It's been a while since we last visited with Magistrate Judge Goodman, but I see that he has entered a very scholarly order on a spoliation motion seeking the dismissal of a party's pleadings.
In analyzing the legal standard, Judge Goodman sets the bar pretty high:
Given this circuit’s requirement that an adverse inference flowing from spoliation requires the presence of bad faith, even grossly negligent conduct would not justify that type of jury instruction when it is not accompanied by bad faith. . . . Because this circuit requires a showing of bad faith before sanctioning a party when there is spoliation of evidence,courts in this circuit must refrain from imposing sanctions when no bad faith is shown.
Ok, I agree.
But how could the song-spouting jurist miss an easy George Michael reference?
This time I have to believe he's speaking directly to me:
Bob Dylan’s recognition that “[b]ehind every beautiful thing there’s been some kind of pain” 1 might seem painfully ironic to Amber Wright. Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional “scars that the sun didn’t heal,”2 all of which led to this lawsuit. Wright filed this products liability action under Georgia law alleging that a hair bleaching product manufactured by Farouk Systems burned her scalp, causing her to suffer physical, mental, and emotional pain. She claims that the product—colorfully named “Blondest Blonde”—is defective because it contains isolated areas of high reactivity, called “hot spots,” that can lead to burning of the scalp. She also claims that Farouk failed to adequately warn users of the product of the risk that burns can result if the product touches the scalp. The district court granted Farouk’s motion for summary judgment on all of Wright’s claims, and this is her appeal.
Note to Magistrate Judge Goodman -- here's the clean and lean way the Judge cites the Dyl-Bard:
1 Bob Dylan, “Not Dark Yet,” on Time Out of Mind (Sony Records 1997). 2 Id.
See, that's all you need!
BTW, I figured he would have went with "Silvio," from Down in the Groove (Columbia 1988):
I can tell you fancy, I can tell you plain You give something up for everything you gain Since every pleasure's got an edge of pain Pay for your ticket and don't complain
On July 23, 2009, Connie Strickland had been “working on the railroad / All the live-long day.” 1 In fact, he claims he was working his customary twelve-hour shift when, towards the end of that shift, he suffered a massive shoulder injury as a result of a faulty handbrake.
And here's Judge's Fay citation (note to the wordy):
1 A popular American folk song, the first published version of “I’ve Been Working on the Railroad” seems to have been in a 1894 Princeton University songbook. See James J. Fuld, The Book of World-Famous Music 309 (Dover, 4th ed. 1996).
What, nothing about the recording studio where it was first cut? What about how high it charted in the UK? Who played bass on the original version? Where can I find John Denver's cover of this classic? Come on, these are basic musical reference questions we expected answered down here.
How'd you like to get this order come across your fancy iPhone while you are enjoying lunch?
It's an order from Magistrate Judge Goodman, scheduling a sanctions hearing against plaintiff QBE Insurance and its attorneys stemming from a summary judgment in favor of the defendant that Judge Gold granted (the sj order is here and the motion for sanctions is here):
First, without ruling on whether an evidentiary hearing is required, the Undersigned believes it is appropriate, given the potential consequences to the Plaintiff and its attorneys, to schedule one, similar to the evidentiary hearing used in Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d 1230 (11th Cir. 2006).
Second, QBE and its counsel shall submit a notice by August 15, 2012, listing all the witnesses they intend to have testify at the evidentiary hearing, along with a reasonable estimate of the amount of time each witness is expected to testify for on direct. The Court anticipates that no witness will testify on direct for more than an hour. In fact, the Court perceives that most, if not all, of the witness will complete their direct testimony in half an hour or less. If counsel believe additional time (i.e., more than one hour on direct, per witness) is required, then they shall explain why.
Third, Jorda shall have until August 20, 2012 to submit a list of additional witnesses it intends to call at the hearing. Jorda will also provide an estimate of the anticipated length of the direct testimony.
Fourth, the Court anticipates that the witnesses will be either current and/or former employees of QBE, current and/or former attorneys and other employees of the law firm representing QBE in this case up through the entry of summary judgment, current and/or former residents of the condominium involved in the underlying litigation surrounding property damage to the complex and any investigators or consultants used by QBE and/or its counsel. The Court suggests that counsel cooperate and facilitate the attendance of witnesses through acceptance of subpoenas, agreements to produce witnesses at the evidentiary hearing, and otherwise.
Fifth, I think somebody could be in deep doo doo!(I added that last part).
Reading the sj order and sanctions motion, I'm not sure what probative testimony the witnesses could provide -- the sanctions motion appears to be based on pure legal grounds (which Judge Gold accepted).
Apparently you need to ask for responsive documents first before the other side has to list them on a privilege log:
Rule 26(b)(5)(A) requires a party to describe privileged documents “when a party withholds information otherwise discoverable.” A document is not “withheld” unless it was requested. The term “withholds” necessarily incorporates the threshold notion that a request for a document was made – otherwise, the document is not being “withheld.”
Makes sense.
But then why did the SEC offer up boilerplate privilege objections rather than state that there were no responsive documents?
In response to the document production request, the SEC interposed not only a general privilege objection (in the introduction section of its response) seemingly applicable to many of Merkin’s requests [ECF No. 55-2, p. 2, ¶ 4], but it also made privilege and work-product objections to nearly all of Merkin’s individual requests as well. These boilerplate objections suggested that privileged documents responsive to Merkin’s requests did, in fact, exist, and that the SEC was withholding those documents. Therefore, Merkin was certainly justified in concluding that the SEC should have provided a privilege log. After all, why else would a party assert a privilege if no responsive documents exist in the first place?
Because that's just what some litigants do?
Boilerplate boilerplate boilermaker.....
Generalized objections asserting attorney-client privilege or the work product doctrine do not comply with the Local Rules. Local Rule 26.1(g)(3)(B) requires that objections based upon privilege identify the specific nature of the privilege being asserted, as well as identifying details such as the nature and subject matter of the communication at issue, the sender and receiver of the communication and their relationship to each other. Parties must refrain from making vague, blanket objections in the form of: “Objection. This information is protected by attorney/client and/or work product privilege.”
Boilerplate objections, such as those made by the SEC, are inadequate, meaningless, and preserve nothing for the party making such objections. See Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 689 (S.D. Fla. 2011); Benfatto v. Wachovia Bank N.A., No. 08-60646, 2008 WL 4938418, at *2 (S.D. Fla. Nov. 19, 2008). Nowhere is the accuracy of this principle more apparent than here.
But they feel so good!
Now comes the part about the aspirational hopes and dreams of the "best-practices litigator":
At a minimum, the SEC seems to have taken a discovery stance which is inconsistent with one of the basic tenets of the Discovery Practices Handbook: “Discovery in this District is normally practiced with a spirit of cooperation and civility.” (emphasis supplied).
To be sure, it was in the SEC’s strategic best interest to remain quiet and to permit the discovery deadline to expire before clearly articulating its position. And, on the other hand, Merkin did not begin his written discovery until late in the game and did not request the documents the SEC has not produced. Moreover, it is unlikely that Merkin would have been able to obtain the privileged documents had he timely and specifically asked for them (assuming the SEC would have then finally listed the privileged documents on a privilege log). Adopting a cooperative attitude would have caused the SEC to simply and timely advise Merkin that it was not providing a privilege log because the documents subject to the privilege claims had never been included on a document request. Or alternatively, the spirit of cooperation would have at least required the SEC to refrain from making confusing and arguably disingenuous objections in the first place.
Question: is the "spirit of cooperation" alive and well in our District when it comes to discovery?
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.
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.
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.
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.”).
People who compete against each other in the same business or profession don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.” But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.
Very curious -- note how the Judge casually, unobtrusively cites the great Jackson Browne song "Lawyers in Love" without an elaborate, digressive 300-plus long footnote/citation/educational string.
People who compete against each other in the same business or profession don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.”1 But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.
1 --For a musical reference to "lawyers being in love," see "Lawyers in Love," a song sung by Jackson Browne. Recorded in Los Angeles, the song was written by Jackson Browne and reached the #13 position on the U.S. music charts in the summer of 1983. http://www.allmusic.com/song/lawyers-in-love-mt0005091017 (last visited June 21, 2012). Focused on Cold War concerns and a distrust of the perceived superficial, empty values of the Reagan Era, the song contains the following lyric:"God sends his spaceships to America, the beautiful They land at six o'clock and there we are, the dutiful Eating from TV trays, tuned into to Happy Days Waiting for World War III while Jesus slaves To the mating calls of lawyers in love"http://www.oldielyrics.com/lyrics/jackson_browne/lawyers_in_love.html (last visited June 21, 2012).
Actually, I think "fat" Elvis is quite unfair to the Big Man -- I prefer "sweaty" Elvis, "drugged out" Elvis, "velvet oil" painting Elvis, "bizarre Karate-chopping" Elvis, "huge pork chops on your face" Elvis, "crying-at-any-moment onstage" Elvis, these are all much more affectionate terms in my opinion.
Ok, let's get to it.
Question is whether incident reports prepared by a cruise ship vendor operating a bobsled ride.......
STOP -- never go on a bobsled ride.
If you are abovethe age of 10, you have no business being on a "bobsled ride" in Jamaica or anywhere else.
Sheesh, what is with people!
Anyway, the reports were prepared at the direction of the bobsled vendor's general counsel, and therefore are work product, according to Judge Goodman:
Moreover, Gentry cannot show a substantial need for these documents. Counsel often assume that when opponents withhold documents upon a claim of privilege, that they do so because they are in fact sitting on a smoking gun. Consequently, counsel propounding discovery often suspect automatically that the opponent is asserting the work product doctrine because the adversary is trying to hide significant, adverse evidence3 .
But based on its in camera review, the Court can report that this is not the case here. In fact, despite all the argument on this issue, these documents are not particularly helpful to proving Gentry's allegations. To the contrary, the two incident reports and one email are comparatively innocuous documents which simply report the basic information about the incident -- information which Gentry either already knows or will likely soon know based on deposition testimony obtained during discovery.
Umm, hey judge, didn't you just sustain the privilege? Then why disclose your opinion about the hum-drum nature of the contents of the reports? I mean, how much more is there to disclose?
And then there's footnote three:
For a musical reference to this attitude, see "Suspicious Minds,'' a song sung by Elvis Presley. Recorded at American Sound Studios in Memphis, the song was written by Mark James and reached the #1 position on the U.S. music charts on November 1, 1969. http://oldies.about.coe od/elvispresleyhistog/isuspicious minds.htm (last visited May 2, 2012). The song contains the following lyric: "We can't go on together with suspicious minds, and we can't build our dreams on suspicious minds.'' http://- .elyrics.nevreaie/elvis-presley-lyrics/suspicious-minds-lyrics.html (last visited May 2, 2012).
Yes, the location where it was recorded (Memphis), the particular recording facility (American Sound Studios), the songwriter (Mark James), and the highest chart position and date of same (#1, 11/1/69) are integral to any effective musical reference.
BTW, what did the producer that day -- Chips Moman -- have for lunch?
3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at http://www.lyrics007.com/Keith%20Urban%20Lyrics/You%20Look%20Good%20In%20My%20Shirt%20Lyrics.html. Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, http://www.biography.com/people/keith-urban-193217 (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.
The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).
Oy veh -- next he'll take two paragraphs to explain what "it's better to be safe than sorry" means.
It was always my understanding that the email address provided for the submission of proposed orders in federal Court was to be used strictly to (1) delight the Judge with your cute kitten pictures; (2) share highly partisan derogatory quips about President Obama (they're so funny!); and (3) involve the Judge in ponderous email chains that require the recipient to forward long-discredited urban rumors to ten "friends" or else face doom and gloom and the death of the aforesaid cute kitten.
Oh yeah -- and also to let the Judge know you substantively object to a proposed order.
Counsel of Record may submit proposed orders on motions, where required by a rule or procedure of the Court, to the Court's e-file inbox. However, counsel may not email the Court for any other reason.For example, counsel may not send an email response to the submission of a proposed order. If a party objects to a motion, then the only appropriate procedure is to file a formal , written objection with the Clerk of Court.
Sheesh, come on folks -- you're not in state court anymore!
(BTW, is it just me or is the Judge being deliberately vague as to cute kitten pictures?)
The Honorable Jonathan Goodman, United States Magistrate Judge, will address the must-hear-this topic: "Rock & Roll Music in Judicial Opinions"
Coming on the heels of Judge Gold's excellent mindfulness and wellness presentation, I must ask the obvious question: just what the hail is going on over at the FBA?
I'm just wild about saffron....
As you know we have been closely documenting Judge Goodman's rock-and-roll (and country!) references, as well as the elaborate (some would say byzantine) 300-word citation system he employs to simply name-check a Petty song.
All kidding aside, this one is a winner -- the presentation is on April 11 and you can grok all the groovy details here.
Don't get me wrong, Magistrate Judge Goodman's orders are always a treat and I particularly enjoy the various and far-ranging references sprinkled therein.
In this one he goes to elaborate lengths in a footnote to explain the old precautionary principle"it's better to be safe than sorry":
To invoke a well-known proverb, Jorda may have been best served by following the rule that it is “better to be safe than sorry.” This popular idiom means “it’s wiser to be cautious and careful than to be hasty or rash and so do something you may later regret.” The saying is well-known enough to be used in popular music. For example, singer/songwriter Alicia Keys used the proverb in “Un-thinkable (I’m Ready),” a remix she performed with hip-hop artist Drake. http://oxforddictionaries.com/definition/better (last visited March 19, 2012); http://www.lyricsondemand.com/a/aliciakeyslyrics/unthinkableimreadyremix1lyrics.html (last visited March 19, 2012).
Ok, the Alicia Keys cite is a bit of a stretch but it does show creativity.
More importantly, if you don't already know the meaning of this idiom you probably have no business practicing law.
Finally, speaking of footnotes, I'm pretty sure the footnotes in this order exceed the text -- Judge, as a famous and sultry singer once crooned, "put it in a love song."
Always a vexing issue, Magistrate Judge Goodman directly confronts a corporate witness who was unprepared and had no knowledge of many of the items identified on a Rule 30(b)(6) depo notice:
First, in response to a 30(b)(6) corporate deposition notice listing 47 topics, QBE produced one witness, a claims examiner, and announced for the first time at the deposition that its designee did not have knowledge on many issues but agreed to produce another corporate representative who would have the requisite knowledge. QBE intended to secure one or more representatives from the insured condominium association, but that plan was thwarted. Nevertheless, the one representative it did produce was unable to adequately answer questions on many topics and he reviewed only a small portion of the documents which QBE had or had access to before the deposition.
For this first scenario, sanctions are appropriate. Because the discovery deadline has expired, because QBE did not fulfill its obligation to properly prepare its own designee, because QBE waited until the corporate representative deposition began to give notice of its designee’s partial inadequacy and because its designee could have (but did not) review substantially more material in order to be a more-responsive witness, Defendant’s requested sanction will be imposed. Specifically, QBE will be precluded from offering any testimony at trial on the subjects which its designee was unable or unwilling to testify about at the 30(b)(6) deposition.
He also gives a fantastic 39-point(!) primer on the law regarding 30(b)(6) depositions and the obligations on the corporation and counsel to adequately prepare a witness for deposition.
To borrow lyrics, albeit out of context, from a Keith Urban song, “And maybe it’s a little too early / To know if this is gonna work.”3
Ok Judge, I'm with you.
Let's see what footnote three says:
3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at http://www.lyrics007.com/Keith%20Urban%20Lyrics/You%20Look%20Good%20In%20My%20Shirt%20Lyrics.html. Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, http://www.biography.com/people/keith-urban-193217 (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.
Oy -- you were doing great until you big-footed it right at the end!
Longtime international attorney, George Rocky Harper of Harper Meyer, believes the perception of Miami’s legal market has changed. “Miami is viewed as a lower-priced alternative to New York with equally as sophisticated lawyers.”
I was troubled to learn that several South Florida business leaders were taken on junkets to see other Genting properties in Asia without full disclosure of who attended, what they saw and the cost of these trips paid for by Genting. I am not suggesting that these trips are improper. However, in our rush to love the proposal and Genting we must not lose sight off the public’s need to know who is influencing the process and why.
Come on, Mike -- this is Miami we're talking about.
3. Magistrate Judge Goodman is a better researcher than the lawyers who appear in his courtroom:
Both parties provided the Court with citations to a variety of federal circuit and district court opinions at the hearing in support of their positions. But no party provided the Court with a case from either the Eleventh Circuit or any district herein that specifically addresses this question (i.e., whether a treating physician may provide opinion testimony on causation, future treatment, and extent of a disability without the submission of an expert witness report). Nonetheless, this Court was able to find authority from within this circuit that squarely addresses the issue presented here.
