RIP Judge Maxine Cohen Lando

In honor of the passing of Judge Maxine Cohen Lando, we will not be doing a 3d DCA Watch today.

Judge Lando, a lifelong resident of Miami-Dade County, was a firebrand old school kind of judge who always -- and I mean always -- had her heart in the right place.

She will be sorely missed.

Please pay your respects on Friday:

Services will be held on

Friday, March 2, 2012 -- 11:00 a.m.

Temple Bet Shira

7500 S.W. 120 Street

Miami, Florida  33156

                                           (305) 238-2601

"Boilermakers for Everyone!"

When I grow up I want to be just like Bill Scherer:

Broward Circuit Judge Jeffrey Streitfeld spent the day Tuesday setting ground rules for a trial that was scheduled to begin with jury selection Thursday.

But Scherer told the Daily Business Review after court adjourned that a settlement had been reached and he was celebrating at a bar with boilermakers.

Boilermakers?

I haven't had one of those since college, but on the other hand if I just made $50 million for my firm I'd be drinking boilermakers, haymakers,  widowmakers, salt and pepper shakers, you name it -- Bill's buying.

$170 Million Probably Meant the Bank Had Some Good Defenses!

Let's see, if the investors were seeking $186 million in losses (plus the potential for punis) and TD Bank settled for $170 million, I'm guessing the defense case for the bank didn't look too good:

The settlement, reached last week by the investors' Fort Lauderdale lawyer William Scherer, breaks down this way: TD agreed to pay the investors $100 million for their losses and $20 million in interest on their original claim amount. Their attorney's law firm, Conrad Scherer, will receive $50 million in fees.

Scherer is receiving $50 million?

It took a while, but Rothstein finally did something good for his fellow lawyers.

Did Dave Samson Really Sell the Marlins at Team Awards Banquet?

That's what this lawsuit, filed by Fort Lauderdale attorney Todd Payne, seems to suggest -- am I reading this right?

Here's a little back story by CBSsports.com:

Apparently, back in February of 2008, there was some sort of awards banquet with an auction in Miami. Marlins president David Samson -- who doesn't own the team, mind you -- said the first item up for bid was the Marlins and he'd sell them for $10 million, seemingly as a joke. And a man said he'd bid the $10 million, which was surely seen by everyone in attendance as furthering the joke.

Instead, Omeranz and Landsma Corporation in Florida is now suing the Marlins, believing it bought the Marlins for $10 million and that the Marlins have breached contract. Seriously, here's the court filing PDF, via Sportinlaw.com. 

Surely no one hates Dave Samson's pedestrian and obvious movie reviews more than me, but is there another side to this story?

(There better be.)

Or maybe the rubes in the crowd just don't get his sophisticated sense of humor?

These Three Words.

 I certainly hope every lawyer by now has seen the fantastic HBO documentary The Loving Story, which brilliantly explores the cultural and legal landscape behind the landmark 1967 Supreme Court case overturning state bans on interracial marriage (though it took Alabama 33 more years to repeal theirs!).

I was struck by the words of the unanimous Court that appear on screen at the end of the documentary:

Under our Constitution, the freedom to marry, or not marry, a person of another the same race sex resides with the individual and cannot be infringed by the State.

See how easy that is?

So You Want to Be a Federal Judge?

Now is the time:

Pursuant to the instructions set forth in the attached letter from Senator Bill Nelson and Senator Marco Rubio, dated February 16, 2012, the Florida Federal Judicial Nominating Commission is now accepting applications for the following position:

• U.S. District Judge, Southern District of Florida

This vacancy was created by the Senate's recent confirmation of U.S. District Judge Adalberto Jordan to the U.S. Court of Appeals for the Eleventh Circuit.

The revised Rules of Procedure for the Judicial Nominating Commission, dated April 11, 2011, application forms with incorporated instructions, and the names and addresses of the members of the Commission, dated February 14, 2012 are available at the following websites: 1) The Florida Bar (www.floridabar.org), 2) District Court for the Northern District of Florida
(www.flnd.uscourts.gov), 3) District Court for the Middle District of Florida (www.flmd.uscourts.gov), and 4) U.S. District Court for the Southern District of Florida (www.flsd.uscourts.gov). In addition, these materials may also be obtained from the Commission's Statewide Chair John M. Fitzgibbons, The Law Offices of John M. Fitzgibbons, 707 North Franklin Street, Suite 700, Tampa, FL 33602, Telephone: (813) 221-8800.

Completed applications must be received by the Commission's Statewide Chair and each Commission member in the manner specified by the Rules of Procedure by 5 p.m., Monday, March 26, 2012. Applicants who are selected by the Commission for personal interviews will be interviewed on Friday, April 27, 2012, at the Judge's Conference Room, 14th Floor, Wilkie D. Ferguson, Jr. U.S. Courthouse, 400 North Miami Avenue, Miami, Florida. The names of the applicants who are selected for personal interviews with the Commission, as well as the interview times, will be published on each website on or before April 18, 2012.

In other news,  this guy is the reason why everyone has to show up and support the retention of Justices Quince, Lewis, and Pariente at the fundraiser next week:

The retention referendum deciding whether Justices Fred Lewis, Barbara Pariente and Peggy Quince are to keep their jobs for the next six years — or whether Gov. Rick Scott gets to replace them —appears likely to become the most hotly contested judicial elections in more than 20 years.
No justice or District Court of Appeals judge has ever been voted off the bench, since Florida switched from competitive elections to the appoint-and-retain model in 1976, but none has faced the kind of organized effort being mounted by a Central Florida group.

"I wouldn't want a judge thrown off the bench for one bad ruling," said Jesse Phillips, a Winter Park computer programmer who heads Restore Justice 2012. "But what we've seen on the Florida Supreme Court is a pattern of judicial activism."

Phillips cited court rulings removing the Legislature-sponsored Health Care Freedom Act from the ballot in 2010 — a corrected version is back on this year's ballot — and a 2000 ruling that struck a death-penalty constitutional amendment after voters had approved it.

Phillips said his only previous political experience was an unsuccessful 2010 effort to deny Justices Jorge Labarga and James E.C. Perry new six-year terms. Both men survived, but by about 6 percent less than Justices Charles Canady and Ricky Polston, who were not challenged for retention.
"It was purely a grass-roots campaign in just a few weeks, and we were able to move the results by six or eight points," said Phillips. "What we're running is a voter-education campaign. We're not telling people to vote yes or no, but laying out the record of the judges."

Let's hope this doesn't become a trend.

Finally, Paul Calli continues to happen.

Happy Friday!

Decryption of Hard Drive Blocked

Password Decrypt Hard Drive

Federal Defense Attorney just won a case where the defendant was ordered to decrypt a hard drive the government had lawfully seized. Feds tried to force a defendant to give up a password used to encrypt several hard drives using TrueCrypt. 

Case Excerpts: "The Fifth Amendment protects Doe’s refusal to decrypt and produce the contents of the media devices because the act of decryption and production would be testimonial . . . ." 

 "We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED"

Congrats to Attorney Chet Kaufman 

 Complete Opinion is Here.

Decryption an Issue? Call Casey at 813-222-2220

Mixed Verdict in Chow v. Chow Hand-Pulled Noodle Throw Down!

Seems like a lot of litigation, time and expense for a half million recovery, particularly where a counterclaim succeeded in roughly the same amount.

Time to spin it!

Hmm, I'd Like to Write Something Positive Today.

But I can't get some of these creepy sexts out of my mind:

itsjustme24680: Good morning!

Fernandez-Karavetsos replies, "Leave me alone."

itsjustme24680: is that a way to treat a friend? lol
itsjustme24680: how's motherhood?
itsjustme24680: getting any sleep?
itsjustme24680: Georgie doing well?

This is the last time I'm going to ask, you've been texting long enough - who is this?

itsjustme24680: considering we're both married parents, probably best I not answer that at this point...

itsjustme24680: Marlene?

This guy really knows how to sweet-talk a woman! 

Here's what poor Richard texted stated to his wife

‘Words cannot express how sorry I am to my wife, for the disrespect I have shown her, and my entire family,’ he told the Miami Herald.

Ok, that's a start, but you're in for a very long journey.

See you all at Chris Korge's house!  (bring $15k)

South Beach Foreclosure Dismissed in Three Months.

 

In November of 2011, Shuster & Saben filed an Answer on behalf of an owner of an oceanfront condominium in Roney Palace in Miami Beach.  In February of 2012, the Plaintiff and alleged owner of the note, Kondaur Capital Corporation dismissed their case against our client.  Another day… another dismissal for Shuster & Saben.  Our client was happy to hear the news that he will have no bill for our services in March because his case is now over. 

Our client, an out of state condo owner, had his personal attorney in New York screen top foreclosure firms to find an agile, aggressive, cost effective foreclosure defense firm that would go on the attack from the get-go.  After interviewing firm attorney Richard Shuster and researching our case results, the client’s personal attorney recommended that he hire our firm. 

Shuster & Saben does not use stall tactics like motions for extension of time.  We hit Kondaur with a answer that was nearly fifteen pages long and discovery into the questionable transfers of the loan from on financial institution to the next.  After Kondaur received our answer they put the mortgage up for sale.  Kondaur did not wait around and try to substitute some new or future buyer of the loan into the lawsuit they filed.  Instead they decided to cut and run. As U.S. Bank recently learned, banks without airtight cases can incur judgments for enormous fees when they go to the mat and lose against our firm.  Kondaur’s decision will limit the amount of their fee exposure. 

To see the redacted dismissal please click the link below

Redacted Dismissal

When other lawyers ask why is it that our firm obtains so many foreclosure dismissals, I let them know it is because we work our cases.  Pushing back hard takes a little more work but when it results in a quick dismissal it saves our clients money.  Some prospective clients are only concerned about the fees of a foreclosure firm charges and might pick one lawyer over another because they change $100.00 less a month or have a one time flat fee change.  We believe that hiring the best lawyer that will take the homeowner’s case is the best way for the homeowner to maximize the value of their foreclosure defense budget.  If a homeowner is unsure how tell how good a job a foreclosure lawyer will do in their case, they should look at the lawyer’s results in the lawyer’s prior cases and interview more than one lawyer.  For more information about our firm’s results please see the last fifty (50) blog posts on this site or our 5 Star Client Reviews on AVVO. 

Third District Reverses Dismissal for Failure to Serve

The Third District Court ruled today in Dolan v. Dolan, and reversed the lower tribunal’s dismissal of an amended petition for modification as a result of a failure to serve the former wife with that pleading.   The Third District Court found that the former wife had already waived the insufficiency of service claim she later prevailed upon, and that the former husband was not required to preserve that issue for appeal through a motion for rehearing.

Fourth District Court Reverses Final Judgment

The Fourth District Court of Appeal reversed the Final Judgment today in Preudhomme v. Bailey, and while the bulk of that Judgment was affirmed on the basis of credibility determinations, the Court did reverse on some grounds.  First, the Judgment was overturned for error in determining which property was marital and non-marital.  In addition, the lower court, which provided limited and restricted visitation to the wife, was found to have erred in limiting any attempt to modify that parenting plan until fifty-two weeks of individual therapy was completed, along with twenty-six weeks of joint therapy with the children.  That limitation was found to be excessive in that it prohibited modification even if it were in the best interests of the children, who wish to see their mother.

Fourth District Court of Appeal Rejects Conversion Claim

The Fourth District Court of Appeal ruled today in MacLeod v. MacLeod, and reversed the lower court’s determination as to the disposition of a certain parcel of real property.  In short, the Court ruled that residing in and making improvements to a non-marital home does not “convert” it to being marital property.  The Court did leave open, however, the issue of the value of any marital appreciation value caused by expenditure of marital funds on the property, to be determined on remand.

But Did You Try Pinterest?

As a followup to the toxic tush melee, I see that a number of motions for restraining order were filed

They were apparently set for hearing on February 10 -- does anyone know what happened?

This part caught my eye:

The younger Brown's lawyer, Spencer Aronfeld, could not be reached for comment late Friday afternoon despite messages left on his office voicemail, email and Twitter accounts.

Sheesh, can you leave the dude alone?

He'll talk when he's ready -- but why stop at Twitter; did you try Pinterest?

I hear there's an awesome baked taco ring, maybe you can chat with him if he happens to be hanging around there?

(Someone, anyone, please explain Pinterest.)

3d DCA Watch -- Fabre Happens.

Yo ho yo ho a Fabre's life for me.

Dig it:

Regions Bank v. Capital Square:

We conclude that the trial court’s refusal to give Fabre instructions to the jury mandates a new trial, but solely as to the issue of apportionment of fault. We follow Nash, in concluding that a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages. In Schindler Elevator Corp. v. Viera, 693 So. 2d 1106 (Fla. 3d DCA 1997), the Third District Court of Appeal limited the new trial solely to the issue of apportionment between the parties and the non-party defendants, stating that, “where a jury has been prevented from properly considering apportionment because a Fabre non-party was erroneously omitted from the verdict form, the solution is a new trial limited to the apportionment issue, not a new trial on all liability issues.” Id. at 1108; Nash, 678 So. 2d at 1263-64. We therefore reverse and remand for a new trial solely on the issue of apportionment between the parties and non-parties, where the non-party accounting firms must be included on the verdict form.

Once more, with feeling.

Zarate v. Deutch Bank.

You really need a record to do an appeal.

Yo ho yo ho......

Jack Brumbaugh, Artist!

It's nice to see Jack branch out and explore his artistic side.

Judge Pando Flap -- Does Case Hold Water?

The Herald led its Saturday (least read?) edition with a front-pager on Judge Pando.

In addition to the letter she wrote on behalf of a pain clinic that regularly appears before her, there are allegations regarding a Ponzi schemer trying to set up a meeting so she would put in a good word for him before his Broward sentencing judge:

Pando’s name surfaced repeatedly in a series of phone calls tape-recorded at the Broward County Jail between racketeer Arturo Godinez and his wife. A Broward jury found Godinez guilty of fraud and conspiracy on Oct. 31 in a case involving the sale of sometimes bogus cancer and AIDS drugs to unsuspecting pharmacies and consumers. The next day, Godinez held the first of several conversations about how to recruit influential leaders to advocate for his release. Pando was one of them.

Let's put the letter issue aside for a moment and focus on these allegations.

From what I can tell, Judge Pando did not agree to meet with Godinez, but apparently was considering it, according to his wife:

Judith Godinez told her husband in one recorded conversation that a meeting had been scheduled between Pando, Pando’s father, Esteban Bencomo — who is referred to throughout the conversations by his nickname, “Papito” — and someone they call only “El Leader.”

In one conversation, Judith Godinez told her husband that Pando was willing to meet with representatives of the couple — but wanted to control who was present. “She’s not going to be comfortable talking in front of me, because I wanted to be present,” Judith Godinez told her husband, though the “me” she was referring to may also have been a family friend named Martica. “Later, we’ll see what she says, how she can help.” 

That's it?

Maybe I'm jaded, but this seems pretty thin to me.

What am I missing here?

As regards the letter,  I don't think she is helped by this statement by the pain clinic's president:

Through a lawyer, former U.S. Attorney Atlee Wampler, Florida Wellness’ president, Cereceda, issued a short statement praising Pando: “I have the highest respect for Judge Pando,” he said. “I am a regular contributor to her election campaigns. I believe she has an excellent judicial temperament. I strongly support Judge Pando’s re-election.”

I bet he does.

d more here: http://www.miamiherald.com/2012/02/16/2649377_p3/dade-judge-tangled-up-in-probe.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/02/16/2649377/dade-judge-tangled-up-in-probe.html#storylink=misearch#storylink=cpy

What say you?

Read more here: http://www.miamiherald.com/2012/02/16/2649377/dade-judge-tangled-up-in-probe.html#storylink=misearch#storylink=cpy

Fifth District Reverses Termination of Parental Rights Under Indian Child Welfare Act

In G.L. v. D.C.F., the Fifth District ruled today that the lower tribunal erred when it failed to provide notice under the Indian Child Welfare Act of a pending termination of parental rights to the appropriate tribal representatives.  While the issue was not raised as error below, failure to follow the ICWA was found to preempt the traditional law on preservation of error.

Second District Reverses Injunction

The Second District Court of Appeal reversed today in Barile v. Gayheart, a case in which the lower tribunal treated an insufficient petition for injunction against repeat violence as, instead, a petition for a domestic violence injunction.  The trial court’s switch resulted in a denial of due process to the respondent, resulting in reversal.

First DCA Reverses in Administrative Support Action

The First District Court of Appeal ruled today in DOR ex rel Rambert v. Williams, and reversed the lower court’s deviation from support based on a verbal parenting plan which was not court authorized.  Essentially, the First District found that only a written, authorized parenting plan could, by statute, justify a deviation.

First District Court Reverses Injunction

The First District Court of Appeal reversed today in Achurra v. Achurra, a case in which the lower tribunal entered a permanent injunction against domestic violence without first holding an evidentiary hearing on the allegations.  As a result of the lack of any evidentiary hearing on the matter, the District Court was forced to consider a case where the Petitioner presented no evidence to meet her initial burden of proving entitlement to relief.

Magistrate Judge Brown Explains How the Local Rules Work.

Apparently you can't just waive the Local Rules by agreement, you sort of need the Court to sign on to your little side deal too:

The Local Rules are not simply guidelines for the litigants. They also exist, in some instances, for the Court's benefit as well. The rule at issue (Local Rule 26.1(h)(1)) was created to prevent exactly what is happening in this case . . . a flurry of last minute motions to prepare the case for trial. Here we are, after the discovery deadline has passed, on the issue of plaintiff retaining an expert on a matter that could have - and should have - been resolved long before now. Perhaps defendant would like to retain its own expert? Perhaps the next step would be an evidentiary hearing? This is why the rule exists.

No 1aw has been cited that gives the parties the right to summarily decide they won't be bound by a Local Rule. Were that the case, perhaps the parties could also agree to disregard the prefiling conference requirement (Local Rule 7.1(a)(3))? Perhaps the parties could agree not to be bound by the page limitations as well? A party could file a 45 page motion and as long as the opposition doesn't raise the page limits issue the Court should or must accept same?

Five very good questions -- is it Passover (plus one) yet?

Also, if I'm not mistaken, the Local Rule at issue (you have to file discovery motions thirty days after grounds exist) -- wasn't that Magistrate Judge Brown's idea in the first place?

Oops!

Shuster & Saben Sues Heritage Pacific Financial, LLC

 

When a Satellite Beach resident hired Shuster & Saben to defend the foreclosure case filed by Deutsche Bank (as Trustee) against his home, firm attorney Richard Shuster wrote both the servicer for the client’s first mortgage and Heritage Pacific the servicer of  the client’s second mortgage.  The firm wrote both servicers so that calls and letters from both servicers to the client would stop.

The firm’s letter to Heritage Pacific told Heritage point blank and in bold type “All future contact relative to this debt must take place solely through this office.  Please cease and desist all communications with our clients.”

Shuster even said “Please” but only once.  When Heritage wrote our client nearly one year later to offer a lump sum payment “option” to make single payment of $93,446.98 when our clients balance was on $93,446.98 ( a whopping discount of 0% ), the firm did not repeat their warning.   The firm filed suit against Heritage for both the illegal contact with a person they knew was represented by counsel , a violation of the FCCPA,  (Florida Consumer Collection Practices Act) and Heritage’s failure to properly respond to a Qualified Written Request, a violation of RESPA,  (Real Estate Settlement Procedures Act).  Now this Texas loan servicer will have to hire a lawyer to defend a Brevard case where the homeowner is the Plaintiff.   

To see a redacted copy of the lawsuit filed against Heritage Pacific please click the link below:

Redacted Lawsuit  

About Shuster & Saben:  Shuster & Saben loves to sue banks.  See our older blog posts about cases where we sued banks and won.  Shuster & Saben has a zero tolerance policy for lenders and loan servicers who call our clients.  The firm handles FCCPA, FDCPA, and RESPA claims against banks on a pure contingency basis.  The firm accepts referrals from other foreclosure lawyers whose clients are called by banks.  We believe that when a consumer hires a lawyer they should enjoy peace and quiet that is not interrupted by collections calls from banks. Speak softly and carry a big stick.

Kevin Gleason and Judge Olson -- Yes, There's More.

We've reported extensively on the saga involving bankruptcy lawyer Kevin C. Gleason and his unique brand of written advocacy before Bankruptcy Judge John K. Olson.

Well of course Gleason appealed the en banc sanctions order, leading to yet another Order on this topic, this time from Judge Marra:

Based on the Court’s review of the record, the Court concludes that the Bankruptcy Court did not abuse its discretion in sanctioning Mr. Gleason pursuant to its inherent power. The April 18, 2011 Response to Order to Show Cause and May 13, 2011 Supplemental Response demonstrate bad faith on the part of Mr. Gleason, violated his duty as a member of the bar and damaged the reputation of the Court, the judicial system, the legal process and the legal profession.

 Unfortunately for Mr. Gleason, it goes downhill from there......

Second District Reverses Child Support Calculation

The Second District Court of Appeal reversed a lower court yesterday in C.J.E. v. S.D.A., and was able despite the lack of a record to reverse the Final Judgment on its face alone.  This was because while there was retroactive support awarded to the Mother, it did not include child care costs.  The lower court was instructed on remand to include those costs in its calculation.

Fourth District Upholds Contempt Ruling but Reverses Modification of Timesharing

The Fourth District Court of Appeal issued a ruling yesterday in Norberg v. Norberg, a case in which the Former Wife appealed a finding of contempt resulting from a hearing she did not attend on the basis that there was no finding of ability to pay the purge amount and for other reasons.  The Fourth District found no error in the lack of a finding that the Former Wife could pay the purge, in that incarceration was not ordered.  Likewise, the lower court was affirmed for finding that the amount of damages was that stated by the Former Husband, as this was a credibility determination.  However, the lower court’s decision to modify timesharing was reversed, as there was no pleading seeking that relief before the Court.

Fourth District Court Overrules Magistrate who Overruled Court

The Fourth District ruled yesterday in Drdek v. Drdek, a rather unusual case in which one Magistrate found that the Former Husband was not in contempt for non-payment of alimony in that the retirement benefits he lived on were waived by the Former Wife in the MSA.  No exception was taken to that order, and the Court upheld the report of the Magistrate.  At a later contempt hearing, however, a different Magistrate decided that the previous ruling was incorrect, and overruled it on the basis that a manifest injustice would occur if contempt was not found.  At exceptions filed by the Former Husband, that second report was rejected on the basis of the law of the case.  The Fourth District Court, first pointing out that this is not the Law of the Case Doctrine, instead overturned the second ruling on the basis that the Magistrate lacked the ability to “correct errors of law committed by a predecessor,” as did the lower court.  As such, having taken no exception or appeal, the Former Wife was unable to seek a different result, and remand was ordered to determine if there was some other means of payment besides the retirement benefits.

Fourth District Reverses Final Judgment

The Fourth District Court ruled yesterday in Garcia-Lawson v. Lawson, reversing the Final Judgment but permitting the lower court on remand to enter the same Final Judgment.  This was due to the entry of that judgment while two appeals, noted by the Fourth District to have been frivolous and later dismissed, were pending.  As such, the lower court lacked jurisdiction to enter a final order.

Electronic Discovery in Criminal Cases - Principles

Electronic Discovery in a Criminal Case 

Federal Criminal Defense Attorney just received an excellent checklist and  list of principles to be applied in electronic discovery in criminal cases. Thanks to our Federal defense lawyer for this excellent outline. Below the principles are a quick ESI checklist. "Today, most information is created and stored electronically. The advent of electronically stored information (ESI) presents an opportunity for greater efficiency and cost savings for the entire criminal justice system . . . To realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing ESI discovery." Excerpt from Introduction to Recommendations for ESI Discovery in Federal Criminal Cases 

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.

Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.

Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.

Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.

Principle 5:When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.

Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.

Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.

Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.

Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.

Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Special Thanks to the Federal Defender's Office and The Joint Electronic Technology Working Group (JETWG) that was created to address best practices for the efficient and cost-effective management of post-indictment ESI discovery between the Government and defendants charged in federal criminal cases.

ESI Discovery Checklist. A one-page Checklist for addressing ESI production issues.


ESI Discovery Production Checklist

Is this a case where the volume or nature of ESI significantly increases the case’s complexity?

Does this case involve classified information?

Does this case involve trade secrets, or national security or homeland security information?

Do the parties have appropriate technical advisors to assist?

Have the parties met and conferred about ESI issues?

Have the parties addressed the format of ESI being produced? Categories may include:

• Investigative reports and materials
• Witness statements
• Tangible objects
• Third party ESI digital devices (computers, phones, etc.)
• Photos, video and audio recordings
• Third party records
• Title III wire tap information
• Court records
• Tests and examinations
• Experts
• Immunity and plea agreements
• Discovery materials with special production considerations
• Related matters
• Discovery materials available for inspection but not produced digitally
• Other information

Have the parties addressed ESI issues involving:

• Table of contents?
• Production of paper records as either paper or ESI?
• Proprietary or legacy data?
• Attorney-client, work product, or other privilege issues?
• Sensitive confidential, personal, grand jury, classified, tax return, trade secret, or similar information?
• Whether email transmission is inappropriate for any categories of ESI discovery?
• Incarcerated defendant’s access to discovery materials?
• ESI discovery volume for receiving party’s planning purposes?
• Parties’ software or hardware limitations?
• Production of ESI from 3rd party digital devices?
• Forensic images of ESI digital devices?
• Metadata in 3rd party ESI?
• Redactions?
• Reasonable schedule for producing party?
• Reasonable schedule for receiving party to give notice of issues?
• Appropriate security measures during transmission of ESI discovery, e.g., encryption?
• Adequate security measures to protect sensitive ESI against unauthorized access or disclosure?
• Need for protective orders, clawback agreements, or similar orders or agreements?
• Collaboration on sharing costs or tasks?
• Need for receiving party’s access to original ESI?

Preserving a record of discovery produced?
Have the parties memorialized their agreements and disagreements?
Do the parties have a system for resolving disputes informally?
Is there a need for a designated discovery coordinator for multiple defendants?
Do the parties have a plan for managing/returning ESI at the conclusion of the case?

Electronic Discovery in a Criminal Case? Call Casey at 813-222-2220 .

3d DCA Watch -- Marva Wiley Wins!

 
Hey hey hey it's hump day, that means we have to slog through have the pleasure of deciphering the written utterances of our own Resplendently Robed Ones.

Given the recent kerfluffle over contraceptives and the Catholic Church, let's dig right in with a timely opinion on the "ecclesiastical abstention doctrine":

 Bendross v. Reardon:

The genuinely great Marva Wiley gets a reversal on alleged misconduct at a local church:

We find that the ecclesiastical abstention doctrine does not bar this suit.  Plaintiffs are not categorically prohibited from ever seeking redress from the courts solely because a religious organization is somehow involved in the dispute. “[W]hen a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving religious controversy, the civil courts may adjudicate the dispute.” Se. Conf. Ass’n of Seventh-Day Adventists, Inc. v. Dennis, 862 So. 2d 842, 844 (Fla. 4th DCA 2003) (citing Jones v. Wolf, 443 U.S. 595, 602-604 (1979)). Appellants do not allege, in their complaint, that the Bible Baptist Church committed any wrongdoing, and do not challenge the institution’s employment practices or policies. Nothing in the record indicates that Appellants have sought judicial intervention concerning any aspect of church governance. Instead, Appellants allege that Appellees, acting without authority, attempted to remove specific board members from the organization in derogation of the requirements of section 617.0808 (Fla. Stat. 2010).

 The War on Religion continues....

In other news, can you believe we need to raise money for Florida Supreme Court justices now?

But these are very worthy Justices and you should attend and give generously at the 2/27 event.

BTW, "Committee of Responsible Persons to Retain...." doesn't exactly roll off the tongue (it has a vague Soviet-era workers' committee ring to it), but it's a very good cause anyway.

Loan Me Fifty (Thousand) Dollars!

Anyone else catch this story about our State Attorney Kathy Rundle:

Miami-Dade County State Attorney Katherine Fernandez Rundle has found a high-return investment, according to public records. Rundle lent $50,000 to a Key Biscayne homeowner at 12 percent interest.

“Well, I needed money quickly,” international lawyer Robert Feinschreiber said. “I had medical bills piling up. I know it’s a high interest, but I had no choice.”

According to court papers, he signed the two-year loan in 2007.

The deal, which wasn’t registered in archives, came to light as Feinschreiber is now facing foreclosure from a bank.

“Ms. Rundle has an interest in the apartment,” Feinschreiber said. “That’s why her name popped up.”

Another citizen, Elaine F. Rand, loaned Feinschreiber $50,000 at the same rate on the same day, according to documents.

“There’s nothing improper here,” Feinschreiber said. “I don’t even know Ms. Rundle. I was approached by a lawyer friend of mine who said he knew people who could help me and he told me later it was the state attorney.”
 
Ed Griffith, Rundle’s spokesman, said he couldn’t comment on the state attorney’s personal matters. And the state attorney didn’t reply to an email seeking comment. 

Huh?

I wonder what her rates are for home equity lines -- I'd like to add another hot tub (you can never have enough of them).

In other news, Paul Calli and "racy texts."

Hey, I just report this stuff.

Read more here: http://www.miamiherald.com/2012/02/12/2635294/radio-host-sid-rosenberg-alleged.html#storylink=misearch#storylink=cpy

Let's Talk About Love!

Yes kids, it's Valentine's Day and I'm feeling impossibly romantic.

I hope you are too?

Let's do a love edition:

1.  Wouldn't it be great if our wide-eyed, reptilian Governor said something like this:

"Look into your hearts and ask yourselves: 'Isn't it time?' " said Gregoire, as cheering supporters chanted "Thank you! Thank you! Thank you!"

"We did what was just. We did what was fair. We stood for equality, and we did it together, Republicans and Democrats, gay and straight, young and old, and a number of our faith organizations. I'm proud of who and what we are as a state," the governor said.

2.  More depos for Rothstein (somebody somewhere is loving this).

3.  Judge Marra refuses to dismiss punitive damages allegations in case involving an allegedly defective pain pump.

Through their Complaint, Plaintiffs allege actual knowledge of the danger posed by using the pain pump through the reports identified in subsections 20(c) and 20(d) of the Complaint. Plaintiffs further allege that “Although I-Flow had the capacity to use vendors to reach out to all orthopedic surgeons nationally, I-Flow’s officers and/or directors chose not to send out any Dear Doctor or Dear Healthcare Professional letters to surgeons or hospitals.” Complaint at ¶ 20(f). At least one Florida Court has determined that a product manufacturer’s actual knowledge of a danger followed by a failure to warn of that danger supports punitive damages. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191-92 (Fla. 4 DCA 2005) (“We agree with plaintiffs that the proffer reflected facts from which it could be found that Firestone knew about the tread separation, but delayed warning the public in order to protect its own financial interests. Such a finding would support punitive damages.”) The Court finds that Plaintiffs have met the pleading requirements articulated in Iqbal and Twombly and dismissal of their claim for punitive damages is not warranted.

(Ok, I only quoted this because I love talking about Iqbal/Twombly.)

4.  More love for Jeremy Alters:

The former nanny, Katelyn Sullivan, meanwhile, said in a suit filed two weeks ago that Alters charged more than $170,000 on her credit cards, withheld $20,000 in pay, and even made her sell her old Volvo because he didn't like how it looked in his driveway.

Both are bunk, Alters says. He has filed a motion to dismiss the Argentine case and this week plans to file a similar motion against Sullivan's claims.

"Her lawsuit is nonsense. Her claims are false," he says.

The part about the Volvo better be!

CM/ECF To Public: Brother, You Must Now Spare a Dime.

 Some government robot somewhere kind federal employee emailed me this on Friday:

An increase in the electronic public access (EPA) fee, from eight cents to 10 cents per page, will take effect on April 1, 2012.

Earlier this month, the Judicial Conference of the United States authorized an increase in the federal judiciarys electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system.

The change is needed to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the judiciarys Case Management/Electronic Case Filing system.

The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. 

Note to RECAP users -- your access is not free, either.

Somebody went ahead and fronted the fee so you can glom on like the cheapskate moocher you are.

But don't worry about me, enjoy the free access (that's my mother impression I've been working on).