In both instances, the Court of Appeals upheld trial court findings that the covenants were unenforceable under existing Georgia law.

In Peachtree Fayette Women’s Specialists, LLC, v. Turner, the Court of Appeals agreed with Superior Court Judge Tommy Hankinson of the Griffin Judicial Circuit that a non-compete provision is unenforceable if it covers any territory in which the employee did not work. The non-compete provision in question restricted Dr. Heather Turner from practicing at a number of hospitals, including Piedmont Hospital in Atlanta. The record reflected that Dr. Turner never worked at Piedmont Hospital and that the physicians at Peachtree Fayette Women’s Specialists had resigned their staff privileges there. PFWS argued that because its principal, Dr. William Cook, had worked previously at Piedmont and established it as a referral source, it had a legitimate interest in preventing competition there. The Court of Appeals rejected this argument, noting that Dr. Turner did not work at Piedmont and therefore that PFWS did not have an interest in preventing her from working there. Because current Georgia law does not permit modification of restrictive covenants in employment agreements, the entire non-compete was invalidated, including the provisions that did protect PFWS’s legitimate interests.

In Fine v. Communication Trends Inc., the Court of Appeals agreed with Fulton County Superior Court Judge Melvin Westmoreland that a customer non-solicitation provision was unenforceable because it prevented contact with customers with an eye to providing competitive services. The case was contested between Communications Trends, a business engaged in media planning, purchasing, and cable network programming, on the one hand and its former employee Lynette Fine, on the other. Fine’s new employer, Allscope Media, was also a party. The non-solicitation covenant at issue stated as follows:

4. Nonsolicitation of Clients. The Employee hereby also agrees and covenants with [CTI] that throughout the period of his employment and for a period of two (2) years immediately following cessation of Employee's employment with [CTI], the Employee shall not solicit advertising media placement business similar to [CTI] on behalf of any persons or entity other than [CTI], either directly or indirectly, whether as a shareholder, partner, joint venturer, consultant, employee, officer, agent or otherwise, from any person or entity (or otherwise contact, call upon, communicate with or attempt to communicate with any such person or entity with a view to providing advertising media placement services competitive or potentially competitive with [CTI][.] )

(Emphasis added.) The trial court found and the Court of Appeals agreed that the highlighted portion rendered the entire provision unenforceable because it would prevent Fine from communicating with customers that seek her out. Georgia law permits employers from preventing competitive solicitation by former employees, but it forbids covenants that purport to prohibit acceptance of business. The Court of Appeals found that CTI’s covenant ran afoul of this rule.

(As an aside, the trial court’s finding that the covenant was unenforceable prevented the resolution of a very interesting factual question. The record reflected that Fine attended a large cable industry dinner after joining Allscope and provided her new Allscope business cards to executives affiliated with CTI’s clients. Fine testified that she informed CTI’s clients that she was not allowed to solicit them and that they would have to provide a statement in writing that she had not done so in order to continue doing business with her at Allscope. Fine further testified that if CTI’s clients contacted her and sent emails stating that they had not been solicited, she accepted their business. Fine’s activity falls in the gray area of solicitation and would have presented a difficult question for a fact-finder.)

The Court of Appeals also found that Fine did not violate the non-disclosure of confidential information provision of her agreement with CTI when she provided revenue projections to Allscope. The fact that the revenue information was not client-specific proved to be decisive.

The Court of Appeals did, however, reverse the trial court’s decision to grant Fine’s motion for summary judgment on a duty of loyalty claim brought by CTI. CTI alleged that Fine breached her duty of loyalty by: (1) making detailed disclosures to Allscope regarding the revenues generated by various CTI clients; (2) failing to provide adequate notice prior to her resignation; and (3) deleting client contact information and destroying CTI’s files that had been in her possession. The Court of Appeals found that the former two allegations were insufficient to state a claim for breach of the duty of loyalty, but the final allegation was sufficient.

You've Blown the Dreaded Draconian 45-Day Rule-Now What Do You Do?

klgallo@discoveryreferee.com (Katherine Gallo) — Thu, 05 Aug 2010 18:00:00 GMT

Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c) Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 (pdf) at 685 (Pre-1986 Discovery Act) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403 (pdf), 1410.

Weil and Brown Civil Procedure Before Trial (TRG 2009) §8:1150 suggests that you may be able to obtain relief under C.C.P. Section 473(b) which allows for relief generally from “any judgement, order or other proceeding” on a showing of “mistake, inadvertence, surprise or excusable neglect” citing Zellerino v. Brown (1991) 235 Cal. App. 3d 1097 (pdf). In that case the Court of Appeal stated that relief can be obtained under CCP § 473(b) when the Discovery Act does not provide a remedy. However, Zellerino involved experts and none of the cases citing Zellerino involved the 45-Day Rule. To date, I have never heard anyone being successful and after 20 years of the Discovery Act, I seriously doubt that any court would give relief under CCP § 473.

So now what do you do? The answer is another discovery device. In Carter v. Superior Court (1990) 218 CA3d 994 (pdf) the court held even though a party had missed the deadline for compelling inspection of documents under C.C.P. Section 2031 it did not bar him from requesting the same documents be brought to a deposition. Therefore, you can serve any of the following discovery devices and pretty much get the same result:

Interrogatories–Use requests for admissions coupled with Form Interrogatory 17.1 and request for documents.
Request for Production of Documents –Use deposition notices with a document requests, corporate deposition notices with a document request and/or third party subpoena for deposition with documents.
Request for Admissions –use special interrogatories or deposition notices

One thing you can’t do is reserve the same interrogatories, requests for documents and/or requests for admissions and “reset the clock.” Sexton at 1408 citing Professional Colleges, Magna Institute, Inc. v. Sup. Ct. (1989) 207 CA 3d 490.

Your other alternative is let the objections stand. Then at trial serve a motion in limine excluding all evidence that was not produced in discovery. If a party does not cough up the info during discovery they can’t use it at trial.

These are a few suggestions on the dreaded draconian 45-Day Rule. Does anyone have any more?

18 Morris James Attorneys Selected by their Peers for Inclusion in The Best Lawyers in America® 2011

Wed, 04 Aug 2010 20:42:23 GMT

18 Morris James attorneys in 13 practice areas were recently selected by their peers for inclusion in The Best Lawyers in America® 2011. New to the list are Mark D. Olson and Bruce W. Tigani from the firm’s Tax, Estates and Business practice. The firm’s Real Estate Practice Group Chair, Richard Beck, has been named in this highly regarded publication since its inception in 1983.

The Best Lawyers in America® 2011 has become universally regarded as the definitive guide to legal excellence. Their rigorous research is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. The Morris James attorneys listed in the 2011 edition and the areas of law in which they are recognized include:

COMMERCIAL LITIGATION
• P. Clarkson Collins, Jr. (2005)
• Lewis H. Lazarus (2006)
• Edward M. McNally (2005)
• James W. Semple (2009)

CORPORATE LAW
• P. Clarkson Collins, Jr. (2005)
• Lewis H. Lazarus (2006)
• Edward M. McNally (2005)

ELDER LAW
• Mary M. Culley (2008)

EDUCATION LAW
• David H. Williams (2007)

FAMILY LAW
• Gretchen S. Knight (2007)

INFORMATION TECHNOLOGY LAW
• Richard K. Herrmann (2003)

INSURANCE LAW
• Mary B. Matterer (2009)

LABOR AND EMPLOYMENT LAW
• David H. Williams (2007)

PERSONAL INJURY LITIGATION
• Keith E. Donovan (2009)
• Dennis D. Ferri (2007)
• Richard Galperin (2005)
• Francis J. Jones, Jr. (2008)

REAL ESTATE LAW
• Richard P. Beck (1983)
• John Bloxom IV (2010)

TAX LAW
• Daniel P. McCollom (2007)
• Mark D. Olson (2011) *
• Bruce W. Tigani (2011) *

TECHNOLOGY LAW
• Richard K. Herrmann (2003)

TRUSTS AND ESTATES
• Mary M. Culley (2008)

* Indicates First Year on List

Benchmark Litigation 2011 Names 5 Morris James Partners Among Top "Local Litigation Stars"

Wed, 04 Aug 2010 14:46:11 GMT

Morris James LLP is pleased to announce that five of its partners have been recognized among the top Delaware litigation attorneys in Benchmark Litigation 2011 - The Guide to America's Leading Litigation Firms and Attorneys.

Morris James’ Litigation Stars

Rich Galperin
Clark Collins
Richard Herrmann
Lewis Lazarus
Edward McNally

Benchmark Litigation focuses exclusively on litigation lawyers and firms in the United States. Recommendations are based on extensive face-to-face and telephone interviews with the nation’s leading private practice lawyers and in-house counsel.

Recent Articles in Electronic Discovery from LexMonitor