Your Client is Hacked and Personal Information is Leaked Online – Now What?

By Hayes Hunt and Jillian Thornton

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You are general counsel to a company, and your CEO steps into your office, clutching his iPhone in one hand and wiping sweat from his brow with the other, and tells you that a compromising photograph of him was stolen from his phone and posted online. You start thinking not if, but when, shareholders will discover this embarrassment, how much it will cost the company and what legal action to take.

Unfortunately, such incidents are becoming more common in this digital age, a fact highlighted by the recent leak of stolen nude celebrity photographs. A few weeks ago, hackers uploaded nude photos of several dozen female celebrities to the Internet. Allegedly, the leak was made possible by software designed for use by law enforcement to pull data from iPhones in conjunction with a tool that can crack Apple iCloud passwords. With this method, hackers can impersonate a victim’s iPhone and download its full backup of data. That means a lot of personal—and possibly embarrassing or even incriminating—information can be spread across the globe via the Internet. While hackers employing this type of computer crime frequently seem to target popular celebrities, hackers have and will continue to victimize “normal” people as well.

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Due to the pace at which technology advances, the deliberate cadence of the law does not match technology’s pace. However, some legal options are available to those whose personal data has been stolen by hackers and then published on the Internet.

Without a doubt, the most important thing to remember when facing a potential hacker leak online is to act quickly. The quicker the response, the better the result. The Internet seems to move at the speed of light, but a fast response can help to limit the damage. Read more ›

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Posted in Corporate Compliance, Criminal Law, Litigation, Litigation Practice, Prosecution & Defense, Social Media & Law, The Client, The Practice of Law, Uncategorized

Lawyer’s Duty to Preserve Social Media Evidence

By Hayes Hunt and Jeffrey Monhait

computer_187672427.jpgLawyers must take “appropriate” steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information.  An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including meta data

You Can Hide, But You Must Preserve

Changing social media settings to “private” merely restricts who may access a web page.  The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena.  The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence.  As long as the attorney preserves the complete evidentiary record, including meta data, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely. 

shoeprint.jpgYou “Must” Produce Complete Social Media Content

To comply with discovery requests, a lawyer “must” produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making “a false statement of material fact or law to a third person,” and Rule 8.4, which prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation.” A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer “reasonably believes” that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.

Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

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Posted in Social Media & Law

Deposition Tactics – Obstructionist Litigation

By Hayes Hunt and Arthur Fritzinger

Boom1.jpgWith fewer trials and an increasing focus on using the discovery process to leverage a favorable settlement or resolution, it is common for litigation counsel to be obstructionist during discovery. For example, counsel may interpose depositions with unwarranted boilerplate objections or subtly (or not so subtly) coach the witness by clarifying or commenting on the pending question. While such conduct is often ignored, it has contributed to rising litigation costs throughout the last decade and, as a sanctions order issued at the end of July by a federal judge in the Northern District of Iowa demonstrates, it can severely diminish counsel’s credibility before the trial judge. In light of the impact that discovery tactics can have on the cost and success of litigation, it is increasingly important for general counsel to set clear expectations when retaining attorneys to represent the company in litigation.

In Security National Bank of Sioux City, Iowa v. Abbott Laboratories, Civ. No. 11-4017, Doc. No. 205 (N.D. Iowa Jul. 28, 2014), U.S. District Judge Mark W. Bennett of the Northern District of Iowa sanctioned defense counsel sua sponte for his actions during several depositions and ordered counsel to write and produce a “training video” explaining appropriate attorney conduct. Bennett took note of what he considered obstructionist conduct when reviewing deposition testimony to rule on objections for trial. In a 33-page opinion, Bennett criticized counsel for making unnecessary and excessive objections to form, coaching the witness by making speaking objections and seeking independent clarification of pending questions, and frequently interrupting opposing counsel. Counsel never became abusive or used profanity. Indeed, the attorney conducting the deposition never sought relief from the court or requested that any sanctions be imposed. Nonetheless, Bennett concluded that counsel had violated the Federal Rules of Civil Procedure and had substantially frustrated the discovery process. In his view, sanctions were justified and necessary to change counsel’s “obstructive deposition practices” and deter “others who might be inclined to comport themselves similarly.”

One noteworthy aspect of Bennett’s opinion is that, although clearly inappropriate, the conductjudge1.jpg described by the court is not a rarity during depositions. Perhaps baseless objections and interruptions do not normally occur as excessively as they did in this instance. However, most litigators have encountered at least a few attorneys who make vague and excessive form objections and interpose unnecessary comments during the deposition, often in an effort to control the deposition and encourage the witness to provide more favorable, limited answers. 

With trials becoming less common, discovery has become the focus of litigation. Controlling the discovery process is a necessary and important aspect of effective litigation. Only about 2 percent of federal civil cases go to trial, according to a 2010 article from The National Law Journal titled “Two Federal Judges Offer Differing Takes on Declining Trial Numbers,” and cases are often won or lost during discovery, where facts are developed for dispositive motions and settlement. Attorneys often seek to control or limit discovery by being obstructive during depositions, objecting to legitimate discovery requests and inappropriately delaying the production of relevant evidence.

Attorneys may also increase the burden and cost of discovery by requesting or producing an excessive number of irrelevant documents, expanding the scope of litigation far beyond the evidence relevant to the claims being litigated. A 2010 study titled “Litigation Cost Survey of Major Companies” estimated that 1,000 pages of documents are produced for every single page entered as an exhibit at trial or during summary judgment. Among the largest companies in America, major cases involved the production of more than 4.9 million pages of documents.

robots.jpgMany attorneys refuse to cooperate during discovery because they believe it will force their adversaries to settle or will be advantageous later in the litigation. However, Bennett identified another reason attorneys may object to legitimate discovery requests: They believe clients expect them to frustrate the adversary. Corporate counsel must consider whether it is in their interest for their attorneys to frustrate the adversary while increasing the cost and burden of discovery, and risk losing credibility with the trial judge in the event counsel’s conduct is brought to the attention of the court.

It is unclear that obstructive tactics ever prevent opposing counsel from obtaining discoverable information, but they undoubtedly increase the cost and burden of discovery. Despite the fact that the number of trials has decreased over the last decade, litigation costs have risen an average of 9 percent per year, according to the litigation-cost survey. Between 2000 and 2008, litigation costs among Fortune 200 companies nearly doubled from $66 million to $115 million, despite the fact that attorneys’ hourly rates barely changed during the same time period. Indeed, some studies have estimated that, for most companies, litigation costs match the costs paid to plaintiffs in settlement and judgments.

These excessive costs are ultimately borne by clients, and corporate attorneys must be aware of the discovery tactics being used by outside counsel. Focusing discovery on the issues necessary for settlement or trial can bring cases to an efficient resolution, while encouraging overly aggressive tactics only to settle on the eve of trial is likely not a long-term cost-effective litigation strategy.

General counsel must also consider the effect that obstructive conduct may have on a determination of the case’s merits. Bennett’s opinion is a paramount example of how courts view efforts by counsel to frustrate or abuse discovery. Deposition transcripts are often filed with the court in connection with motions or in anticipation of trial. The court’s review of thoselawyers.jpg transcripts may shape its view of the attorneys or the parties’ legal positions. Appearing to be unprofessional is poor advocacy.

As discovery has become a principal factor in the success and efficiency of litigation, it is increasingly important for general counsel to set standards for the company’s litigation attorneys. Companies should remain informed as to how their outside counsel are responding to discovery and should work with counsel to develop a clear discovery strategy for each case. Together, the company and its litigation counsel must consider discovery tactics that will reduce the cost of discovery while providing a strategic advantage for dispositive motions and settlement.

 Originally published in The Legal Intelligencer on August 20, 2014.

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Posted in Litigation

30 (b)(6) Corporate Designee Depositions – What You Need to Know

By Hayes Hunt and Joshua Ruby

30.jpgIn a world where the overwhelming majority of cases never make it to trial, depositions take on outsized importance. They will almost certainly be the only in-person testimony either party has the opportunity to elicit and the only opportunity for live cross-examination. That means every deposition requires careful preparation.

Corporations and other entities have unique obligations regarding the depositions of corporate designees pursuant to Federal Rule of Civil Procedure 30(b)(6) and its state cognate, Pennsylvania Rule of Civil Procedure 4007.1(e). An entity must prepare a designated witness to answer its adversary’s questions, and the designee’s answers bind the entity in the litigation. Avoiding costly mistakes and discovery sanctions requires that both in-house and outside counsel for such entities take care to prepare for such depositions and understand the rules that govern them.

Adversary’s Responsibilities In Noticing Deposition

The entity’s adversary has few obligations in noticing the deposition of a corporate designee. AlllowercaseB (2).jpg Rule 30(b)(6) requires is a notice directed to the entity that “describe[s] with reasonable particularity the matters for examination.”

Notwithstanding this minimal obligation, some limits do exist on the adversary’s description of the matters for examination. The qualifier “including, but not limited to,” or other language indicating that the topics listed in the notice are not exclusive renders the notice overbroad and subject to a motion to quash. (See, e.g., Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000).) 

Instead, the adversary has an obligation to define the “outer limits” of the subject matter of the deposition of the corporate designee. This limit exists to ensure that the entity is capable of designating a witness (or witnesses) who can testify about each of the topics listed, rather than facing the “impossible task” of designating a witness who can testify about all possible questions the adversary might ask.

Responsibilities Upon Receiving Rule 30(b)(6) Notice

#6.jpgUpon receiving a Rule 30(b)(6) notice, a corporation must produce a witness (or witnesses) for deposition questioning by the adversary. The witness(es) must be capable of giving “complete, knowledgeable and binding answers on behalf of the corporation” about each of the topics listed in the deposition notice, according to Marker v. Union Fidelity Life Insurance, 125 F.R.D. 121, 126 (M.D.N.C. 1989).

Accordingly, the corporation also incurs a duty to educate and prepare its designees to testify about any matter outside the designee’s personal knowledge, which the Rule 30(b)(6) notice specifies. Failure to do so “is tantamount to a failure to appear, and warrants the imposition of sanctions,” as in United Technologies Motor Systems v. Borg-Warner Automotive, Civil Action No. 97-71706, 1998 U.S. Dist. LEXIS 21837, at *4 (E.D. Mich. Sept. 4, 1998).

Who Can The Corporation Designate?

An entity is not limited to its own present employees as its corporate designees. Instead, Rule 30(b)(6) permits an entity to designate “officers, directors, or managing agents, or … other persons who consent to testify on its behalf.”

In particular, where the relevant events have long since passed, a former employee may be the most appropriate corporate designee. In Beauperthuy v. 24 Hour Fitness USA, Case No. 06-715 SC, 2009 U.S. Dist. LEXIS 104906, at *17 n.5 (N.D. Cal. Nov. 9, 2009), for example, the court held that “the text of Rule 30(b)(6) leaves no doubt that a former employee can and should be designated as a Rule 30(b)(6) deponent, if the former employee is the most knowledgeable individual and as long as the former employee consents.”

Nor does Rule 30(b)(6) limit proper designees to people employed by or otherwise affiliatedKnowledge.jpg with the entity. Any “other person who consent[s]” to testify on behalf of the entity and has the requisite knowledge and preparation may do so.

What Questions Must The Corporate Designee Answer?

As with any other deposition witness, the corporate designee must testify about facts within his or her (or, in this case, the entity’s) knowledge. But a corporate designee’s responsibilities go further; he or she must also answer questions about the entity’s “subjective beliefs,” “interpretation of documents and events,” and “position” on any of the topics in the deposition notice, as in United States v. Taylor, 166 F.R.D. at 361.

Some courts also permit the adversary to ask questions beyond the scope of the topics in the deposition notice. Even where the court so permits, the answers of the designee are treated like those of any other fact witness and do not bind the entity, according to Detoy v. City & County of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000).

Other courts, such as in Paparelli v. Prudential Insurance Co. of America, 108 F.R.D. 727, 728-31 (D. Mass. 1985), have held that the adversary may not ask questions beyond the topics listed in the Rule 30(b)(6) notice. But counsel for the entity cannot enforce that limitation by instructing the designee not to answer the questions. Instead, the designee must answer the questions to the extent possible, and the adversary has no recourse if the witness disclaims knowledge of matters outside the scope of the deposition notice.

What Is Effect Of Corporate Designee’s Testimony?

buildings2.jpgWithin the scope of the deposition notice, the designee’s answers are the corporation’s answers. That is not to say that the corporation may not later alter its answers or positions, but doing so will subject its representatives to cross-examination at trial. And the deposition testimony itself of the designee may be admissible at trial as a prior inconsistent statement, a statement against interest, or on another basis.

The same rule applies “if a party states it has no knowledge or position as to a set of alleged facts or area of inquiry at a Rule 30(b)(6) deposition.” In that circumstance, “it cannot argue for a contrary position at trial without introducing evidence explaining the reasons for the change.”

The deposition of a corporate designee presents both risks and opportunities for a corporation or other entity involved in litigation. By understanding the rules that govern such depositions, both in-house and outside counsel for entities can use them to great effect while minimizing the risks to their client’s litigation positions.

Originally published in The Legal Intelligencer on July 16, 2014.

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Posted in Litigation

ABA Blawg 100 – From the Sidebar

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Please consider nominating From the Sidebar for the ABA Blawg 100. In years past, we have been awarded the ABA Blawg 100 and ask that you help us continue our tradition.   We really appreciate all your support and interest in our legal blog.  For the past 3 years, From the Sidebar has been a great experience for all of us. Nominations can be submitted here.

 Yours with gratitude,

Hayes

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Psychology In the Courtroom – Is Social Science “Common Sense” or a Tool to Correct Juror Misconceptions?

By Thomas G. Wilkinson and Thomas M. O’Rourke

brain.jpgThe Pennsylvania Supreme Court recently issued two decisions regarding the use of social science experts in criminal cases.  As noted by University of Pittsburgh law professor David Harris, however, the opinions appear to “come from two different worlds.” In one, Commonwealth v. Walker, the Court held that expert testimony regarding memory and human perception could be used to educate jurors on the potential fallibility of eyewitness identifications, holding that such evidence may assist the jury in weighing the evidence presented at trial.  In the other, Commonwealth v. Alicia, the Court held that an expert was not permitted to explain the psychological factors that could result in a false confession.  Unlike in Walker, the Alicia Court did not provide any discussion of the underlying scientific research.  Rather, a divided Court simply held that the proposed expert testimony would infringe on the “jury’s role as arbiter of credibility.”

The Court’s divergent approach to social science in these cases raises important questions about the current and future role of social science in the courtroom.

The Limits of Eyewitness Identification

In Commonwealth v. Walker, the Court reversed its prior position on the use of expert testimony regarding the reliability of eyewitness identifications, holding that such evidence is no longer perEyeWitness.jpg se impermissible in Pennsylvania.  In doing so, the Court followed the “unmistakable trend” in recent cases across the country and joined 44 other states and the District of Columbia in permitting expert testimony on this issue.  Specifically, the Court was convinced that “advances in scientific study have strongly suggested” that eyewitness identifications may be inaccurate, particularly when the crime involves a weapon and the perpetrator is of a different race.  In the Court’s view, effective cross-examination and closing arguments may be insufficient to inform the jury of these risks. 

Writing for the majority, Justice Todd explained that trial courts should have the discretion to permit an expert to “educate” the jury about the psychological factors that may impact eyewitness identifications.  In so holding, the Court dismissed the Commonwealth’s argument that such testimony would invade the jury’s role as fact-finder.  The Court noted that experts would only be permitted to address general psychological principles, not the credibility of a particular witness or the accuracy of any particular identification.  In the majority’s view, such testimony would improve juror decision-making by opening their eyes to the potential fallibility of human memory and perception in high stress situations.  lemming.jpg

Chief Justice Castille and Justice Eakin issued dissenting opinions, with Chief Justice Castille also joining in Justice Eakin’s dissent. Chief Justice Castille criticized the majority for blindly following the trend in decisions of other states, without independently evaluating any psychological research. In refusing to “sign on to the Majority’s enshrinement of this contested social research in these circumstances,” Chief Justice Castille expressed skepticism about the social science underlying eyewitness identification and questioned whether expert testimony on memory and perception would actually assist jurors. He went on to say that “I understand the attraction of the lemmings to the sea approach, but I also try to keep in mind the cliff awaiting[.]” He also questioned whether the benefits of expert testimony, as opposed to the traditional approach of exploring flaws in eyewitness identification through effective cross-examination, “will justify the price-tag” of competing experts.

“The Phenomenon of False Confessions”

In Commonwealth v. Alicia, the majority took a more skeptical view of developing social science. In Alicia, a man with “low intelligence” and “mental health issues” confessed to firing a gun that killed an innocent bystander. Of the eyewitnesses, only one pointed to the defendant – the others claimed it was one of two other men. Before trial, the defendant convinced the trial court that he should be permitted to offer an expert to explain psychological research regarding how false confessions may result from interrogation.

The Commonwealth took an interlocutory appeal from the trial court’s decision, asserting thatheads.jpg the proposed expert testimony invaded the jury’s exclusive role as the arbiter of credibility. A divided panel of the Superior Court affirmed. In an opinion authored by Justice McCaffrey, the Supreme Court reversed, holding that “[g]eneral expert testimony that certain interrogation techniques have the potential to induce false confessions improperly invites the jury to determine that those particular interrogation techniques were used to elicit the confession in question, and hence to conclude that it should not be considered reliable.” Such issues, rather, are “best left to the jury’s common sense and life experience[.]”

Unlike its decision in Walker, the Court offered no discussion of the scientific studies on false confessions or the prevailing position of social science on the issue. In the opinion of David Harris of the University of Pittsburgh, the Court’s omission of any such discussion is “troubling,” as the research on false confessions “is there. It’s well done. It’s reliable. And yet, it’s not even mentioned in the Alicia opinion. [The Court] just ignore[s] it.”

Scientific Testimony or Common Sense?

The primary distinction between the Court’s treatment of social science in Walker and Alicia is the subject matter of the research. Although the Court has refused CreativeIdea.jpgto endorse the validity of the body of psychological research behind false confessions, it has given defendants license to use similar research to challenge eyewitness identifications. One possible reason for the different outcomes is that police interrogations and confessions are familiar territories for the Court, while psychological findings regarding “weapons focus” and “cross-racial identification” are outside the Court’s experience. Indeed, the admissibility and reliability of confessions are already the subject of Miranda and other constitutional protections that have long been a staple of criminal procedure.  

Setting aside for a moment the question of whether the Court has simply given greater credence to the more extensive body of social science underlying faulty eyewitness identifications over false confessions, one thing is clear – the Court will approach expert testimony in this area with caution. The Court clearly was reluctant to admit expert psychological or psychiatric testimony that would serve as a direct challenge to witness credibility, a matter viewed as “well within the range of common experience, knowledge, and understanding of a jury”.

As the Court recognized in Walker, however, social science experts can educate the jury that its common sense may be wrong in certain circumstances. Such expert assistance may improve decision-making. But, as noted by Chief Justice Castille, experts are expensive, and “not allcommonsense.jpg disciplines self-denominated as scientific are as objectively reliable as others.” While costs should not alone justify excluding important exculpatory evidence in criminal cases, practical concerns regarding whether expert testimony bolstering or undermining the testimony of eyewitnesses to a crime clearly warrants further scrutiny on a case-by-case basis, ensuring that the requisite elements of Pennsylvania Rule of Evidence 702 and the Frye test have been satisfied.

It remains to be seen to what extent the Court’s ruling in Walker will generate frequent expert challenges to eyewitness testimony. For now, it is up to the trial courts and criminal defense attorneys to determine which cases will likely benefit from social science experts and what quantum of expertise they must possess to qualify to “teach” the jury about the pitfalls of eyewitness identification.

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Thomas G. Wilkinson, Jr., is a member of Cozen O’Connor in Philadelphia, where he practices in the Commercial  Litigation Department (twilkinson@cozen.com).  He is the Past President of the Pennsylvania Bar Association and past chair of its Civil Litigation Section.

Thomas M. O’Rourke is an Associate at Cozen O’Connor, where he practices in the Commercial Litigation Department (tmorourke@cozen.com). 

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Posted in Prosecution & Defense

Criminal Conduct & Sports: Luis Suarez – World Class Biter

By Hayes Hunt and Calli Varner

Suarez2.jpgYesterday, Uruguay striker Luis Suarez bitbite2.jpg Italian defender, Giorgio Chiellini’s shoulder like a piece of pizza. Uruguay advanced to the knock-out round of the World Cup and Italy was eliminated. Suarez also took a huge bite out of Uruguay’s chances of winning the World Cup. This was the third time he has bitten a player during a soccer match.  FIFA has opened an investigation into the incident and Suarez will likely be suspended for the remainder of the World Cup.

Last year, Suarez, while playing for Liverpool, was suspended for 10 games for biting a Chelsea player.  Suarez issued a public apology and paid a fine.  British Prime Minister, David Cameron, stated that Suarez’s conduct set “the most appalling example” to children. Like a child, Suarez attempts to resolve his anger by biting other people.  Unlike most children, Suarez does not learn from being punished, accept responsibility, or show remorse for his bad behavior. In 2010, he was banned for 7 games when he bit PSV Eindhoven player, Otman Bakkal.  As a result, he earned the nickname the “Cannibal of Ajax” and now, ”Count Suarez.”   

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Unlike soccer, American football, hockey, and boxing are based on repeated physical assaults. These occurrences raise questions about the liability athletes face (or do not face) for acts of aggression taking place on the field during the game. Of course, when a player steps into that zone, he or she assumes certain risks — the risk of any loss, damage, or injury that may occur to him or her while on the playing field. The athlete also has given informed consent to any injuries that may occur — he or she has full knowledge of the risks associated with athletic competition and consents to those risks. Under these theories, it would seem as if athletes are protected from tort liability for incidents or injuries administered to an opponent. What happens, though, when the conduct at issue extends beyond aggressive competition and rises to the level of criminal conduct?

FIFA.jpgHere, Suarez’s actions, if taking place off the field, would be deemed criminal. You cannot walk down the street and bite someone without criminal punishment. Suarez, however, has never been charged criminally; he was merely suspended for a number of games, despite the fact that this is not his first offense. This incident, of course, brings up memories of the 1997 Tyson v. Holyfield fight, where Tyson bit off a portion of Holyfield’s ear. Rather than face criminal penalties, Tyson was fined $3 million and his boxing license was temporarily revoked.dog1.jpg

Evasion of criminal liability, however, is not always the norm. There are numerous incidents where the conduct of NHL hockey players has resulted in criminal charges. Most recently, Todd Bertuzzi of the Vancouver Canucks punched Steve Moore of the Colorado Avalanche in the back of the head, rendering Moore unconscious. Bertuzzi then fell on top of Moore, crushing him into the ice. Moore sustained numerous injuries, including fractured vertebrae and a concussion. In addition to fines and suspension, Bertuzzi was criminally charged with assault causing bodily harm and faced up to one and a half years in prison. Bertuzzi later pled guilty to the charge and was sentenced to 80 hours of community service and one year’s probation.

The inconsistencies in these sanctions show that there are no “rules of the game” when it comes to criminal conduct on the playing field. Governments may enact legislation if FIFA and other governing agencies fail to punish the repeated criminal acts of a player.

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Posted in Prosecution & Defense

Judge the Fighting Judge – How Would You Rule?

By Hayes Hunt and Thomas O’Rourke

robots.jpgOn June 2, 2014, a fight broke out in the hallway of a Brevard Country, Florida courtroom.  The fight was between an assistant public defender and the presiding Judge, Retired Army Reserve Colonel, John Murphy, who threatened the attorney after he refused to waive his client’s speedy trial right.  Specifically, after stating that he would “throw a rock at him” if he had one,  Judge Murphy demanded to see the attorney “out back” so that he “could beat [his] ass.”   The video of the incident, which can be seen in full here, shows that the two men then rushed out to a back hallway outside of the camera’s view where a violent fight apparently erupted.  The judge ultimately returned to the courtroom alone where he received a round of applause and was offered a drink of water.  He then proceeded to conduct court, setting a trial date in the defendant’s case.

 What, if anything, should the Florida Judicial Qualifications Committee do? 

  1. Take no action. Soccerreferees.jpg
  2. Take no action, unless the lawyer makes a complaint to the Committee.
  3. Dismiss the judge.
  4. Require the judge to take a leave of absence and attend anger management classes.

Note:  The Chief Judge of the 18th Judicial Circuit in Florida has temporarily reassigned the Judge’s pending cases and he has agreed to seek anger management and treatment during a leave of absence. 

Illustrationexplosion.jpgWhat, if anything, should the Orlando prosecutor do?

  1. Charge the judge with a crime, such as assault, battery or disorderly conduct.
  2. Nothing. Don’t waste any more time on the matter.

Note: It is reported that the lawyer will not be pressing charges.

 

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Posted in The Bench

Prohibiting Discovery of Attorney-Expert Communications

By Jeffrey M. Monhait

lightbulb1.jpgAre communications between attorneys and their retained experts discoverable?  For now, the answer appears to be no, as a divided Pennsylvania Supreme Court recently affirmed a Superior Court decision “creat[ing] a bright-line rule denying discovery of communications between attorneys and expert witnesses.”  Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 76 MAP 2012, 2014 Pa. LEXIS 1111, at *2 (April 29, 2014). 

 Background

Plaintiff Barrick brought this suit against defendants for injuries he sustained when a chair in which he was sitting collapsed in the cafeteria of Defendant Holy Spirit Hospital.  Defendants served a subpoena on Barrick’s treating surgeon for all relevant medical files.  The surgeon, upon advice of plaintiffs’ counsel, withheld certain documents pertaining to Barrick on the basis that they were not created for treatment purposes.  Defendants filed a motion to enforce the subpoena, and plaintiffs objected on the basis that they had designated the surgeon as an expert witness.  Thus, plaintiffs contended that all communications between their counsel and the surgeon were protected pursuant to Pa.R.C.P. 4003.3 and 4003.5. 

The trial court conducted an in camera review, and granted defendants’ motion to enforce the subpoena.  When an expert is to be called at trial to advance a party’s case in chief, the trial court concluded that opposing parties are entitled to evaluate whether and to what extent “the nature of the expert’s testimony may have been materially impacted by correspondence with counsel.” 

Plaintiffs immediately appealed to the Superior Court.  Initially, a panel of three judges affirmed the trial court, concluding that defendants “were entitled to discover whether the expert’s conclusions were his own or guided by Plaintiffs’ counsel.”  Plaintiffs then petitioned an en banc panel of the Superior Court, which reversed, concluding that: 1) the records were beyond the permissive scope of expert discovery under Pa.R.C.P. 4003.5(a)(1); 2) defendants had failed to show “cause” under Rule 4003.5(a)(2) to obtain additional discovery; and 3) that “Rule 4003.3’s protection of work product shielded the correspondence from disclosure.” 

The Supreme Court granted review on the issue of whether “the Superior Court’s interpretation of Pa.R.C.P. 4003.3 improperly provides absolute work product protection to all communications between a party’s counsel and their trial expert.”  The Court, however, deadlocked, with three justices on each side.  Thus, the Superior Court decision was affirmed.

expert1.jpgOpinion in Support of Affirmance (“the Affirmance”)

According to the Affirmance, the work product protection codified in Rule 4003.3 “supports our judicial system, based on the adversarial process by allowing counsel privacy to develop ideas, test theories, and explore strategies in support of the client’s interest, without fear that the documents in which the ideas, theories and strategies are written will be revealed to the opposing counsel.”  Meanwhile, Rule 4003.5 allows a party to “discover ‘facts known and opinions held by an expert’ through interrogatories.”  Thus, attorney-expert communications can bring these rules into conflict.

This conflict will arise frequently, because “most correspondence between counsel and an expert witness will necessarily entail substantial overlap and intermingling of core attorney work product with facts which triggered the attorney’s work product, including the attorney’s opinions, summaries, legal research, and legal theories.”  Although the trial court could review these materials and protect work product from disclosure, the Affirmance “conclude[d] that attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process.”  Discovery of redacted correspondence, followed by in camera review, would result in needless, expensive, and time-consuming litigation.  “[W]e conclude that it is preferable to err on the side of protecting the attorney’s work product by providing a bright-line rule barring discovery of attorney-expert communications.”

The Affirmance also cited the proposed amendment to Rule 4003.5 that would embrace this bright-line rule.  However, it took pains to note that its “consideration of the proposed amendment . . . is entirely separate . . . from the determination of the case before us.”

Opinion in Support of Reversal (“the Reversal”)

ideas.jpgThe Reversal took a straightforward position—that the rules “simply do not establish a categorical prohibition” against discovery of attorney-expert correspondence, and thus the Superior Court’s contrary decision should be reversed.  The Reversal also took umbrage with the Affirmance using the case “as a vehicle to modify the existing rules.”

For the Reversal, the “truth-determining process of a trial requires meaningful cross-examination of expert witnesses,” and such cross-examination is only possible where counsel can discover, before trial, any and all information an expert relied upon.  Furthermore, absent discovery of attorney-expert communications, there would be no way to investigate whether “manipulative counsel” influenced the expert’s opinions, or even wrote the expert’s report.

Rather than bar discovery of all communications between attorneys and experts, the Reversal sought to balance the broad scope of discovery with the protections afforded attorney work product.  Thus, “purely factual or other information . . . that does not represent core attorney work product, although contained within communications between counsel and an expert witness, does not fall within Rule 4003.3’s protective scope.”  When a communication contains a mixture of “work product and other material, both sets of policy objectives are served if that portion of the document consisting or core work product is protected, while the remainder is subject to discovery.”  Since trial courts typically conduct in camera reviews to evaluate privilege assertions, the Reversal disagreed with the Affirmance that such reviews would be overly burdensome.

Lastly, the Reversal objected to the Affirmance’s consideration of the proposed rule change, arguing that an appeal is an improper vehicle to amend the rules.  Rulemaking is “ordinarily prospective in nature,” and cases must be decided based on “the governing provisions in force at the time.”

What Next?brightline.jpg

The Affirmance and Reversal might agree that, in theory, where attorney-expert correspondence contains a mix of protected work product and other material, the non-work product is technically discoverable.  However, the Court split on whether to allow trial courts to review, identify, and separate out the protected portions of all attorney-expert correspondence.

For now, the Superior Court’s “bright-line rule” seemingly allows attorneys to withhold all communications with their experts.  However, the Court’s divided position warrants caution, as the Court may revisit this issue again in the near future, especially following the July 2013 arrival of Justice Correale Stevens to replace former Justice Orie Melvin.  In any event, attorneys should continue to follow a fundamental rule of correspondence—before hitting “send,” consider the impact the email (or letter) would have upon a jury, or in a deposition.

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Posted in Litigation

Attorney-Client Privilege & Corporate Dissolution

By Hayes Hunt and Arthur Fritzinger

redeye.jpgAllegheny County Court of Common Pleas Senior Judge R. Stanton Wettick Jr.’s recent ruling in Red Vision Systems v. National Real Estate Information Services, No. 14-0411 (Comm. Pls. Feb. 26, 2014), that the attorney-client privilege does not apply to corporations no longer in business has garnered significant attention, including an appeal and the filing of amicus briefing by the Association of Corporate Counsel. The ACC, which represents more than 33,000 in-house lawyers from more than 10,000 organizations, warns that allowing Wettick’s ruling to stand “would substantially inhibit the full and frank exchange of relevant information necessary for corporations to receive effective sound legal assistance.” However, Wettick’s opinion is hardly an outlier and corporate communications with counsel are subject to disclosure in many circumstances inapplicable to an individual’s relationship with his or her attorney.

The challenge to Wettick’s ruling rests principally on the argument that dissolved corporations should be treated the same as deceased individuals for purposes of the protection of confidential communications. Since the U.S. Supreme Court’s ruling in Swidler & Berlin v. United States, 524 U.S. 399 (1998), courts have continued to protect a person’s private conversations with their lawyer from disclosure after death. Corporations are even more dependent upon attorneys than individuals, particularly in light of the increasing number of regulations with which they must comply. Attorneys depend on the candor and openness of the officers of the corporations they represent and, according to the ACC, “abolishing the privilege after an entity’s death will affect its interests before its death by interfering with its ability to obtain sound legal advice and effective representation.” Corporate representatives who have fewer assurances that their communications will remain confidential are less likely to be fully candid. 

However, the appellant and the ACC are likely to face significant hurdles. Courts have oftetightrope.jpgn subjected confidential corporate communications to disclosure in circumstances inapplicable to individuals. Nearly 30 years ago, the Supreme Court ruled in Commodity Futures Trading Commission v. Weintraub, 571 U.S. 343 (1985), that the right to assert privilege transferred from management to the trustee appointed during Chapter 7 bankruptcy proceedings. In reaching this conclusion, the court noted that the corporate attorney-client privilege is normally controlled by management and, in the context of bankruptcy, the trustee’s “duties most closely resemble those of management.” In contrast, the rights of the corporation’s previous management are “severely limited.” They consisted only of turning over the corporate assets to the trustee and providing information to the trustee and creditors.

Since the Supreme Court’s ruling in Weintraub, similar reasoning has been applied to rehabilitation and liquidation proceedings, as well as to regulatory takeovers by agencies like the Federal Deposit Insurance Corp. Each of these rulings is grounded in the generally accepted principle that present, active management controls a corporation’s attorney-client privilege and may choose to assert or waive that privilege consistent with its fiduciary duty. Past managers have little say in the matter, even if the communications at issue were made by them during their tenure at the company.

However, transferring the right to assert the privilege on behalf of the corporation may not be the same as abolishing it altogether after the corporation has dissolved. In situations where new management or a trustee decides to waive privilege, those individuals have duties to the corporation and are charged with acting in its best interest. If the corporation loses its privilege entirely following dissolution, its records and communications with counsel could become an open book for regulators, potential claimants or parties seeking information about other entities in the possession of the dissolved company. In such circumstances, the defunct corporation would be entirely unrepresented.

skulls.jpgNonetheless, most courts to consider the issue have agreed with Wettick that the attorney-client privilege dies with the corporation. These courts reason that once the corporate entity ceases to exist, or no longer has any officers or directors with authority to assert or waive the privilege, the attorney-client privilege no longer applies. Non-operating corporations have no management capable of asserting the privilege, nor do they have good will or reputation to maintain. The Restatement (Third) of the Law Governing Lawyers supports this view as well, noting that when “a corporation or other organization has ceased to have a legal existence such that no person can act in its behalf, ordinarily the attorney-client privilege terminates.”

The principal area of disagreement among courts concerns an issue not present in Red Vision: whether a corporation that has ceased operations but has not completed the winding-up process is entitled to assert the privilege. Some courts have ruled that such entities still enjoy protection of the privilege, noting that the corporation is still being managed in some respects. Importantly, the winding up of their affairs often involves the pursuit of claims against debtors or the defense of the corporation against creditors.

Other courts, however, have held that the privilege ceases along with operations, even prior to complete dissolution. They reason that during dissolution only the “shell of the corporation” continues to exist, operating for the sole purpose of marshaling and distributing assets. Without active management operations, some courts have held that the entity “is, for all intents and purposes, dead,” as in Bagdan v. Beck, 140 F.R.D. 660, 667 (D.N.J. 1991).redsunglasses.jpg

Regardless of whether Wettick’s decision in Red Vision is upheld, it is important for corporate counsel to understand and communicate to management that there is no guarantee that any officer’s communications with counsel will remain confidential in perpetuity. Courts have uniformly held that the privilege belongs to the corporation, and that present management has the absolute right to assert or waive the privilege consistent with its fiduciary duty. Officers and directors are often replaced, and new management may not wish to protect every communication made by their predecessors. Informing corporate officers of this reality is yet another aspect of general counsel’s responsibility to make it clear that they represent the corporation and not its individual representatives.

Originally published in The Legal Intelligencer on May 21, 2014.

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Posted in Privilege
About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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