"I NEVER BROKE THE LAW"

In an interesting case tried pro se before Judge Huck, the 11th Circuit has affirmed her factual findings that the plaintiff had no claim against Bank of America for unauthorized transfers from her account:

Based on the District Court’s finding, Bank of America was not liable for the withdrawals for at least one of two reasons. Merisier furnished the means of access to her account voluntarily, either as a willing participant in a fraudulent scheme or as one duped by Jeanty; Merisier admitted the information could not have fallen into Jeanty’s hands by mistake or accident. First, therefore, Merisier furnished Jeanty with access to her account without notifying Bank of America that she did not intend him to withdraw funds. See id. § 1693a(12)(A). Alternatively, Merisier collaborated with Jeanty, which would have brought the disputed transactions squarely under § 1693a(12)(B), which excludes transfers “initiated with fraudulent intent by the consumer or any person acting in concert with the consumer.” Either way, EFTA’s error-correction protocols did not apply to these transactions.

Not sure why this was tried or worse yet, why it was appealed?

I also like footnote 11, arguing relevancy:

We reject Merisier’s argument that District Court premised its factual conclusions on irrelevant information. According to Merisier, the District Court ought not to have considered evidence suggesting a scheme to defraud, evidence suggesting the skirting of cash-deposit reporting requirements, or evidence raising suspicions about the source of the funds in Merisier’s account. These facts are all relevant because they suggest the withdrawals were authorized.

Indeed, that would seem to be the only point of such evidence.

Magistrate Judge Goodman on Affirmative Defenses!

Not everybody finds Magistrate Judge Goodman's orders to their personal liking, but when he cuts the verbiage and tones down the shtick (hey, that's what we're here for!) he can be very clear and convincing.

Here he is explaining that you can't just boilerplate asinine, barely-literate affirmative defenses and expect to get away with it in his courtroom:

This is because none of the alleged affirmative defenses contain factual allegations of any kind. Instead, the alleged affirmative defenses contain only bare legal conclusions.

For example. the ninth (waiver). eleventh (duress), twelfth (estoppel). thirteenth (illegality) and fifteenth (unclean hands) defenses are especially vague and fact-free.

Plaintiff would have no idea what type of scenario Defendant is referring to when asserting these defenses. How did Plaintiff purportedly waive its claims? Why are the claims subject to estoppel? What type of illegality precludes recovery? Defendant does not say. Nothing in the affirmative defenses even hints at the general category of event which supposedly generates the purported defenses, let alone a summary of the specific facts.

Other defenses, while not quite as nebulous, are also impermissibly vague and conclusory.  For example, affirmative defense number three alleges "Defendant fully discharged his duty to the Plaintiff by making payments to Plaintiff." This Court assumes that counsel conducted "an inquiry reasonable under the circumstances," Fed. R. Civ. P. 11 (b), before alleging this defense. Defendant therefore should have been able to allege at least some details regarding the amount of any payment, the date of any payment, and/or the method of any payment. But Defendant did not and its failure to do so renders the affirmative defense insufficient.

By way of further example, in affirmative defense number one, Defendant states that it is adopting and incorporating certain contractual defenses by reference. Defendant, however, not only does not identify any specific contractual defenses or what agreement gave rise to these defenses, but Defendant also suggests the agreement may not even exist -because it qualifies this defense by cryptically referring to "the agreement(s), if any." [ECF No. 27, p. 3 (emphasis added)]. At bottom, this purported affirmative defense is nothing more than a recitation of the legal principal that a party's legal relationship can be detailed and regulated by a contract.

In sum this is a nice primer on how to plead affirmative defenses in federal court.

Your Monday Morning Digital Dump.

 
Hi kids, was this weekend hot enough for you?

Let's see what's happening around town:

1.  Rumpole is conducting a real live prisoner's dilemma experiment -- five attorneys have apparently decided to "go rouge."  Time to play again?

2.  You're in luck -- Jose Baez says he will take your piddly dink cases:

I don’t want people to think I only take big cases. I always say, ‘No case is too big, and no case is too small.’ It’s no longer about a national story or getting recognition: it’s about working hard and seeking justice for our clients.

Thank goodness that "national story/getting recognition" period is over!

3.  Neil God!

4.  Shpoonkle Pro Bono launches:

Shpoonkle Pro Bono serves to heighten successful integration of law firms and attorneys in delivering volunteer services in the areas of Civil, Criminal, and Juvenile Rights. Shpoonkle Pro Bono augments legal assistance to many of charities most vulnerable groups of clients. Many of these charitable groups are overwhelmed and lacking in resources. Our goal is to facilitate easier online access to varied charitable organizations to legal professionals who want to help them.

This is expected to be a high profile event with local business, legal professions, politicians, and a few celebs, expected to turn out for the launch of this wonderful new charitable organization. The event sponsors can be found on http://www.shpoonklepb.com/charityevent/ . Eye on South Florida is expected to be covering the event as well. Please join the celebration in launching this new and exciting charity that supports the efforts of other charitable organizations’ legal issues for their service population.

Not sure what any of that means, but it sounds like a good thing.

5.  Judge Ramirez says writing dissents is like a good work out:

I always found that writing a dissent when the majority writes a PCA is like shadow-boxing.  It gives you a good workout but doesn’t accomplish anything.

That's exactly what writing a sanctions motion feels like!

Read more here: http://www.miamiherald.com/2012/07/30/2920667/casey-anthonys-attorney-comes.html#storylink=cpy

"You Hardly Talk to Me Anymore, You Barely Write"!

Sure NY lawyer Emmanuel Roy wrote just about the awesomest letter to ever-patient Magistrate Judge Turnoff, evincing not even one iota of "stumpiness" toward the Court, but apparently the good Judge still expects a visit:

The undersigned will set this matter for status conference once Respondent Emmanuel Roy appears before this Court.

Get a clue, Emmanuel, nudge nudge wink wink:

You hardly talk to me anymore
When I come through the door
At the end of the day

Meanwhile, local attorney Peter Mayas no longer has a fool for a client, which is a good thing.

Judge Zloch Torpedoes State Attorney Primary Loophole Lawsuit!

See if you can tell how Judge Zloch ruled from the way he presents the issue for resolution:

The above-styled cause concerns the following question: whether individual voters not registered as Democrats have the right to vote in the Democratic Primary election for the office of Miami-Dade State’s Attorney when the Florida Democratic Party has asserted no interest in including or excluding said voters from the Primary, and the State of Florida has asserted an interest in maintaining a closed Primary.

Surprise -- the Court found it lacks jurisdiction, suggests the democratic process is the right way to change the statute, and notes that he would have found against the plaintiffs anyways.

You don't say!

Third District Reverses Order Denying Rehearing

The Third District Court of Appeal ruled today in Ross v. Ross, a case in which the lower tribunal denied a motion for rehearing filed by the former husband for being untimely.  The former husband appealed, and the lower court was reversed because the former husband, who is incarcerated, did in fact certify that he placed the document in the hands of prison officials in a timely fashion, which satisfies F.R.C.P. 1.530(g).  As such, the case was remanded for the lower court to consider the timely Motion for Rehearing.

Fourth District Court Reverses Enforcement Order

The Fourth District Court of Appeal ruled today in Cunha v. Cunha, a case in which the lower court denied the former husband’s request to vacate a judgment based on an underlying debt which had been paid.  The former wife argued that, as the debt was paid for less than full value, the former husband had not satisfied the parties’ MSA by being responsible for that debt.  The lower court agreed, but the Fourth District found that the debt was satisfied, and the judgment based upon it should have been vacated.

3d DCA Watch -- Dismissive "Quotes" Edition!

Wake up kids, it's bunker time:

Hedman v. Hedman:

Judge Schwartz dissents in an "equitable" distribution case:

In this appeal from a final dissolution judgment, I disagree with affirmance of the trial court’s “equitable” distribution of the husband’s half interest in the couple’s marital home, which was held by the entireties, to the wife.

What an "interesting" use of quote marks!

I also like footnote 3:

In an order on rehearing, the court characterized the wife’s interest as a “predetermined inheritance,” an expression previously unknown to the law and one which should have stayed that way.

Nice one, Judge!

Stratton v. 6000 Indian Creek:

57.105 sanctions upheld against an attorney for putzing around with an eviction case:

Section 57.105(1) was enacted to deter practices and legal advice of the sort displayed here. Florida Rule of Civil Procedure 1.010 imposes on parties and attorneys a duty to construe and apply the rules “to secure the just, speedy, and inexpensive determination of every action,” as opposed to the unfair, dilatory, and legal fee-enhancing actions of the appellants in this case.

"Legal fee-enhancing actions" -- nice turn of phrase.

Delva v. The Continental Group:

Feel free to discriminate on the basis of pregnancy until the Florida Supreme Court resolves the conflict.

But seriously, why would you?

Ok Judge Ramirez, what'd I miss?

Car Talk With Magistrate Judge Goodman!

Now that Click and Clack are retiring after 25 years of dispensing home-spun car repair advice on NPR, who will step up to fill the void?

I know a certain Magistrate Judge who may be interested.

Consider this extended vehicle analogy (plus bonus musical reference!) where lawyers are compared to cars in a case where the Judge is awarding fees in a routine FLSA matter:

This analogy can be extended further in this case because two partner-level attorneys were used. To that end, the Court’s point here is that only one Ford Fusion was required to drive Plaintiff across the finish line of a trial to a jury verdict, and any other lawyer-driven vehicles would need to be compensated under a more-reasonable approach. Thus, Mr. Georges-Pierre may well also be a Fusion-type driver who controls his client’s trial vehicle in FLSA cases, but the statutory reimbursement standards will treat him as though he was driving a pre-owned Toyota or a motorcycle (or any other kind of transportation option less expensive than a Fusion but still more than adequate to transport this case to a verdict in Plaintiff’s favor).

Of course, there may well be cases where the client is, in fact, entitled to be reimbursed for two Ford Fusion-type attorneys or a single BMW-type. There may even be some rare, esoteric and complex cases, such as antitrust cases and sophisticated, science-laden patent infringement cases, where the prevailing party is entitled to be reimbursed for a Ferrari. But this is certainly not one of those cases. Screen did not need to select two solid, reliable Ford cars in a routine FLSA case where the compensatory damages were less than $10,000. He could have traveled along the litigation highway in a base model Ford Fusion1 (without the luxury package), followed in tandem by a used (albeit “certified”) Toyota Corolla. To invoke a musical reference, the fees motion is somewhat analogous to the plight articulated by iconic blues singer B.B. King in “How Blue Can You Get,” a/k/a “Downhearted,” from his 1962 album Blues in My Heart: ”I gave you a brand new Ford and you said ‘I want a Cadillac.’”2

Without commenting on whether any of the lawyers in the case are worthy of Ferrari, Cadillac, Ford or Toyota rates, the hourly fee rates paid by a client are not necessarily the same as the ones used by a court awarding statutory, “reasonable” fees and the trial staffing decisions are also not going to be automatically adopted by a court.

Ok, maybe it's just me but I got the analogy after the first sentence.....

I also like footnote one:

1 Henry Ford’s motto was “simplicity.” http://gardenofpraise.com/scramford.htm (last visited July 20, 2012). In the early years, this simplification resulted in only one color choice. He famously wrote: “People can have the Model T in any color – so long as it’s black.” http://quotes4all.net/henry%20ford:3.html (last visited July 20, 2012). Had Screen followed Mr. Ford’s business philosophy, he would have used a partner and an associate, not two partners, for the trial.

Actually, had Screen followed Mr. Ford's business philosophy, he would have used a partner and an associate, not two partners, for the trial -- provided none were more than 1/8 Jew.

11th Circuit Affirms BankAtlantic JNOV!

In a major win for Gene Stearns and his client BankAtlantic, the 11th Circuit has affirmed (on other grounds) the JNOV entered by Judge Ungaro after a large plaintiff's securities fraud jury verdict:

In this case, we conclude that the evidence was insufficient to support a finding of loss causation, an element required to make out a securities fraud claim under Rule 10b-5. See, e.g., Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 342, 125 S. Ct. 1627, 1631, 161 L. Ed. 2d 577 (2005) (listing among the elements of a § 10(b) securities fraud claim “loss causation, i.e., a causal connection between the material misrepresentation and the loss” (emphasis omitted) (internal quotation marks omitted)). We therefore affirm.

This was a long, expensive war but score one for Stearns and his team.

Your Monday Morning Digital Dump!

 Hi kids, ready to kick the day into high gear?

Here's a potpourri of South Florida legal news to get you angry motivated:

1.  Terence Connor, dog neighbor, gets his case dismissed:

“This case was dropped after the woman who owned the dogs asked that we drop the . . .  case,” a spokesman for the state attorney told the website randompixels. “She indicated that she did not wish to proceed further and felt that this matter was basically a misunderstanding between neighbors that had gotten out of hand.

“Since she would have to play an essential role in any prosecution, we followed her wishes and dropped the case.”

Beatriz Llorente, Connor’s lawyer, declined to comment about the reasons for the latest development.

Said Connor’s alleged victim, University of Miami student Andrea Lopez: “I just wanted it to go away!”

I'm sure you're not the only one!

2.  Speaking of labor law, there are a lot of cases out there nowadays.

Oh hail, I just want to say hi to Kelly Amritt!

3.  Ervin Gonzalez happens.

4.  Florida's efforts to purge voters are a crock of #$$I:

When Miami attorney Lida Rodriguez-Taseff reached out to potential clients to challenge Governor Rick Scott's purge of noncitizens from Florida's election rolls, she says she found the opposition had gotten to them first.

She asked Miami-Dade County resident Maria Bustamante to join the litigation. Bustamante had been named on a statewide voter purge list even though she was a naturalized U.S. citizen from Colombia.

Bustamante, who became a citizen in 2006 and voted in 2008, wanted nothing to do with any lawsuit. She was afraid of being targeted after receiving a telephone call informing her she was ineligible to vote.

"The people on the list got calls," Rodriguez-Taseff said. "I talked to several people on the list who got calls from people who said, 'You are on this list. You are not allowed to vote.' They said, 'Yes I am," and they said, 'No you're not, fax me your papers.' Can you imagine?"

Grass roots groups, such as Texas-based True the Vote -- which supports the noncitizen voter purge -- denied targeting people over the phone.

Rodriguez-Taseff, a partner at Duane Morris in Miami, is affiliated with four nonpartisan civil rights groups battling what many voting rights activists and Democrats believe is an unprecedented effort to suppress the vote across the nation in a presidential election year.

 Thank you Lida!

5.   No surprise, but Rick Scott wants to get rid of some pesky Florida Supreme Court Justices:

Last year, with the tacit approval of Scott, Republican Speaker of the House Dean Cannon tried to dilute the power of the Florida Supreme Court by splitting it into two divisions. He also proposed increasing the minimum percentages of “yes” votes required for justices to remain on the bench under the current judicial merit retention system.

Both the split and the vote-percentage increase attempts failed. But a right-wing Florida non-profit corporation named Restore Justice 2012 has popped up in Orlando with an agenda that would suit Scott just fine — a campaign to oust moderate Florida Supreme Court Justices Fred Lewis, Barbara Pariente and Peggy Quince in their upcoming November 2012 retention vote for what it terms their continual pattern of “judicial activism.”

And how is your morning?

Emmanuel Roy Done Wrote Judge Turnoff a Letter!

The legal travails of NY lawyer Emmanuel Roy continue.  Mr. Roy recently failed to appear before Magistrate Judge Turnoff, leading the Judge to issue a bench warrant for Mr. Roy's arrest. But Roy decided to fight back -- by writing the Judge a letter. You can read the letter here, which sets forth a number of lame excuses reasons for Mr. Roy's failure to appear, and includes this memorable line:

I trust that the court will not conclude that I have decided to stump my nose at it, for any party who does so does it as his own peril.

Yes, no one should stump their nose at the Court, on that I think we can all agree. Despite the arguments raised in the letter, sources advise that Mr. Roy was arrested in the Big Apple, denied bond by a NY mag, and is on his way to sunny South Florida. Meanwhile, Mr. Mayas has a lawyer and is trying to settle his own issues. A hearing is set for Tuesday before Magistrate Judge Turnoff -- and nobody better stump his nose at this very fine Judge.

Your Kids Are Now Writing Complaints.

 I was reviewing this interesting order from Judge Seitz when I realized I had no idea what any of this meant:

Plaintiff alleges that Defendants, without Plaintiff s authorization, intentionally downloaded a torrent file particular to Plaintiff s Video, purposefully loaded the torrent file into the BitTorrent Protocol, entered a BitTorrent swarm particular to Plaintiff s Video, and reproduced and distributed the Video to numerous other peers in the swarm.

I'm only familiar with this Swarm:

Actually, the question of whether you can join all members of "the swarm" in a single complaint is an interesting one:

Therefore, aside from downloading the same Video using BitTorrent protocol, there is nothing that connects a1l of the Doe Defendants to each other. See Hard Drive Prods., lnc., 809 F. Supp.2d at 1 163 ("The bare fact that Doe clicked on a command to participate in the BitTorrent protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world'). This lack of connectivity is evidenced by the range of dates over which the Does in this case downloaded the Video - a period of six weeks, from December 13, 201 1 until January 26, 2012. (DE 1-3. Further, Plaintiff has not pled that any individual Doe copied or uploaded a piece from any other individual Doe. . . Therefore, the Court cannot accept Plaintiff's arguments that Defendants' actions constitute the same transaction, occurrence, or series of transactions or occurrences.

So, although courts are divided, at least in the SD FL being part of a BitTorrent "swarm" does not mean you can join every swarm member.

(Michael Caine can rest easy.)

Is a Mashgiach Entitled to Overtime Compensation?

 A mashgiach is a professional who certifies that food is kosher and complies with Kashrut -- the dietary laws of Judaism.

And yet this poor schmoe working for a local kosher catering company is only getting $15 an hour?

Worse yet, he's not getting any overtime and thus sued under FLSA.

In an apparent issue of first impression, Magistrate Judge Goodman in this opinion considers two interesting legal issues:

Defendants seek summary judgment in their favor and raise the following arguments: (1) Altman is an independent contractor, not an employee, and is therefore not subject to the FLSA, (2) Altman is not subject to the FLSA because he falls under the executive exemption, and (3) the mashgiach position falls within the so-called "ministerial exemption" to the federal employment laws.

On the first issue, the judge punts and finds issues of disputed fact:

But the material issue of whether Plaintiff's ability to replace himself with the Rabbi's approval constitutes the power to hire and fire as required by the DOL regulations is still open and the parties have not cited authority to conclusively resolve this question. Accordingly, the Court denies both motions' requests to decide whether Plaintiff is an exempt executive.

On the second the judge gets a little creative:

But the Court need not grapple with the core issue of whether the ministerial exemption applies to FLSA cases. Instead, the Court can decide the competing summary judgment motions by concluding that the ministerial exemption (if it applies at all) is inapposite here because Sterling is a for-profit commercial caterer, not a religious institution.

Oy veh, bring on the trial!

(And get a load of the judge's signature.)

3d DCA Watch -- "Willfully Inattentive" Edition!

You know how you have the right to a six-person jury in civil cases unless you make a "knowing and intelligent waiver."

Turns out, according to Judge Shepherd concurring and dissenting in part, that you can also be "willfully inattentive" and thus waive your jury trial right that way:

The right of access to our courts and a jury trial never has been understood as a limitless warrant. If Mr. Aghion did not have the opportunity to exhibit a knowing waiver of his right to a jury trial at the second setting of this case, it was his own fault. I cannot imagine our state founders intended to give more rights to the slothful than the diligent in our society.

"Slothful"?

Ok by me, as long as nobody is making a moral judgment.

"In South Florida, Arthur Miller's Worth 500 Bucks."

Famed Harvard law professor Arthur Miller helped Milberg get a class action remanded to state court, and then sought $995 an hour in fees for the improvident removal.

But Judge Scola says in Philadelphia Miami, it's worth fifty bucks:

While the Court acknowledges Milberg’s fine work in representing Plaintiff, the Court notes that the Motion for Remand set forth only two arguments for remand and one for fees — none of which involved novel issues of law. Moreover, Plaintiff has submitted no evidence suggesting that any of the requested hourly billable rates are consistent with “the prevailing market rate in [South Florida] for similar services by lawyers of reasonably comparable skills, experience and reputation.”5 See Loranger, 10 F.3d at 781. Plaintiff filed this case in Florida, yet Plaintiff requests New York hourly rates, which are among the highest in the country. Hourly billing rates, however, must be based on the prevailing local market rate, not the billing rates in a geographically distinct market. Indeed, Plaintiff admits that “the average partner rate in Southern Florida in 2011 was $482 per hour and the average associate rate was $303 per hour.” Mot. at 6. The rates requested in the Motion are well above those that Plaintiff concedes are average for this jurisdiction.

Upon review of the materials submitted and in consideration of the Court’s own knowledge of the local market, see Loranger, 10 F.3d at 781, the Court finds the following hourly rates reasonable: for Miller, Kaufman, and Polaszek, $500 per hour; for Snitnow and Quinn, $350 per hour; and for the paralegals, $125 per hour.

BTW, he cut the requested paralegal rate down from $325(!) an hour.

As it is, $36k for briefing a remand motion is a pretty fair fee.

Thanks to the tipster who passed this one along!

BREAKING -- Steve Lury Now Plans to Drive to Orlando!

I know everyone comes here for up-to-the-minute news on the South Florida civil legal community.

Well get ready for this bombshell:

The Sun-Sentinel recently reached out to Fort Lauderdale attorney Steve Lury to find out how he plans to get to Disney World Orlando now that Southwest Airlines is cancelling all direct flights.

Here is Steve's breaking reaction:

Fort Lauderdale attorney Steven Lury flies Southwest to Orlando numerous times a year and said the route cancellation will alter his travel. "I will most likely drive in the future."

Did you hear that, Southwest Airlines:  "I will most likely drive in the future." 

(But he hasn't decided for sure.)

Thank goodness our Governor is opposed to a high-speed rail system that would take Steve from Fort Lauderdale to Orlando without wasting all that time and gas.

That would be way too European.

"The Situation" Continues to Cause a Situation for Abercrombie & Fitch!

The lawsuit over Abercrombie & Fitch's ostensible aggrievement over Michael "The Situation" Sorrentino wearing its clothing rolls on before Judge Lenard, with a second amended complaint and motion to dismiss and response.

This all after David Lichter was unable to settle the case at the end of June.

From the response:

In August of 2011, Defendants issued what they have termed a ―press release‖ as part of an international advertising campaign, using Sorrentino‘s name and the Mark in order to create enormous public awareness, notoriety and publicity of its‘ brand, its‘ stores, its‘ products and its‘ e-commerce web sites. (DE 68 Ex. B). (The ―Press Release‖) The face of the Press Release promotes the stores operated by Defendants and it directs viewers to the web addresses of their e-commerce sites, where Defendants sell their branded products. The engine that drove the huge publicity and marketing campaign that was intended (and did in fact follow), was the use of Plaintiff‘s name and the Mark. (DE 68 ¶14, 15, 33, & 57 and Ex. B).

On August 12, 2011,1 Defendants embarked on this global advertising campaign, using Sorrentino‘s name and the Mark to enhance brand awareness for its products by falsely claiming that Abercrombie had offered money to Sorrentino to stop wearing their goods. Sorrentino was humiliated and demeaned as a result of Abercrombie‘s advertising campaign. Abercrombie disseminated the Press Release among all major news distribution outlets and to other news mediums. Defendants also published the Press Release on their website and on their official Facebook page (hereafter, ―the Facebook Post‖). At no time, did Sorrentino, or anybody acting on his behalf, give implied or express permission to Defendants to use Sorrentino‘s name and/or his Mark in commerce.

Interesting question as to how much the case is worth under 540.08.  The Situation wants in excess of $5 million plus punis, obviously A&F will say it's worth much less.

Who knew the guy even wore shirts?

Supreme Court Amends Forms

The Florida Supreme Court issued a ruling yesterday which amended several of the Florida Family Law Forms to anticipate the October effective date of Section 784.0485, which creates a cause of action for an injunction.  The full text is available here.

Supreme Court Unifies Time Calculations

The Florida Supreme Court issued an opinion yesterday, the full text of which is here, and which amended virtually all rules of procedure previously dealing with the computation of time, and replacing them with one omnibus rule.  This includes replacing Rule 12.090:

RULE 2.514. COMPUTING AND EXTENDING TIME

(a) Computing Time. The following rules apply in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

(2) Period Stated in Hours. When the period is stated in hours

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, or during any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

(3) Period Stated in Days Less Than Seven Days. When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

(4) ―Last Day Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends

(A) for electronic filing or for service by any means, at midnight; and

(B) for filing by other means, when the clerk’s office is scheduled to close.

(5) ―Next Day Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) ―Legal Holiday Defined. “Legal holiday” means

(A) the day set aside by section 110.117, Florida Statutes, for observing New Year’s Day, Martin Luther King, Jr.’s Birthday, Memorial Day, Independence Day, Labor Day, Veterans’ Day, Thanksgiving Day, the Friday after Thanksgiving Day, or Christmas Day, and

(B) any day observed as a holiday by the clerk’s office or as designated by the chief judge.

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a).

King of Bain

Let me see if I have the Romney scandal du jour right. Romney claimed that he left Bain Capital in 1999, yet he remained sole owner and CEO of a company he had nothing to do with for the next three years. Does this ring true for anyone? If so, would you also be interested in this fabulous bridge I have down in Brooklyn way?

Q: Why would Romney want us to believe such a thing anyway?

A: Because there are dozens of companies that Bain gutted during that period, shipping thousands of jobs to Mexico, China, and other places with more interesting cuisine than us.

I know, I know. I hate capitalism. Just another pinko-commie fag, what else is new? Only I don’t hate capitalism. I just want it to follow at least the same level of manners and morals that one would exibit when using a public restroom. You know, clean up after yourself. Don’t stink up the place. And for Godwhacker’s sake if you have a “wide stance” get a fracking hotel room. Nobody wants to see that shit.

Sometime Nazi appeaser but always true-blue American businessman archetype Henry Ford once said,

 “There is one rule for the industrialist and that is: Make the best quality of goods possible at the lowest cost possible, paying the highest wages possible.”

 Ford wasn’t being a do-gooder. He was just being a smart businessman. Just think of how many more Model-Ts he could sell if the people working for him could afford the product they built. Sure, this might cost him more in the short-term, but the long-term model was sustainable and increasingly profitable.

 But that’s not Romney’s brand of capitalism. He doesn’t think long-term. He is part of an aberration in our system that we have come to accept because it is commonplace. Today, quarterly reports dominate the business cycle. 5 and 10 year plans take the back seat to the immediate and the now. So much so that I can’t tell if it’s the business climate that is fueling the Wall Street cocaine epidemic, or if it’s the symptomatic desire for immediate gratification of the cocaine high that is pushing the agenda of the business cycle. Actions have been divorced from consequences -- shielded beneath a prevailing numbness that allows one to do things like shut down entire communities, stripping workers of their jobs and retirees of their pension plans without ever breaking that perfect Colgate smile.

No one here is accusing Romney of drug use. Supposedly, he wouldn’t even shoot a double macchiato. But as I learned during after-hours many years ago, you don’t have to be high to act high.

Miccosukee Mishegas: The Taxman Cometh.

Oh boy more trouble for the Tribe:  Judge Gold has once again refused to quash an IRS subpoena dealing with payments to Tribal members.

In a well-written 29-page order, the Judge refused to apply sovereign immunity and specifically addresses the recent 11th Circuit opinion upholding sovereign immunity in the dram shop context:

I note that the recent Eleventh Circuit decision in Furry v. Miccosukee Tribe of Indians of Florida, --- F.3d ----, 2012 WL 2478232 (11th Cir. June 29, 2012) does not change my conclusion that tribal sovereign immunity does not bar IRS summons enforcement proceedings. Furry involved the application of sovereign immunity to a private action under 18 U.S.C. § 1161 and Florida’s dram shop law. Id. at *1. The
Eleventh Circuit affirmed the district court’s dismissal of Furry’s claims on sovereign immunity grounds, concluding Congress did not abrogate tribal sovereign immunity or authorize private suit relating to tribal liquor transactions, and the Tribe did not waive sovereign immunity by applying for a state liquor license and electing to serve alcohol with the benefit of that license.

The Eleventh Circuit in Furry did not, however, address the application of sovereign immunity to a suit by a superior sovereign, Florida Paraplegic Ass’n v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1135 (11th Cir. 1999) (“Tribal sovereign immunity does not bar suits by the United States.”) (citation omitted).  Further, the Furry decision does not affect my conclusion that summons enforcement proceedings are not “suits” against the sovereign. Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.") (citations and internal quotation marks omitted).

I also like footnote 6, where the Judge notes that his conclusions of law can be in the form of a narrative, rather than numbered paragraphs.

Readers everywhere thank you!

Everyone Should Be Concerned About Walking Into a Portable Toilet!

This PSA brought to you by Miami attorney Ron Simon:

Luzbel’s lawyer, Ronald Simon, said everyone should be concerned about walking into a portable toilet.

"These are outdoor facilities that are all over the town, whether it's a football game. And there really are no real codes or regulations regulating the placement of these,” he said.

I would be especially concerned at football games, tennis matches probably not so much.

Question -- if there are really no codes or regulations regarding the placement of these, then what is the appropriate standard of care for purposes of establishing port-a-potty placement negligence?

(Say that three times fast, like you're at motion calendar.)

You Can Now eCourtesy Copy Your eJudge!

Did you know you can now eCourtesy copies of pleading directly to your judge from your iPad or iPhone?

eCourtesy Submission Service is an online delivery method (web application) for sending extra copies of filed and served documents to the Judge. You must file original documents with the Clerk of Court for docketing and placement in the court file. The eCourtesy application does not schedule. It is simply a delivery to the Judge by email instead of by hand-delivery or U.S. mail.

• eCourtesy Submission Service (Click here to log in or create an account)
• eCourtesy FAQs
• eCourtesy Quick Reference
• eCourtesy Quick Submission Service Demo Video

For eCourtesy technical assistance, please contact our eCourtesy Submission Service support staff

• by phone, call our eCourtesy help line at  305-349-5608  from 9:00 AM to 4:00 PM, except for weekends and public holidays
• by email eCourtesyHelp@jud11.flcourts.org

You will be contacted by our eCourtesy Submission Service support staff within 24 to 36 hours

eCourtesy Templates

• Blank Order

• Notice to Set Cause for Trial

• Order of Referral to Foreclosure Mediation

• Order of Referral to Mediation for Non Foreclosure Cases

This is highly eLame-O (not the service, which is a good idea, but the lower case e-Name).

When will this overdone naming trend e-Die?

First District Reverses Valuation of Stock

The First District Court of Appeal reversed on a single issue today in Blossman v. Blossman, the valuation of the parties’ voting and non-voting stock in the Abita corporation.  Evidently each party’s expert used a different method of valuing stock, and the court below used a figure that was an average of the two.  As this averaging of multiple valuation methods is not permitted, reversal was required.

Fourth District Reverses Denial of Alimony Modification

The Fourth District Court of Appeal reversed today in Koski v. Koski, a case in which the lower tribunal denied the Former Husband’s petition seeking modification of his alimony obligation.  While the lower court found a substantial increase in the Former Wife’s income, no findings were made as to whether the increase was contemplated, or whether it was permanent.  The Fourth District noted that the change appeared to be both permanent in nature and outside the circumstances contemplated at time of Final Judgment.  Given this, the Court found error in the lack of findings made by the lower court showing that a review of the statutory factors did not support a modification, and remand was required for these findings to be made.

Fourth District Affirms Modification of Timesharing

The Fourth District Court of Appeal ruled today in Tullier v. Tullier, affirming the lower court’s modification of timesharing for the Former Husband from supervised to unsupervised.  The Former Wife appealed on the basis that there was not competent, substantial evidence supporting the modification.  The Court disagreed, on the basis that two experts testified that the Former Husband was addressing his past issues, and other testimony was offered.  Judge Warner dissented on the ground that the showing was not sufficient to meet the extraordinary burden standard.

3d DCA Watch -- Dark and Stormy Edition.

Hi kids, it's a bright sunny day out there so let's go bunker diving and find some opinions to match our general disposition:

Vidal.  v FAUC:

A substitute teacher wants to get unemployment benefits.

Hasn't he suffered enough?

Three judges, two opinions and a concurrence.

You know what they say.......

Herrera v. Rolon:

Hint to Judge Areces on remand -- hear the pending motion.

Chief Akande v. Balfour:

Tell us what you really think, Judge Schwartz:

SCHWARTZ, Senior Judge (specially concurring).

In my judgment, this case calls for the assessment of attorney’s fees against appellant and his attorneys under section 57.105, Florida Statues (2010), and Florida Rule of Appellate Procedure 9.410(b).

Come on, why stop there? 

A Life, Summarized?

Did Judge Schwartz just summarize my entire legal career, here:

In essence, therefore, everything in the circuitous legal journey which followed was an exercise in superfluousness and futility.

Well stated, Your Honor!

Gaze at the Alleged Financing of Jeremy Alters' Firm!

 According to this blockbuster charging lien filed by Scott Schlesinger in the Checking Overdraft litigation, Scott has pumped more than $2 million dollars into Alters' firm, allegedly in exchange for a sizable piece of his high-profile cases:

Since May 10, 2012, Schlesinger has provided financial support in the amount of $2,140,355.00 for the benefit of the Alters Law Firm, P.A.

Yowza!

I also like this personal guarantee allegedly signed by Bruce Rogow:

Bruce Rogow hereby acknowledges that he has read this Agreement. In his role as special counsel to the Alters Law Firm and lead counsel in the Bank Overdraft Multidistrict Litigation case, Bruce Rogow will not take any action which would violate the spirit of this Agreement and he will support the application of the Alters Law Firm to the common benefit fund in the Bank Overdraft Multidistrict Litigation case for the fee division as contemplated herein [emphasis added].

This promises to be very interesting if these boys can't work this out themselves.

Your Tuesday Digital Dump.

 
Hi kids, a lot happening here in sunny South Florida.

Let's get right to it:

1.  Once again The Garvinator delves into the law, this time crisply analyzing the complicated 200+ page health care opinion thusly:  it reminds him of that time Bubba lied about his schmeckle!

(I'm not kidding.)

2.  This has nothing to do with South Florida, but a Manhattan deli can properly claim ownership of the "Heart Attack Sandwich" throughout all of New York (h/t Random Pixels):

Before filing suit, the Heart Attack Grill sent a cease-and-desist letter claiming the sandwiches — the Instant Heart Attack features two latkes filed with corned beef, pastrami, turkey and salami– violated its trademarks for its various “Bypass” burgers.
The “Quadruple Bypass Burger,” by comparison, features four half-pound beef patties, eight slices of American cheese, a whole tomato and half an onion. It weighs in at a whopping 8,000 calories.

Come on, even my mother ("eat, you're too skinny!") would not try to serve me this sandwich:

Good thing there's no obesity epidemic in this country!

3.  11th Circuit opinion upholding bank waiver of arbitration provision in Checking Overdraft litigation by submitting issue to Judge King -- oops!

4.  Spencer's breakfast club interviews criminal defense lawyer Scott Kotler:

Spence, you know how those pictures at Disney World when we were kids always had a big palm tree behind our heads?

Just saying.....

Let's Talk About Logue!

 

With apologies to Celine Dion, I happen to think this is a good pick for Judge Ramirez' successor:

Logue, 56, has served as an attorney for Miami-Dade County, acting as counsel for the Board of County Commissioners and the property appraiser. “Tom brings to the bench an impressive record as a litigator and appellate attorney,” Scott stated in a release. “Equally impressive is Tom’s abiding commitment to judicial restraint. His career and his scholarly writings demonstrate a deep understanding of the notion that the rule of law, and not personal preference, must prevail in our courts.” Logue fills the vacancy created by the resignation of Judge Juan Ramirez Jr.

 That's ok, the Judge still has the power of the Blogger Pulpit.

"He is Going to Be Arrested and Brought Before Me."

Quick, name which judge was speaking about which lawyer in that quote?

Wrong!

It was Magistrate Judge Turnoff, referring to NY attorney Emmanuel Roy, after Roy failed to show for a contempt hearing:

Emmanuel Roy didn't show up at the federal courthouse in Miami for Friday afternoon's contempt hearing, an absence that was not taken lightly by U.S. Magistrate Judge William Turnoff. Although he stopped short of finding Roy in contempt of court, Turnoff issued a bench warrant for the wayward attorney.

"He is going to be arrested and brought before me," Turnoff said.

Peter Mayas of Plantation didn't fare too well either:

"When a lawyer represents a client, they sign a contract, a retainer," Mayas said outside court Friday. "Mr. Coulton never retained me as his lawyer." He conceded that he was present during at least one legal proceeding for Coulton, but said it was only to assist Roy and not as Coulton's lawyer.

Unimpressed with the distinction, Turnoff said Mayas' denial – uttered in court under oath on May 31 – sounded so much like perjury that he all but invited federal prosecutors to arrest Mayas before he could leave the federal courthouse in downtown Miami. They did not.

Mayas, who is not authorized to practice law in federal court, showed up without a lawyer to represent him Friday and said he could not afford to hire one. He insisted that he never took any money from Coulton.

"Not one check was made in my name," he said. "Not one payment went to me. Why am I being harassed?"

Aah yes, the eternal question and a perfect one for a Monday.

Judge Ramirez' New Rules.

The Supreme Court approved new rules governing electronic discovery in civil cases.  For more details,  check out my own blog.

http://ramirezlaw.blogspot.com/

3d DCA Watch and Then Some. And The Miccosukees.

Turns out even Raul Cantero can't win 'em all. See? Score one for Bilzin. And Judge Schwartz? Mellowing with age, he is not. From his concurring opinion:

"In essence, therefore, everything in the circuitous legal journey which followed was an exercise in superflousness and futility." Cuidado.

Speaking of school, school's out forever, at Rise Academy.

Otherwise, PCA, PCA, PCA, and PCA. That takes care of that. Off to enjoy the rest of the week of the Fourth, I guess.

I guess this also qualifies for the 3d DCA watch.

The Then Some

DOM already posted about this but being a typical criminal lawyer, he shot from the hip and didn't use technology to its fullest and post the video. So here you go.



Judge Carnes really knocked it out of the park. I love what amounts to his opening line: "It all started with a phone call."

Anyhoo, as you know way back in June we posted about the great event to support Legal Services of Greater Miami which also fosters the great tradition of South Florida Trial attorneys. You can read the post here. Today, Rumpole did a nice job mopping up and reporting regarding the finalists. It seemed appropriate to leave this task to Rumpole as the finalists were dominated by state court criminal lawyers.

The Miccosukee keep on making news! I think Magic City Casino should hire Lewis Tein. Seriously.

Enjoy your weekend.

E-Discovery Rules to Take Effect in September

E-Discovery is now on the horizon in Florida, with yesterday’s Supreme Court ruling adopting amendments to seven civil procedural rules.  The full text of the ruling can be found here.  In a nutshell, the ruling inserts the concept of electronic discovery into the Florida Rules by:

1. Amending Florida Rule of Civil Procedure 1.200 (Pretrial Procedure) to allow the trial court to consider various e-discovery issues during a pretrial conference, and Rule 1.201 to require the parties to address the possibility of an electronic information preservation and production stipulation;
2. Amending Rule 1.280, Rules of Civil Procedure, to expressly authorize discovery of electronically stored information, with some specific limitations in subdivision (d) of that rule;
3. Amending Rule 1.340, Florida Rules of Civil Procedure, and 1.350 as well, to permit a demand for electronically stored information in its ordinary or other reasonably usable form;
4. Amending Rule 1.380 to prohibit sanctions against a party for failing to provide lost discovery which was lost due to routine operation;
5. Amending Rule 1.410 (Subpoena)to permit a subpoena for electronically stored information and an objection to same.

Of additional note seems to be the frequent use of the acronym “ESI” for “electronically stored information.”  I have a feeling this one will be around for a while.

The amendments take hold on September 1, 2012 at 12:02 a.m., one minute after the effective date of the new e-service rules.

Speaking of the Miccosukee Tribe.....

 
There's been a lot of discussion about the Miccosukee Tribe lately, and into the fray comes this opinion by Judge Marcus affirming Judge Seitz in a tragic case upholding tribal immunity:

The appeal presents us with tragic facts; it also yields a straightforward legal resolution. John Furry, as personal representative of the estate of his daughter Tatiana Furry, appeals the district court’s order granting the Miccosukee Tribe’s motion to dismiss his complaint. Furr 1 y complained that the Miccosukee Tribe violated 18 U.S.C. § 1161 and Florida’s dram shop law by knowingly serving excessive amounts of alcohol to his daughter, who then got in her car, drove off while intoxicated, and ended up in a fatal head-on collision with another vehicle on a highway just outside Miami. The Miccosukee Tribe moved to dismiss the complaint on the jurisdictional ground that it was immune from suit under the doctrine of tribal sovereign immunity. In its order granting the tribal defendants’ motion to dismiss, the district court determined that tribal sovereign immunity barred it from entertaining the suit.

We agree. The Supreme Court has made clear that a suit against an Indian tribe is barred unless the tribe has clearly waived its immunity or Congress has expressly and unequivocally abrogated that immunity. Furry argues that both of these exceptions have been met here, but these arguments are ultimately without merit. Accordingly, we affirm the judgment of the district court.

There's an interesting discussion about whether modern policy concerns require that the doctrine be abrogated or narrowed, noting the interdependence of tribal activity in our Nation's commerce (I guess tribal gambling impacts the Commerce Clause more than health care?), but in the end the ball is in Congress' court:

We share these concerns about the broad scope of tribal sovereign immunity. But at the end of the day, notwithstanding the Supreme Court’s reservations about the tenuous origins of the tribal immunity doctrine and the wisdom of the doctrine’s current breadth (both points that Furry emphasizes heavily), the Court could not have been clearer about placing the ball in Congress’s court going forward: “[W]e decline to revisit our case law and choose to defer to Congress.” Id. at 760.

So good luck with that.

Happy Fourth of July, Plebes!

Dirty Laundry

http://www.justicebuilding.blogspot.com/

"I make my living off the Evening News
Just give me something-something I can use
People love it when you lose,
They love dirty laundry

Well, I coulda been [a real lawyer, but] I wound up here
I just have to look good, I don't have to be clear
Come and whisper in my ear
Give us [traffic tickets to defend]

Kick 'em when they're up
Kick 'em when they're down
Kick 'em when they're up
Kick 'em when they're down
Kick 'em when they're up
Kick 'em when they're down
Kick 'em when they're up
Kick 'em all around

We got the bubble-headed-bleach-blonde who
Comes on at five
She can tell you 'bout the plane crash with a gleam
In her eye
It's interesting when people die-
Give us dirty laundry

Can we film the operation?
Is the head dead yet?
You know, the boys in the newsroom got a
Running bet
Get the widow on the set!
We need dirty laundry

You don't really need to find out what's going on
You don't really want to know just how far it's gone
Just leave well enough love
Eat your dirty laundry

Kick 'em when they're up
Kick 'em when they're down
Kick 'em when they're up
Kick 'em when they're down

Kick 'em when they're up
Kick 'em when they're down
Kick 'em when they're stiff
Kick 'em all around

We can do "The Innuendo"
We can dance and sing
When it's said and done we haven't told you a thing
We all know that Crap is King
Give us dirty laundry!"

-Don Henley, Dirty Laundry

________________________

It is important to be courageous, to be moral, and to be honest. Always.

I recommend to Rumpole that he read the second most important book ever written. Because it is clear to me, that he has not.

Who is Bernardo Roman III (I confess here and now: if you have a "III" or a "IV" after your name, I think automatically you have had every door opened for you, you have underachieved, you have been dipping into your trust fund, and you have a big inferiority complex that is not undeserved. But that's all on me because I got nothing and for all I know, a "III" or a "IV" means res ipsa loquitor that you are a rocket scientist who stands 6 feet tall with wavy locks and a big unit.)

Anyhoo - Bernie has to be a big hitter. Right? So I looked. And nothing. No website. No published opinions. Nothing came up under his name when I googled him, and yet he holds himself out as an appellate attorney and criminal law guy. Nada. I mean, for a guy admittted to practice since 1994 and with his offices at 1250 SW 27th Ave Ste 506, according to the Florida Bar website which is a public record and available to all, like me you'd think he would not be beholden to one huge client and willing to say or do anything against anyone in a civil lawsuit regardless of the lack of supportable evidence, in order to reap huge fees and pay his bills. Right?

Check out this opinion from the Third District Court of appeal, regarding Bernie.

"Miccosukee officer and Tribal counsel, Bernardo Roman III, for reasons
mystifying to us — plaintiffs’ counsel made clear in these post-judgment
proceedings he is pursuing theories he believes would make the Tribe liable to
satisfy the judgment as well — supplied plaintiffs’ counsel with copies of checks drawn on the Miccosukee Tribe General Account payable to Lewis Tein, PL, ...in defense of Tammy Gwen Billie and Jimmie Bert in the Bermudez wrongful death and personal injury litigation, from May 2005 through April 2010. At oral argument on this petition, Mr. Roman represented that the Miccosukee Tribe had duly authorized him, as their counsel, to deliver the checks to plaintiffs’ counsel and that indeed, the Tribe itself paid Lewis Tein, PL’s, fees and costs for the defense of Tammy Gwen Billie and Jimmie Bert. In sharp contrast to Mr. Roman’s representations, Lewis Tein, PL, has placed in the record the affidavits of Interim Miccosukee Tribe Chairman (1989-2009), Billy Cypress, 5 and former Miccosukee Tribe Accounting Supervisor/Finance Officer (1990- 2009), Julio Martinez, averring that Tammy Billie and Jimmie Bert, together with his wife, Louise Bert, “were solely responsible for Lewis Tein’s legal fees,” and “[i]n all cases, those payments were either (a) charged against their distributions on a current basis, or (b) loans from the Tribe to them against future distributions.”

Mr. Roman has made plain that his duly authorized act of providing the checks to plaintiffs’ counsel was intended to influence ongoing litigation in our state courts. With the Tribe’s blessing, he has elected to insert himself into the post-judgment discovery contretemps between the parties and their counsel. An election to participate in litigation is not a one-way street. Mr. Roman cannot seek to participate in or influence litigation in another sovereign entity, the State of Florida, then retreat into his own sovereign when it suits him."
_____

Now I see. Sole practitioner, practicing less than 20 years. Huge client. Big pay day in the balance. And, according to the Third DCA, a penchant for "influencing litigation" and "participating" then "retreating." Where I grew up, we called that a sucker punch.

I guess Yale Galanter was right.

N.B. Be honest, be fair, be strong, be wise. Happy July IV!

Magistrate Judge Goodman Issues Landmark "ABC v. XYZ" Ruling!

I am so sick of plaintiff ABC.

So litigious, always suing somebody over something.

And poor innocent XYZ.

Always the victim of some overzealous ambulance-chasing lawyer, whispering sweet dollar signs into the ears of ABC.

But finally Magistrate Judge Goodman has issued a lengthy ruling disposing of the parties' claims in this long-simmering alphabetical dispute:

For example, assume that ABC Inc.’s attorney prepares a 10‐page opinion letter, containing counsel’s opinion on the viability and wisdom of bringing a lawsuit against XYZ Corp. As one would expect, assume further that the attorney’s opinion letter contains a fact‐based analysis on a witness‐by witness basis of the potential claims that could be raised in the proposed lawsuit and also evaluates the facts that counsel considers to be problematic or grounds for a possible defense.

If ABC, based on counsel’s 10‐page opinion letter, files a lawsuit against XYZ, asserting claims for fraud, conspiracy to commit fraud, and common law unfair competition, then ABC would not ordinarily be required to produce counsel’s opinion letter in the normal course of discovery. However, ABC would need, upon receipt of a proper discovery request from XYZ, to produce designees to appear at a Rule 30(b)(6) deposition and, if the issue was listed on the 30(b)(6) notice, arrange for the designee (or designees) to testify about the facts which support the claims asserted in the lawsuit.  Thus, ABC could not immunize from discovery the facts upon which it bases its lawsuit – but the obligation to provide facts in discovery does not mean that documents protected under the attorney‐client privilege and attorney work product doctrine (discussing and analyzing the facts) must necessarily also be produced merely because the protected documents happen to discuss facts.

Evaluated from the other side of the litigation coin, the mere fact that ABC properly held back an attorney‐prepared privileged document, which assesses the facts as they relate to potential litigation on a witness‐oriented perspective, does not mean that ABC is justified in keeping secret those facts if it receives otherwise proper discovery requests. Consequently, XYZ could propound the following interrogatories to ABC, and ABC would be required to provide answers: (1) what facts demonstrate that XYZ’s representations to ABC were false, (2) what facts establish that XYZ knew the factual representations were false when made, (3) what facts show that XYZ agreed with others to make materially false representations to ABC, and (4) who else agreed with XYZ to participate in the alleged conspiracy and what facts establish the knowing involvement of the other co‐conspirators?

ABC could not properly refuse to provide answers to these interrogatories, targeting the factual core of the lawsuit, by asserting that the facts are somehow privileged because its lawyer happened to evaluate those same facts (and perhaps others) in an opinion letter protected by both the attorney‐client privilege and work product doctrine. But XYZ’s ability to obtain interrogatory answers or 30(b)(6) deposition testimony about these fundamental facts would not provide ammunition for an argument that the very attorney opinion letter which prompted the lawsuit must be produced because ABC cannot protect “the facts.” Bush Dev. Corp. v. Harbour Place Assocs., 632 F. Supp. 1359, 1363 (E.D. Va. 1986) (“Counselʹs statements concerning the claimʹs likely success, even when transcribed by the client, are prime examples of the types of materials entitled to near absolute protection under Rule 26(b)(3).”); see also generally EDNA S. EPSTEIN, THE ATTORNEY‐CLIENT PRIVILEGE AND THE WORK‐PRODUCT DOCTRINE 570 (4th ed. 2001) (“documents that detail an attorney’s impressions of the strengths and weaknesses of a case are nearly, without exception, protected under the [work] product doctrine.”).

I told you it was lengthy!

Oh yeah -- happy 4th of July everyone!