Strike That. Objecting to Yourself. Eddie and Opening Day.

By Hayes Hunt

Eddie Ohlbaum, my close friend, recently passed away.  He loved trial work, teaching at Temple Law and advocating for the indigent.  He also loved the Brooklyn Dodgers.  I called him for his input when I wrote my first article for From the Sidebar. I figured if Eddie deemed my writing about trial and advocacy worthy of publication, this blog thing may just work out. I republish “Strike That” for Eddie and Opening Day.

milkbottle.jpgEveryone’s parents had a seemingly different remedy for the hiccups.  I had to hold my arms straight in the air while my mother slowly poured a glass of milk into my mouth. There would be a brief pause — she and I would stare at one another wondering if I was cured. After a few seconds, I’d invariably hiccup some milk.  My mom and I did this at least a hundred times with limited success.  Despite probabilities, I’m still convinced it works. It is what I learned.

Lawyers have frequent mental hiccups trying to formulate a question: get a person’s name wrong, struggle to find a word, draw a blank. Asking a perfect question every time isn’t easy.  Lawyers have a unique cure-all phrase to remedy asking a bad question. Yes, in law there is such a thing as a bad question. Thebaseballglove.jpg next thing that comes from the attorney’s mouth is the cure for the hiccup: Strike that. As if those two words somehow make it all go away. The court reporter just transcribed: Strike that.  The question you pitched is not a strike and there’s no umpire. 

There are two instances when “strike that” is commonly used:  depositions and trial. We probably learned the phrase from watching others take a deposition or try a case. A deposition transcript with clear precise questions, especially on crucial issues, is invaluable.  You will use the transcript at any point in litigation including at trial.   A transcript or video deposition riddled with “strike that” makes your questions less important.  Witnesses have credibility and so do you.  At trial, the jury believes “strike that” has some legal meaning and will be inclined to ignore the question.  The lawyer also wants to excuse the question before the judge or her adversary makes an objection.  Her attempt to restart her question is understandable and valid.  However, her adversary can object:

Objection.  Your Honor.  I ask that counsel be instructed that the stenographer has a duty to transcribe and, in order to exclude any portion of the trial record, counsel needs to have a ruling from the court.

My best guess is that most of us learned from practitioners using the common law principle pitcher2.jpg“move to strike” after an objection.  Move to strike was an effort to preserve counsel’s objection for appeal relating back to the question or answer.

Another cure for the questioner’s hiccups is to try “let me rephrase”.   Fortunately, you don’t have to raise your arms every time you try it.

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Privileged Communications With Outside Consultants

By Hayes Hunt and Arthur Fritzinger

consulting#3.jpgPenn State University recently decided to waive attorney-client privilege and cooperate in the criminal prosecutions of certain former employees. Obviously, the former employees have attempted to assert privilege to exclude potentially incriminating statements. How would it affect their claims of privilege if the university shared that confidential information with outside consultants hired during the investigation?

Like most large organizations dealing with a crisis, Penn State hired a number of consultants and public relations firms following the sexual-abuse revelations about former assistant football coach Jerry Sandusky. While independent consultants can provide valuable independent opinions, their work often requires sharing confidential communications. As companies and organizations have increasingly relied upon outside consultants, courts throughout the country have struggled to identify standards for applying the attorney-client privilege to communications between those consultants and in-house counsel. It is critical for counsel to understand these standards in order to take early action to protect communications with outside consultants.

The question of whether, and under what circumstances, the attorney-client privilege protects communications with outside consultants is particularly important given the increasing popularity of outsourcing corporate functions. Between 2012 and 2013, the U.S. market for management consulting grew 8.5 percent, reaching nearly $40 billion. IBM, traditionally known as a hardware manufacturer, now obtains about half of its revenue from business consulting and systems integration through its global business services group. Moreover, as the recent news about Penn State shows, consultants are often brought in during pivotal times to provide advice that requires access to confidential and privileged information. Maintaining the ability to keep privileged communications with those consultants is more important than ever.

Legal recognition that the scope of the attorney-client privilege must match the realities of corporate business structure began with the U.S. Supreme Court’s landmark decision in Upjohn v. United States, 449 U.S. 383 (1981). In that case, the court held that the attorney-client privilege is not limited to communications between counsel and upper management. Instead, conversations between any employees and a company’s attorney are privileged if made for the purposes of providing or obtaining legal advice. As organizations have increasingly adopted more diverse and nontraditional business structures, courts have struggled with how best to apply the principles discussed in Upjohn to these novel circumstances. Traditionally, providing privileged information to third parties, like consultants, waived the privilege. However, as consultants play a larger role in the operations and success of a business, they often require access to privileged information and provide general counsel with information necessary to make informed legal decisions for the business. 

businessman#2.jpgFederal courts have disagreed on how to resolve the issues raised by the increasing role of non-employees. Other courts, however, have adopted a more restrictive approach, finding that disclosure to outside consultants results in waiver of attorney-client privilege in most circumstances. Under this approach, communications are only privileged when the consultant is hired to perform a corporate function necessary in the context of actual or anticipated litigation. While no circuit court of appeals has adopted this restrictive test, it has been applied by five district courts.

The majority of courts, however, have adopted a pragmatic approach that focuses on whether the consultant was the “functional equivalent” of an employee. Under this standard, communications with consultants are privileged if, by virtue of their role, they possess or have access to confidential information necessary for the provision of legal advice. Additionally, courts applying the “functional equivalent” doctrine will focus upon the closeness of the relationship between the client and the consultant, whether the consultant was required to maintain confidentiality and, of course, whether its communications with counsel were for the purposes of providing or obtaining legal advice.

The U.S. Court of Appeals for the Eighth Circuit was the first to apply this approach, in In re Bieter, 16 F.3d 929 (8th Cir. 1994), finding that “it is inappropriate to distinguish between those on the client’s payroll and those who are instead, and for whatever reason, employed as independent contractors.” Courts favoring this broader approach argue that it is compelled by the reasoning underlying Upjohn. They urge that limiting the privilege to consultants hired for litigation purposes unreasonably burdens the ability of corporate counsel to confer with non-employees who possess essential information. Just as mid- or lower-level employees often possess information needed by corporate counsel, courts adopting the broader approach argue that independent consultants performing tasks critical to the business do as well.

Since the Eighth Circuit’s decision, the “functional equivalent” doctrine has been adopted by the Ninth, Tenth and D.C. circuits. The standard has also been applied by more than a half-dozen district courts throughout the country. In these cases, courts have protected communications between companies and a diverse group of independent contractors, including accountants, construction advisers, independent credit counselors, insurance advisers and public relations and marketing consultants.

In 2003, U.S. District Judge Stanley R. Chesler of the District of New Jersey applied the more restrictive approach in In re Bristol-Myers Squibb Securities Litigation, Civ. No. 00-1990 (D.N.J. Jun. 25, 2003), to conclude that communications with public relations and marketing consultants were not privileged because they were not hired for litigation purposes. Since then, two judges in the U.S. District Court for the Eastern District of Pennsylvania have disagreed. In In re Flonase Antitrust Litigation, 879 F. Supp. 2d 454 (E.D. Pa. 2012), U.S. District Judge Anita Brody found that sharing confidential communications with a pharmaceutical consultant did not waive the protection of the attorney-client privilege. Just last September, U.S. District Judge Mitchell S. Goldberg similarly concluded that the privilege protected the disclosure during discovery of emails between a pharmaceutical company and a marketing consultant in King Drug Co. of Florence v. Cephalon, Civ. Nos. 2:06-1797, 2:08-2141 (E.D. Pa. Sep. 11, 2013).

consulting.jpgGiven the disagreement among federal courts, it is critical for general counsel to know the standards being applied where the company is subject to litigation and to have a proactive role in protecting the privilege of confidential communications. These steps can include the use of confidentiality and retention agreements, limiting the disclosure of communications between the consultant and corporate counsel and defining which employees of the consulting firm are entitled to have access to confidential information. In the unfortunate event that communications with consultants become the subject of litigation, or even a criminal investigation, it is crucial that the decision to disclose those communications remains with the client. Now that you know the legal issues and current standards applied by courts, look for next month’s article, where we will provide an outline of suggested practical tips to protect your privilege.

Originally published in The Legal Intelligencer on February 19, 2014.

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Twitter, Evidence, Privacy and Social Media

By Hayes Hunt and Brian Kint

twitter.jpgA recent case, albeit one dealing with a governmental subpoena, shows that the SCA may not be the panacea that social networking sites think it is. In People v. Harris, Twitter sought to quash a subpoena it had received to produce all user information and tweets from a criminal defendant’s Twitter account. The court disagreed with Twitter that the subpoena violated the SCA. The court noted that the SCA protects only private communications and that the government can still compel a provider to disclose certain types of information if it obtains a search warrant or court order as prescribed by the statute. As a result, it ordered that certain information be disclosed over Twitter’s objections.

The Harris court also dealt with privacy issues and analyzed whether the information requested was protected by the Fourth Amendment. The court noted that the Fourth Amendment protects only information in which a person has a reasonable expectation of privacy. Accordingly, the Supreme Court has repeatedly held that the Fourth Amendment does not protect information revealed to third parties. Because tweets are essentially broadcast to the world, the court concluded, Twitter users have no reasonable expectation of privacy, and therefore, tweets are not protected by the Fourth Amendment.

The court distinguished the principal case relied upon by Twitter, United States v. Warshak, because that case involved emails rather than social website postings. Unlike emails that are directed at specific addressees, the court compared tweets to yelling out an open window. It said:

Consider the following: a man walks to his window, opens the window, and screams down to a young lady, “I’m sorry I hit you, please come back upstairs.” At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, “What did the defendant yell?” Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third-party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.


Of course, the court’s analogy raises a question regarding the ways in which private social mediaprivacy.jpg users must disseminate their information in order to maintain a reasonable expectation of privacy. While tweets are inherently public, information on other social networking sites is not. For example, Facebook users can direct certain posts to individuals or small groups of friends. Are such posts more akin to private email communications or a public Internet communication? The answer will help to determine what information is accessible to prosecutors and defense attorneys alike.

Courts will continue to face this and many other questions regarding social networking sites as technologies continue to evolve. As the Harris court noted, “In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology.” The SCA itself was enacted in 1986, when email was cutting-edge technology and before the widespread use of the Internet, blogging, and social networking. As a result, judges are often forced to apply outdated laws to constantly changing technologies that they may not even fully understand. While this dynamic can create uncertainty (and frustration), it can also create opportunities for defense counsel to find creative ways to vindicate the rights of their clients.

Originally published in the December 2013 issue of The Champion.

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Facebook Subpoena – Trial Evidence

By Hayes Hunt and Brian Kint

facebook#2.jpgObtaining information through a subpoena may be easier said than done. Third-party subpoenas to social networking sites are likely to result in an objection on the grounds that the production of private information would violate the Stored Wire and Electronic Communications Privacy Act (SCA). The SCA prohibits Internet companies from disclosing a user’s private information absent the user’s consent. Therefore, courts have generally held that parties cannot obtain opposing parties’ social networking data through a subpoena to the social networking site.

The SCA gives prosecutors a distinct advantage when it comes to obtaining information from social networking sites. For example, 18 U.S.C. § 2703 allows governmental entities to compel social networking sites to provide the content of electronic communications through a warrant (if the content is no more than 180 days old) or through either a warrant or a court order (if the content is more than 180 days old). The law requires that the government notify the social media user if the information is to be obtained through a court order. The law provides an exception to the notification requirement, however, if the government can show that notification could result in a risk to someone’s safety, flight from prosecution, destruction of evidence, intimidation of potential witnesses, or an investigation being jeopardized. As a result, defense counsel may have difficulty obtaining any information from social media sites, while law enforcement officials, under certain circumstances, may be able to obtain the information without the user even knowing.

Facebook’s position regarding nongovernmental access to user content highlights this disparity.subpoena.jpg Facebook receives so many subpoena requests for user data that it currently dedicates a section of its Help Center to answering questions about civil subpoenas. Nevertheless, Facebook takes the position that it is prohibited by law from disclosing users’ private information and generally moves to quash subpoenas on that basis. Specifically, Facebook argues that the SCA prohibits it from disclosing the contents of a user’s account to any nongovernmental entity through a subpoena. For the most part, this strategy of refusing to disclose user information has been successful.

Originally published in the December 2013 issue of The Champion.

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Social Media Evidence – Authentication

By Hayes Hunt and Brian Kint

shutterstock_140089948.jpgDespite the relative freedom law enforcement officials have to gather evidence, prosecutors and defense counsel alike are limited as to what information they can introduce into evidence at trial. Perhaps the biggest hurdle attorneys face when attempting to admit this information into evidence is authentication.

The openness of social networking sites and the anonymity of the Internet make the introduction of information from social networking sites ripe for authentication challenges. One court in refusing to admit into evidence paper printouts of a MySpace page noted, “[A]nyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.”

Consequently, anyone wishing to introduce social networking data into evidence must first establish a foundation through circumstantial evidence. A wealth of authenticating information can be found in metadata fields. Metadata, commonly described as “data about data,” is descriptive information that is associated with substantive content. There are over 20 unique metadata fields associated with individual Facebook posts and messages — unique ID of a user’s account, the author’s display name, when a post was created, message recipients, etc. Similarly, the two dozen metadata fields associated with each tweet include the poster’s ID, the user’s screen name, and the username of anyone who retweeted. This metadata is an important source of authenticating information. 

For example, in State v. Tienda the court overruled the defendant’s authentication objection and allowed into evidence computer printouts of certain MySpace pages. The prosecution was able to overcome the defendant’s authentication objection by introducing subscriber reports with metadata showing that the accounts were registered to the defendant’s email address, the zip code listed on the accounts was the same as the zip code in which the defendant resided, and one of the pages was titled with the defendant’s nickname. The court found that this information “sufficiently linked [the content] to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.”

shutterstock_167423942.jpgUnfortunately, most social networking sites do not have means by which users can download their own metadata. While sites may allow users to download content, it usually does not capture metadata, and as mentioned earlier, simple printouts of screen captures are unlikely to be admissible without additional authenticating information. Therefore, it is best to hire an outside consultant or subpoena the information directly from the social networking site.

Originally published in the December 2013 issue of The Champion

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Prosecution’s Use of Social Media Research

By Hayes Hunt and Brian Kint

investigation#1.jpgAll of this goes to show that the use of social media in judicial proceedings is not a one way street. Law enforcement and prosecutors are increasingly utilizing social networking sites to build their cases. The U.S. Department of Justice, Computer Crime & Intellectual Property Section, has even produced training materials entitled “Obtaining and Using Evidence from Social Networking Sites.” This guide provides an overview of key social networking sites and instructs investigators on how to obtain and use information from those sites in criminal investigations. Therefore, it is extremely important that criminal defense attorneys gather from their clients lists of all social networking sites the clients use and instruct them to shut down those accounts, or at the very least, cease all activity on those sites.

If a client does not close accounts and cease activity, the results can be severe, as evidenced by United States v. Meregildo. As part of an investigation, the government sought and obtained a warrant for the contents of a suspected gang member’s Facebook page. Rather than subpoenaing Facebook to provide this information, however, the government accessed the information through a cooperating witness who was Facebook friends with the suspected gang member. When viewing the account, the government found messages detailing past acts of violence and threatening future acts of violence towards rival gangs and disloyal gang members. The government used the information from the Facebook page to build its case against the gang member.

facebook.jpgMeregildo not only illustrates just how important it is to keep defendants off social networking sites, but also highlights the different ethical restraints that apply to law enforcement officials and attorneys. For example, ABA Model Rule of Professional Conduct 4.1 prohibits lawyers from knowingly making false statements of fact. Similarly, ABA Model Rule 8.4 prohibits lawyers from engaging in dishonesty, fraud, deceit, or misrepresentation. While these rules do not prohibit lawyers from accessing and monitoring the public portions of social networking sites, they certainly tie their hands when it comes to accessing information that is not public. For example, a lawyer who hires a private investigator to “friend” a witness whose profile is generally private may violate ethical rules unless the investigator clearly discloses an affiliation with the lawyer.

Law enforcement officials, however, are not subject to the same restraints. Indeed, the Justice Department’s materials encourage law enforcement officials to use undercover operations. Law enforcement departments around the country are increasingly using social media to build cases, perhaps even going so far as to create fake profiles to “friend” suspects to gain access to nonpublic areas of their profiles.

Originally published in the December 2013 issue of The Champion

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Juror Misconduct and Social Media

By Hayes Hunt and Brian Kint

eye#1.jpgThe Daugerdas case also shows the importance of continuing juror investigation beyond voir dire. Monitoring jurors’ social networking sites during trial and deliberations can reveal instances of juror misconduct as well. As social networking has become more ubiquitous, it has inevitably penetrated the courtroom. In June 2012, the Judicial Conference on Court Administration and Case Management updated its “Proposed Model Jury Instructions — The Use of Electronic Technology to Conduct Research on or Communicate About a Case.” These model instructions make it clear that jurors are not to use the Internet to conduct independent research on a case or use social media to discuss a case while it is still pending. The instructions specify by name the most widely used social media sites: Twitter, Facebook, Google+, MySpace, LinkedIn, and YouTube.

Still, some jurors have failed to get the point. Perhaps one of the more egregious instances of a juror using social media — and a great example of how that can have real-world implications — occurred in the Dimas-Martinez v. Arkansascapital murder case. During Dimas-Martinez’s trial, a juror repeatedly discussed the case via updates on Twitter even after being specifically instructed by the trial court to refrain from doing so. 

Ultimately, the Arkansas Supreme Court found that such postings constituted juror misconduct that denied the defendant a fair trial and vacated Dimas-Martinez’s murder conviction. The trial court had repeatedly instructed jurors to remain off social networking sites and the Internet during the course of the trial and deliberations, per the Model Jury Instructions. Therefore, the Supreme Court found the juror’s conduct especially troubling. “Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion,” the court stated. Therefore, it reversed the defendant’s conviction and remanded for a new trial.A juror’s disregard for the Model Jury Instructions, however, will not necessarily result in a new trial, as made clear by United States v. Fumo. Former Pennsylvania Sen. Vincent Fumo was tried for fraud, tax evasion, and obstruction of justice. During jury deliberations, a local television station reported on a number of Twitter, Facebook, and blog postings by a juror discussing the case. During deliberations, the juror wrote on his Facebook wall, “Stay tuned for the big announcement on Monday everyone,” hinting that a verdict was imminent. After discovering the post, Fumo moved to exclude the juror and for a new trial, arguing that this and similar posts raised questions about whether the juror received outside influence. However, after conducting an in camera review, questioning the juror, and allowing counsel for the government and the defense to question the juror, the trial court denied the motion.

On appeal, the Third Circuit upheld the trial court’s decision. First, the court endorsed the use of the Proposed Model Jury Instructions warning jurors not to use social media to discuss asocialmedia.jpgn ongoing case. Nonetheless, the court stated that “it does not follow that every failure of a juror to abide by that prohibition will result in a new trial. Rather, as with other claims of juror partiality and exposure to extraneous information, courts must look to determine if the defendant was substantially prejudiced.” It found no prejudice in the instant situation. Instead, it agreed with the trial court’s characterization of the Internet posts as “nothing more than harmless ramblings” and “so vague as to be virtually meaningless.” Consequently, it found no abuse of discretion in the trial court’s decision to deny the motion for a new trial.

Originally published in the December 2013 issue of The Champion

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Trial and Social Media: Researching Potential Jurors

By Hayes Hunt and Brian Kint

jurors.jpgSocial media is a mainstay in daily life. Over a billion people are registered users of Facebook. The Facebook logo and the logos of other social networking giants such as Twitter are quickly becoming as iconic as McDonald’s Golden Arches or Apple’s apple. As the popularity of social networking sites grew, industries scrambled to utilize such a powerful tool. The legal profession is no exception. Unfortunately, the combination of rapidly changing technology and slowly evolving law has created a potpourri of law in which little is settled or clear when it comes to social media and the courtroom. What is clear, however, is that attorneys who understand how social media can help or hurt their clients and have well-defined plans for tackling social media issues will be in the best position to successfully advocate for their clients.

Social media has made the world less private. Twenty years ago, the intimate details of people’s lives were written down in diaries and journals, stashed safely away from the rest of the world under mattresses or in locked drawers. Today, however, these intimate details are shared widely, regularly, and instantly. In fact, social media has created a new psychology in which the constant revelation of opinion and personal information is expected. This is especially true with younger generations who view social media as a way to interact with the world, not merely as a way to stay in touch with friends. Consequently, social media has produced a rich source of unfiltered opinions and intimate details that were inaccessible in past times.

Researching Potential Jurors

Perhaps one of the most powerful ways defense counsel can use this wealth of information from social media is by investigating potential jurors prior to trial and monitoring jurors for potential misconduct during trial. Attorneys can undertake a pretrial search of prospective jurors’ social networking pages — as long as they do not attempt to contact or communicate with the juror.1 In other words, attorneys can investigate potential jurors’ social networking content, but cannot “friend” them, send tweets or emails to them, subscribe to their twitter feed, etc. Nevertheless, the information publically available on a potential juror’s site can give valuable insight into how sympathetic that person may be to the defendant’s case.

Counsel can use this information to avoid having to use preemptory challenges during jury selection. For example, counsel can use social media to investigate a  potential juror’s political affiliations, personal relationships, hobbies, charitable activities, and many other details that give clues as to how that person may feel about a particular case. Counsel can then use that information to formulate voir dire questions that will help expose any juror bias. In this way, counsel can get unsympathetic jurors excused without using valuable preemptory challenges. 

ethics.jpgExpanded access to information about potential jurors outside of the courtroom creates new ethical and practical dilemmas. What if an attorney discovers a case of clear juror bias using social media, such as a potential juror posting that the FBI is a corrupt organization full of nothing but liars? What if a prospective juror’s answers directly contradict the information on social media sites? Must the attorney tell the court? Must the attorney tell opposing counsel? Does the attorney have an ethical duty to do either as an officer of the court?

Arguably, Model Rule of Professional Conduct 3.3, requiring lawyers to display “candor toward the tribunal,” would necessitate that they notify the court of potential juror bias. The applicability of the rule, however, is far from certain. Some jurisdictions have attempted to clarify this ambiguity. For example, New York Rule of Professional Conduct 3.5(d) provides an explicit requirement that a lawyer must reveal evidence of juror misconduct to the court. In 2011, the New York County Lawyers’ Association on Professional Ethics issued an opinion stating that under Rule 3.5(d) lawyers who uncover juror misconduct through social media monitoring must promptly notify the court.

No matter what a lawyer’s ethical duties may be, United States v. Daugerdas highlights the practical effects of failing to disclose juror misconduct. The case stemmed from the tax evasion trial of David Parse and four co-defendants. Parse’s attorneys conducted an Internet search of one of the perspective jurors, Catherine Conrad. Their research revealed a 2010 Suspension Order suspending a Catherine M. Conrad from the practice of law. The name on the jury roll matched exactly the name on the suspension order, including listing the same middle initial. At voir dire questioning, however, Conrad had stated that her highest level of education was “a B.A. in English literature.” Therefore, Parse’s attorneys simply concluded that the prospective juror and the suspended attorney were two separate people.

pinocchio.jpgConrad was ultimately seated as Juror #1. Several weeks into the trial, she submitted a note to the court asking if the jury would be instructed on the doctrine of respondeat superior and inquiring about vicarious liability. No party had used these terms during trial. Conrad’s note led Parse’s attorneys to conduct additional Internet research. Their research again revealed the Suspension Order, but this time it also matched Conrad’s address and household information to information on the Suspension Order. Still, they failed to raise the issue with the court, finding it “inconceivable” that Conrad had lied during voir dire.

The jury reached a verdict at the conclusion of trial, convicting four of the five defendants, including Parse. Several days after the jury rendered the verdict, Conrad sent a letter to the government attorneys who had prosecuted the case; she commended them on the “outstanding job” they did on behalf of the government. The government eventually disclosed this letter to the court and defense counsel. This letter led Parse’s attorneys to conduct even deeper research into Conrad’s background. This research revealed that during voir dire, Conrad had lied extensively about her educational, personal, and professional background, including failing to disclose her legal education, her suspension from practicing law, and her extensive criminal background. As a result, several defendants moved for a new trial based on juror misconduct.

Ultimately, the court granted the motion as to all defendants except Parse. The court ruled that based on their preliminary investigations, Parse’s attorneys knew or should have known that Conrad had lied during voir dire. Further, their failure to bring this potential misconduct to the court’s attention waived Parse’s right to challenge the partiality of the jury based on juror misconduct. A defendant who knows of juror misconduct but fails to disclose it, the court reasoned, essentially has a risk-free trial. Therefore, “a defendant waives his right to an impartial jury if defense counsel were aware of the evidence giving rise to the motion for a new trial or failed to exercise reasonable diligence in discovering that evidence.”

The Daugerdas decision should not dissuade defense counsel from conducting Internet anddisclosure.jpg social media research into potential jurors. What it should do is convince defense counsel that if the research uncovers potential juror misconduct, it should be disclosed to the court immediately. If there is any doubt, such as the identity issue in Daugerdas, counsel should dig deeper until that doubt is resolved one way or another. If it is not resolved, the attorney should err on the side of disclosure. Counsel should not risk inadvertently waiving a client’s fundamental rights by failing to raise the issue with the court.

 Originally published in the December 2013 issue of The Champion.

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Judges as Board Members: New Pa. Code of Judicial Conduct

By Hayes Hunt and Joshua Ruby

bench.jpgThe Pennsylvania Supreme Court recently adopted a new Code of Judicial Conduct. Effective July 1, 2014, new rules will apply to the extrajudicial activities for Pennsylvania judges. Businesses and nonprofits need to accommodate these changes to ensure that their board members from the judiciary comply with the code and to avoid adverse consequences in litigation. Litigation is costly enough for the private sector and defending against motions for disqualification will only add to that bill. Even organizations without judges serving as board members need to be aware of the potential impact of charitable donations and campaign contributions on their interests in litigation under the new code.

 The New Judicial Code

The new code generally takes a much more restrictive view of the outside activities in which judges may permissibly engage. Major changes that in-house counsel need to know about are formerly recommended, now mandatory, restrictions on board service for both businesses and nonprofits and the formerly recommended disqualification regime that the new code makes mandatory.

First, with exceptions for closely-held family corporations and family investment vehicles, Rule 3.11 provides that “a judge shall not serve as an officer, director, manager, general partner, adviser, or employee of any business entity.” The commentary to the rule admits of some flexibility, such that the judge/board member “may complete the term of service if such may be accomplished in 12 months or less,” “so long as continuation will not interfere with the proper performance of judicial duties.”

Second, the code does not exempt nonprofit boards from this change. Rule 3.7 of the code, which generally governs judges’ civic and charitable activities, now directs that judges “shall not serve [as a board member] if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.” Rule 3.7’s comments contain specific cautions against previously common affiliations for judges: “What may have been innocuous at one point in time may no longer be so. Cases in point are boards of hospitals and banks. Judges must constantly be vigilant to ensure that they are not involved with boards of organizations that are often before the court.”

Finally, although not specifically related to board service, the new code also departs significantly from the old code with respect to recusal. The new code’s Rule 2.11 requires, and does not merely recommend, recusal “in any proceeding in which the judge’s impartiality might reasonably be questioned.” The new code further specifies that one such circumstance arises when a party or lawyer “has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case.” 

surfboards.jpgEffect on Organizations with a Judge on the Board

Counsel at any organization—whether for-profit or not-for-profit—with a judge presently serving on its board need to evaluate how to proceed with that judge’s presence on the board in the face of the new code.

A non-family business with a judge on its board will have to begin the process of replacing him or her. The new code forbids all such service outside closely-held family businesses and family investment vehicles. Only if the judge’s remaining term is less than one year does the code permit meaningful continuation of the board service: the code’s comments allow the judge to finish the term if the limited additional service will not interfere with the judge’s duties. In such a circumstance, in-house counsel will have to help the judge/board member assess whether finishing the remaining term of service comports with this standard.

A not-for-profit with a judge on its board will have a more challenging review of whether the judge should continue to serve. The rule forbids board service for organizations that regularly engage in proceedings that the judge ordinarily hears or will regularly appear in court as a party. The code’s commentary specifically mentions hospitals and banks as organizations that will often meet this standard and preclude judges from serving as board members. Other organizations with large holdings in intellectual or real property and plenty of employees—universities, for example—may also appear in court regularly enough to meet this standard.

If counsel and the judge/board member determine that the judge will stay on the non-profit’s board, both will have to pay more attention to conflicts of interest now that disqualification is mandatory for such conflicts. One of the leading cases interpreting the federal judicial disqualification statute’s mandatory disqualification regime—Liljeberg v. Health Services Acquisition, 486 U.S. 847 (1988)—arose from a judge who served as a trustee of a university presiding over the bench trial of a real estate dispute between the university and a third party.

Business’s Charitable or Political Contributions?

Even organizations without a judge currently serving on their boards need to be aware of the new code’s provisions regarding disqualification. These provisions may affect a business’s position in litigation based on its charitable contributions to an organization with a judge serving as a board member or its political contributions to candidates for judicial office.

blindjustice.jpgA Texas case from 2012 illustrates the potential for charitable giving to impact seemingly unrelated ongoing litigation. At the time, American Airlines and Sabre Holdings were engaged in extensive litigation and on the eve of trial in Texas state court. Sabre discovered that the presiding judge served on the board of a charity that worked with at-risk youths in Fort Worth and that American had made contributions to the charity. On Sabre’s motion, another judge ordered the presiding judge disqualified based on the appearance of impropriety that American’s charitable contributions created and reassigned the trial to another judge.

Given the new mandatory disqualification standard, this type of challenge is now more likely to succeed and more likely to be filed in Pennsylvania. In-house counsel need to be aware of their companies’ activities in the community in order to prevent such eleventh-hour revelations that might delay or disrupt ongoing litigation or draw disqualification motions requiring additional efforts.

Similarly, the new code mandates disqualification of judges where one of the litigants or counsel has made meaningful contributions to the judge’s campaign for office. The relationship between political contributions and judicial disqualification has remained in the spotlight since the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal, 556 U.S. 868 (2009). There, a company planning to appeal a $50 million damages verdict spent $3 million on behalf of a candidate for the Supreme Court of Appeals of West Virginia, in addition to donating the statutory maximum to his campaign committee. The candidate won the election and, as a justice of the court, ultimately cast the deciding vote to reverse the $50 million verdict against the corporation. The U.S. Supreme Court later concluded that the justice’s participation in the case violated the due process clause of the Constitution.

But the new code sets a much lower standard for disqualification based on campaign contributions than the “extraordinary contributions” that the U.S. Supreme Court concluded triggered constitutional protections. That means that corporate counsel can expect greater scrutiny when their companies appear before judges to whom their companies, or their officers and directors, have contributed in appreciable amounts. Accordingly, as with charitable contributions, in-house counsel need to be aware of the political activities of their organizations, officers and directors in order to prevent disruption and delay in litigation and the expense of defending against disqualification motions.

The new Code of Judicial Conduct does a great deal to restrict potential conflicts of interest for judges and promote the fair administration of justice. But in-house counsel must know about and adapt to these changes, both to help their judicial board members stay within the new code’s boundaries and to make certain that their board members, charitable donations and political contributions do not adversely affect their interests in litigation.

Originally published in The Legal Intelligencer on January 22, 2014.

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Posted in The Bench

Less Discovery? Proposed Amendments to the Federal Rules of Civil Procedure May Change the Scope of Discovery As We Know It

By Thomas G. Wilkinson, Jr. & Thomas M. O’Rourke

DailyNews.jpgAccording to some estimates, discovery costs account for between 50 and 90 percent of total litigation costs. In an attempt to streamline federal discovery, the Judicial Conference Committee on Rules of Practice and Procedure (the “Standing Committee”) has published proposed amendments to the Federal Rules of Civil Procedure.  Unlike previous proposed amendments, which have sought to broaden discovery, these proposed rules significantly restrict the scope of discovery and the presumptive number of discovery requests and depositions available. 

If the proposed amendments are adopted, discovery requests would be limited to the parties’ “claims and defenses” and tailored to be:

proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.


In addition, absent agreement between the parties or a court order, parties would be limited to 5 depositions, 15 interrogatories and 25 requests for admission.[1]  

The proposed amendments represent an important step in the effort to control pretrial costs and delay in federal litigation.  However, the restrictions imposed on the scope of discovery and the availability of discovery tools have been subject to criticism.  One critic, U.S. Senator Christopher Coons of Delaware, Chair of the Subcommittee on Bankruptcy and the Court, predicted that these limitations would have a negative impact in smaller cases and “could mean that responsible parties will remain unaccountable—not because the plaintiff’s allegations are untrue, but because plaintiff lacks the evidence to prove them.”  See Todd Rugur, Discovery Rule Changes Greeted with Skepticism in Senate, Nat’l Law J. (Nov. 11, 2013). 

For example, consider the following hypothetical case: A history professor (“Plaintiff”) brings a federal employment discrimination action alleging that her former employer, a university, denied her tenure because of her gender.  The university’s decision was made by a three-member panel, but it was based on the recommendation of a committee composed of five faculty members in the history department.  Her theory is that she was held to a different standard than similarly situated male professors who received tenure and that certain members of both the committee and the panel held gender stereotypes about her that impacted their decision.  She also alleges that her direct supervisor, who was not on the committee or the panel, gave her negative performance reviews due to her gender, which were considered by the committee and the panel.

As discussed below, under the proposed amendments, Plaintiff could face some difficulty obtaining the necessary discovery to sustain her claim. 

The Shifting Scope of Rule 26railroadtracks.jpg

Under the current rules, discovery is limited by the principle of proportionality.  Fed. R. Civ. P. 26(b)(2)(C)(iii).  The proposed amendments, however, take this familiar limiting principle and use it to define the scope of discovery.  See Proposed Amendments, at 296.  This is a significant rule change that may increase discovery costs and undermine the pursuit of legitimate discovery in federal cases.

“Proportionality” is an amorphous standard that will inevitably lead to unpredictable and wide-ranging interpretations.  For example, before the parties have exchanged responsive information, it is difficult to assess how beneficial a discovery request will be “in resolving the issues” or “the likely benefit of discovery” requests.  Early in the discovery process, rather, the “amount in controversy” and the “importance of the issues at stake” will likely be the predominate factors used to assess the proportionality of a request.  

Judges and parties may significantly disagree about the proper scope of discovery in a case that is perceived by the court to be worth X dollars when the party values the same case at Y dollars, or that involves a particular issue that may generate important precedent for similar cases in the future.  Differing views about the reasonable extent of discovery given the money or issues at stake will yield varying results and encourage early and expensive motion practice regarding the basic parameters of discovery.  For instance, how “important are the issues at stake” in the Plaintiff’s case?  The answer depends on who you ask. 

Moreover, suppose Plaintiff is seeking $300,000 in the lawsuit.  Is she entitled to discovery regarding all tenure decisions made by the university within the last 5 years or will her request be limited in time and scope?  What about e-mails sent or received by the members of the panel, the committee or her supervisor around the time of the tenure decision?  Under the proposed amendments, Plaintiff’s relatively low damage number could inhibit her ability to fully investigate these issues and potentially prevent her from uncovering critical evidence. 

Restricting the Number of Depositions

The Standing Committee’s proposed reduction to the presumptive number of depositions is based, in large part, on statistics reflecting that “less than one-quarter of federal court civil cases result in more than five depositions, and even fewer in more than 10.”  Proposed Amendments, at 268.  These statistics, however, are drawn from the number of depositions taken by attorneys in closed cases that featured at least one deposition.  This data, therefore, includes cases that would have produced more depositions but were resolved early through settlement or motion practice.  Further, with one exception, these statistics also reflect that more than five depositions are taken by one side or the other in 40% of cases involving an expert and non-expert deposition.

Considering these issues, the accuracy of the Standing Committee’s conclusion that the new presumptive limit will have “no effect in most cases” is subject to debate.  Id.  at 268.  If courts view the presumptive limit as an inflexible barrier to more extensive discovery and adopt a “one size fits all” approach to deposition discovery, parties will be denied necessary and relevant evidence.  This possibility may encourage some parties to employ the presumptive limit as a tactical device to stall and constrict legitimate deposition requests. 

rulebook.jpgIndeed, in our hypothetical case, there were eight individuals involved in the decision to deny Plaintiff tenure.  This number does not include any of Plaintiff’s other colleagues, her supervisor or potential expert witnesses.  With a presumptive limit of five depositions, Plaintiff could be significantly limited in her ability to depose material witnesses.  The university, for example, could convince the Court that an employment discrimination case involving $300,000 does not justify extending the presumptive limit and leave the Plaintiff without important information and ammunition for purposes of settlement or trial.

Instead of cutting the presumptive number of depositions in half, it may be more appropriate to amend Rules 30 and 31 to expressly allow parties to file motions to limit the number of an opponent’s depositions based upon the proportionality principles set forth in Rule 26(b)(2)(C)(iii).  This compromise would enable litigants such as Plaintiff to take more than 5 depositions without having to seek the approval of their opponent or the court, but where warranted provide a vehicle for a party to urge the court to restrict the scope of deposition discovery.

Restricting the Number of Interrogatories 

Similarly, the proposed amendment to Rule 36 restricts the presumptive number of interrogatories available, reducing the number from 25 to 15 (including subparts).  In all but the most straightforward cases, 15 interrogatories may be insufficient.  Indeed, the Plaintiff in our hypothetical case would be hard pressed to compose 15 interrogatories to cover: the university’s policies and procedures for making tenure decisions; the decision reached in her case; the individuals involved in that decision; and the university’s tenure decisions with respect to similarly situated male professors.

As a result, parties like Plaintiff may have to resort to early and expensive motion practice to secure additional interrogatories, particularly considering that other discovery tools, such as depositions, are not as freely available under the proposed amendments.  If applied inflexibly, this presumptive limit will distract the parties (and the court) from the substantive issues in the case and unnecessarily constrict legitimate discovery of relevant evidence.

The proposed amendments, therefore, if adopted, should clearly communicate that the presumptive limits are not a “one size fits all” approach to the discovery needs of all cases or cartoon.jpg particular classes of cases. 

The Proposed Amendments Will Impact More Than Just Plaintiffs

The proposed amendments pose a significant challenge for all federal litigants, not just plaintiffs.   Although the above hypothetical involved a plaintiffs’ case, defendants may encounter similar hurdles in securing necessary discovery, particularly in cases involving multiple plaintiffs or witnesses, such as in class or collective actions.  If the new presumptive limits for depositions and written discovery are applied inflexibly, defendants may be unable to secure the information necessary to mount an adequate defense.  While the proposed amendments have for the most part been welcomed by defense and corporate counsel, the additional motion practice necessary to obtain relevant information may in some cases serve to drive up rather than reduce costs and further delay resolution of cases.

For those interested in weighing in on the proposed amendments, the Standing Committee is accepting public comments until February 15, 2014.  Comments may be submitted online at by mail to:

The Committee on Rules of Practice and Procedure

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, DC 20544

 [1] Along with restricting the scope of discovery, the proposed amendments also clarify the standard for imposing sanctions for a party’s failure to preserve discoverable information.  Under the proposed amendments, Rule 37(e) would be rewritten to reflect that only willful or bad faith destruction of evidence can result in sanctions, unless the “opposing party’s actions . . . irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.”  Id. at 315.  This change is designed, in part, to ensure that potential parties do not engage in unnecessary and expensive “overpreservation” for fear of sanctions in future litigation.


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



 121109Thomas_O'Rourke0142.jpgThomas M. O’Rourke is an Associate at Cozen O’Connor, where he practices in the Commercial Litigation Department (  For a more detailed analysis of the proposed amendments, see their full length article in the Pennsylvania Bar Association Federal Practice Committee Newsletter for November 2013.

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Posted in Discovery
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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