Tip To Jurors: Leave Heroin Stash At Home While Sitting On Case

By on September 26, 2013

As reported by the New York Law Journal on September 19, 2013, Manhattan Supreme Court Justice Manuel J. Mendez determined in Matter of Esteban v. Department of Education of the City School District of the City of New York, 651904/13,  that a high school teacher in a New York City public school was fit to continue working in the classroom despite having been caught red-handed with twenty small bags of heroin while attempting to enter Manhattan Supreme Court, where he was serving on jury duty.

Judge Mendez set aside an arbitrator’s determination that the teacher was unfit calling the ruling “excessive and shocking to this Court’s sense of fairness.” After all, reasoned Judge Mendez, there was no evidence that any students were harmed as a result of the teacher being busted bringing heroin to court.

The October 2012 incident launched stories in all of New York’s major newspapers including the Daily News, which ran an article with the headline, “Junkie High School Teacher Sent to ‘Rubber Room’ After He Was Busted Bringing Heroin to Court.” The arbitrator concluded that the teacher had subjected both himself and the Department of Education to “extremely widespread ridicule” which compromised his ability to retain the respect of students or his ability to teach effectively. Moreover, he found that the Department of Education had no way of determining whether the teacher had brought the same drugs into a school building posing a risk to students.

Corporation Counsel Michael A. Cardozo summed up Judge Mendez’s opinion succinctly, “We cannot fathom how a teacher who took twenty bags of heroin into a court house is fit to stand in front of a classroom and teach the City’s schoolchildren.” Surely, it cannot be comforting to the parents of students at the Williamsburg High School for Architecture and Design that their children’s teacher did not have the sense to leave his heroin stash at home while serving on jury duty.

What is remarkable about the court’s ruling was the finding that the arbitrator’s decision was “excessive and shocking.” Apparently, overturning the arbitrator’s determination was not even a close call. Taking this teacher out of the classroom was “excessive and shocking.”

After all, Judge Mendez credited the teacher’s testimony that he only indulged his heroin habit over the weekend– never on school days. Moreover, the teacher claimed he had gone through a heroin detox treatment and had been off heroin for a long time prior to his arrest, and had merely “forgotten” that he had twenty bags of heroin in his backpack when he reported for jury duty.  Was this the backpack he was toting to school every day prior to his arrest?

Filed under heroin, Hon. Manuel J. Mendez, Interesting Stuff, jury duty, Matter of Esteban v. Department of Education of the City School District of the City of New York, Williamsburg High School for Architecture and Design Tagged with

Hand Over The Cash Or The Hard Drive Gets It!

By on September 25, 2013

In January 2013, GlaxoSmithKline (“GSK”) filed a complaint in New York state court alleging that its e-discovery vendor, Discovery Works Legal Inc., was “holding hostage over 20 terabytes of GSK’s most sensitive and confidential data, and threatened to withhold and destroy the data" unless GSK paid a ransom of more than $80,000. GSK is the second largest pharmaceutical company in the world by revenue, employing over 100,000 people in 117 countries. How could a mere  e-discovery vendor hold GSK’s data hostage?

Reportedly, Discovery Works is in control of roughly 3.75 billion pages of GSK documents in “unknown” locations. As Law360 reporter Andrew Strickler summarized the threat (and thereby inspired the title of this article)  “Hand over the cash or the hard drive gets it!”

In the case, GlaxoSmithKline LLC v. Discovery Works Legal Inc., et al., Case No. 650210/2013, Judge Shirley Werner Kornreich, who sits in New York County’s Commercial Part, sounded a note of caution, in a ruling on the case on September 25, 2013,  about the customary practice of corporations and law firms to outsource their electronic discovery to e-discovery vendors. She said that GSK’s experience with its vendor was a “cautionary tale.” She noted that GSK’s data is stored in far flung locations in a raw, uncoded form that is not indexed in any way, which makes it hard to retrieve without considerable IT work.

“It’s a frightening thought,” she said, that a multi-national company like GSK could find so much of its data in peril due to an e-discovery vendor’s failure and/or refusal to provide the data in usable form. Judge Kornreich urged GSK and others to rewrite their contracts to give themselves more protection with e-discovery vendors by requiring them to keep an index of all of the data the vendors are managing for the client.

However, having a good contract with the vendor is just the start. A company is legally obligated to be able to produce all relevant discovery, including ESI, in litigation. What happens when the vendor is unwilling or unable to provide the client with the data required for discovery? What if the discovery vendor shuts its doors? Will the company be hit with spoliation of evidence sanctions? How would Judge Shira Scheindlin respond if presented with a motion for spoliation sanctions? The short answer is that it probably depends on the circumstances.

But one thing is clear.  I would not want to be the lawyer who retained a problem-some vendor for my client. What due diligence should a law firm perform to ensure that the discovery vendor is a responsible choice for a client? Clearly, the lowest bid cannot be the determinant of what e-discovery vendor is selected, particularly after case,  Additionally, I would be unlikely to hire a small firm (no matter how brilliant and innovative the principals) because the firm’s stability and solvency over the long haul is a critical consideration. 

As Michael G. Van Arsdall at Crowell and Moring wrote recently: “There is a very low likelihood such a hostage situation would ever arise with the large number of reputable vendors that occupy the e-discovery space.” That said, Mr. Arsdall recommends some actions that companies can take to mitigate the risk, or, alternatively, provide the company or the law firm the opportunity to switch e-discovery vendors, if necessary. These actions include:

1. Insisting that the original collection media provided to the vendor (e.g., hard drives) be returned to the law firm or company for safekeeping;
2. Maintaining a copy of all production sets produced;
3. Negotiating reasonable archiving fees upfront, and require that at the end of the matter (or at reasonable intervals during the engagement) an archive set of the data is provided to the company or law firm for safekeeping; and
4. Requiring the vendor to certify that it has destroyed or returned all the company’s data at the conclusion of the matter or at the company’s or law firm’s instruction.

We are all increasingly tied at the hip to our e-discovery vendors in one form or another today. The e-discovery vendor is an important member of the litigation team. If, for any reason, the e-discovery vendor falters in its obligations, the entire team may suffer adverse consequences.
 

Filed under cautionary tale, Discovery Works Legal Inc, E-Discovery, e-discovery vendor, GlaxoSmithKline, GlaxoSmithKline LLC v. Discovery Works Legal Inc, holding hostage, Kornreich', ransom, Shirley, Werner Tagged with

Federal Courts Uniformly Embrace Climate Science

By on September 18, 2013

A visitor to Capitol Hill might come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is caused by human activity.  But one place where there are few such questions is the courts.

In a compelling analysis of federal court decisions addressing climate change issues,  Michael B. Gerrard, Professor of Professional Practice and director of the Center for Climate Change at Columbia Law School, argues persuasively that climate change science has been unanimously accepted by the courts (with one piddling exception) and  the basis for several significant decisions.  Anyone in the position of having to argue the acceptance of climate science in a court case should take note of Professor Gerrard’s article, “Court Rulings Accept Climate Science“, which appeared in the New York Law Journal on September 12, 2013, which contains lengthy citations to the relevant case law.

In an earlier article on this blog, we discussed how the court’s embrace of climate change science, relied upon by EPA, had been largely overlooked by commentator writing about the  District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA,   In that article, we observed that the decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century.

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In reaching its determination in that case, the three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.

 

 

Filed under Climate Change, Climate Change Science, Michael B. Gerrard, U.S. Courts Tagged with

Ernest Hemingway Look-alike Denied Trial Adjournment

By on September 10, 2013

In an order dated, June 22, 2012, USDJ Steven D. Merryday (Tampa, FL) carefully considered counsel’s motion to suspend trial.  The lawyer’s client, Jerry Alan Bottorff, the court noted, "stands accused of murder-for-hire, conspiracy to commit murder-for-hire, and a firearm offense." Earlier, the parties had requested a special setting for the trial to begin.

As the basis for his application, counsel stated in his papers:

Undersigned counsel, a perennial contestant in the Ernest Hemingway Look-alike Contest, is scheduled to appear as a semi-finalist at Sloppy Joe’s Bar in Key West, Florida at 6:30 P.M. on Friday, July 20, 2012.

In order to be able to be in Key West at the appointed hour, undersigned counsel has planned to depart St. Petersburg after the trial recesses on Thursday, July 19, 2012, and drive toward Key West[,] arriving on July 20, 2012.

Undersigned counsel has secured a block of six rooms to accommodate family, friends, and fans and has had to pay non-refundable deposits.

Demonstrating both a sense of humor and a keen appreciation for literature, the court observed:

Between a murder-for-hire trial and an annual look-alike contest, surely
Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial.

At his most robust, Hemingway exemplified the intrepid defense lawyer:

He works like hell, and through it. . . . He has the most profound
bravery. . . . He has had pain[] and the kind of poverty that you don’t
believe[;] he has had about eight times the normal allotment of
responsibilities. And he has never once compromised. He has never
turned off on an easier path than the one he staked himself. It takes
courage.

Dorothy Parker, The Artist’s Reward, THE NEW YORKER, Nov. 30, 1929, at 28-30 (describing
Hemingway). Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor
of solemn duty.

Or, at least, “Isn’t it pretty to think so?”

The court’s ruling on the motion?  "Best of luck to counsel in next year’s contest."

 

Filed under Dorothy Parker, ernest hemmingway, ernest hemmingway look-alike contest, He works like hell, and through it, Hon. steven d. merryday, Interesting Stuff, motion to suspend trial Tagged with ,

Effort Mounted To Reverse Colorado Lone Pine Ban

By on September 4, 2013

A substantial effort has been mounted to urge the Colorado Supreme Court to reverse the intermediate appellate court’s ruling on July 3, 2013 in Strudley v. Antero Resources Corp., which determined  that Lone Pine Orders are prohibited under Colorado law.  In so holding, the Strudley court reversed a trial court ruling that had dismissed plaintiffs’ case for failing to provide the court with any competent prima facie evidence of causation.  We discussed the appellate court holding in a recent article, "Does the Lone Pine Still Stand?"

By way of background, Strudley is a complex toxic court action involving numerous claims by the plaintiffs premised on allegations that the defendants committed tortious acts while hydrofracking natural gas oils. The central issue in the case was whether the defendants caused plaintiffs’ alleged injuries, which the plaintiffs vaguely described as “health injuries” from exposure to air and water contaminated by “hazardous gases, chemicals and industrial waste”. 

The trial court, cognizant of the significant discovery and cost burdens presented by a case of this nature, entered a Lone Pine Order requiring plaintiffs to make an early prima facie showing of exposure and causation. When plaintiffs failed to meet this burden, the trial court dismissed plaintiffs’ case. A Lone Pine Order typically requires a plaintiff to present sufficient evidence prior to full discovery to establish a foundational evidentiary showing of one or more critical elements of the claims, or to risk possible dismissal.

In the wake of this decision, the Colorado Supreme Court has been urged by the bar to take a more expansive view of what case management tools are available under Colorado law. The Colorado Defense Lawyers Association, the Colorado Civil Justice League (“CCJL”) and the American Petroleum Institute (“API”) have all filed amicus curiae in support of the use of Lone Pine Orders in Colorado.

In particular, the memoranda of CCJI and API provide excellent surveys on the extent to which state and federal courts throughout the United States have embraced Lone Pine Orders as an important case management tool. These well-written briefs should be read by toxic tort practitioners with an interest in case management.  In a well-crafted brief authored by Snell & Wilmer, CCJL argues that, if permitted to stand, Strudley will chill efforts by trial courts to exercise active case management. 

As the basis for its argument, CCJL relies upon the Colorado Supremes Court’s June 2013 decision in DCP Midstream, LP v. Anadarko Petroleum Corp, in which the court announced that trial courts should consider cost-benefit and proportionality factors in managing discovery. In the decision, the court held  that Colorado law reflects “an evolving growing effort to require active judicial management of pretrial matters to curb discovery abuses, reduce delay, and decrease litigation costs. The Committee Comments to the revised Rule 16 similarly recognize that “where a case is complex or requires special treatment, the Rules provide flexibility so that the parties and Court can alter the procedure.”  Thus, pursuant to revised Rule 16 and Supreme Court precedent, the Court of Appeals should have upheld the use of Lone Pine.

In arguing for a case management scheme that would permit the Colorado trial courts to apply Lone Pine, CCJL cautions that Lone Pine is hardly a hammer that should be arbitrarily or routinely invoked and is not by any means a substitute for summary judgment.  In summary, CCJL argues that Strudley is bad precedent that will only obstruct the creativity of trial judges in managing their cases. 

API’s excellent amicus brief, submitted by Steptoe & Johnson, also argues that Strudley is not consistent with the DCP Midstream. API emphasizes that toxic and mass tort cases present unique case management challenges. 

Cases involving many parties on the plaintiffs’ or defendants’ side often feature broad allegations of liability that are conclusory and lacking in detail, or are based on the parties’ beliefs or dramatic human situations, rather than competent evidence. Allegations of injuries may include every conceivable injury without regard to exposure or actual liability, and without specific information relating to each plaintiff. 

Thus, argues API, the parties and the courts are often required to spend enormous amounts of money, time and energy litigating these cases with respect to every element and defense, although one issue is often dispositive. When that single issue can be dealt with out front, it often results in dismissal or, alternatively, an early mediated settlement.  As the New Jersey court observed in the original Lone Pine case, many defendants understandably will settle such claims, even if meritless, rather than spend the hundreds of thousands of dollars necessary for discovery.  The plaintiff bar despises Lone Pine because it disincentivizes defendants from paying substantial nuisance value settlements in cases of questionable liability.

Considering the jurisprudential strength and logic of the amici curiae arguments, we believe that the Supreme Court will hold that Lone Pine is alive and well in Colorado and reinstate Judge Frick’s trial court decision.   

Filed under American Petroleum Institute, Amicus Curiae, Case Management, Colorado Civil Justice League, Colorado Defense Lawyers Association, Colorado Supreme Court, DCP Midstream, LP v. Anadarko Petroleum Corp, Lone Pine, Lone Pine Order, Strudley v. Antero Resources Corp, Toxic Tort Litigation Tagged with ,