Spencer Aronfeld Brings You the Worst!

Ron Worst, that is.

In other news, GB points out this gem from the Emmanuel Roy/Peter Mayas contempt proceedings before Magistrate Judge Turnoff:

Then Mayas skipped a court hearing last week, in part he said, because he got sick after undergoing a colonoscopy. But the judge wasn't buying it .

"There's simply no excuse'' for his failure to show up in court last week, Turnoff told Mayas.

When Coulton's lawyer, Paul Petruzzi, told the judge Mayas had not handed over the keys to his vehicle and his Monarch Lakes home, the judge demanded he turn over the keys in court.

As Mayas fumbled with his briefcase and his keyring for what seemed an unnecessarily long time, the judge cracked: "I bet the colonoscopy was easier than this."

Seriously, you can't make this stuff up.

The Markus Fights Back!

Dr. Ali Shaygan and David Markus (pictured above) have petitioned the Supreme Court to review the 11th Circuit's reversal of sanctions in a prosecution so marred by allegations of prosecutorial misconduct that Judge Gold awarded over $600k in fees.

BLT has the latest:

More than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct, taking a position in the case against the Justice Department.

The coalition, which includes retired district and appellate judges, and former U.S. attorneys, is advocating for a doctor in Miami whom the government unsuccessfully prosecuted in a drug case. The statute in question allows defendants to recoup fees if the government's stance in a criminal case was "vexatious, frivolous or in bad faith."

The doctor, Ali Shaygan, was awarded nearly $602,000 in legal fees following the botched prosecution, marred by claims of prosecutorial misconduct. The trial judge sanctioned the government for, among other things, a witness tampering probe against Shaygan's attorney and the prosecutors' alleged violation of disclosure requirements.

But an appeals court overturned the fee award, saying that the prosecution was objectively reasonable. The divided ruling set up the appeal in the Supreme Court, which has not acted on the petition that Shaygan's lawyer, David Markus of Miami's Markus & Markus, filed this summer.

Thomas Goldstein of Washington's Goldstein & Russell is representing the former judges and prosecutors in support of Shaygan. Click here for a copy of the brief, filed August 9.

Wilmer Cutler Pickering Hale and Dorr filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers. Mark Srere of Bryan Cave is counsel of record for The Constitution Project on its amicus brief.

I don't know much about this stuff, but I do know Judge Gold rarely gets things like this wrong.
 
I'm partial to the amicus filed by the physicians' group AAPS, which has this:

Notably absent from the overzealous prosecution of Dr. Ali Shaygan – and from the panel opinion below – is attention to the fundamental requirement of mens rea. Such omission is common now, as the requirement of proving criminal intent in federal court for convictions and sentencing is disappearing, while state courts still take it seriously. Federal court prosecutions are becoming more utilitarian in nature, as unconscionably long prison sentences are increasingly the goal regardless of whether mens rea exists or is commensurate with such punishment.

In light of this trend, the deterrence against prosecutorial wrongdoing provided by the Hyde Amendment is even more important. As emphasis on proof in federal court of mens rea at trial and sentencing declines, the risk of unjustified prosecutorial actions increases. And with that growing risk comes the enhanced possibility of prosecutorial misconduct in quest of the utilitarian goal. If the Hyde Amendment loses its meaning, then there will be no meaningful restraints on a utilitarian, “end justifies the means” approach to prosecution. Engaging in wrongdoing to convict an innocent man, in order to deter future crimes, can even be rationalized under a utilitarian approach to justice. See Stephanos Bibas, “Bring Moral Values into a Flawed Plea-Bargaining System,” 88 Cornell L. Rev. 1425, 1428 (July 2003) (observing, and criticizing, the view that “guilty pleas by innocent defendants [is] a great utilitarian boon”).

Guess I'm a sucker for philosophy in a legal brief.

Also, footnote 2 is a must-read!

Another Reason to Not Check Emails at Lunch.

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).

(I Can't Get No) Cooperation!

Here's another fine Magistrate Judge Goodman order, this time on privilege logs.

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?

Special Friday 3d DCA Watch -- Somebody Pissed Somebody Off Edition.

To learn more, click here.

3d DCA Watch -- Welcome to BIB!

The short-sleeved robes are out at the bunker, heralding the cyclical change in bunker seasons typically running from mid April until late this year when the mechanical closet/gym is transformed into the swanky, ultra-chic BIB (aka Bunker Ice Bar).

For those who have never been, BIB is an invitation-only, must-see sensory experience -- the ice sculpture of Judge Schwartz is reason enough to find a way in past the velvet ropes concrete doors, not to mention the famous BIB house cocktail, a heady concoction served in a gavel glass molded from clear ice and known simply as the "Apodictic Doppelganger."

Hmm, I'm seeing double already.....

Onward:

E&H Cruises v. Baker:

Venetian Salami, peoples!

Valesquez v. South Florida Federal Credit Union:

Judge Salter holds his nose and but otherwise affirms how a credit union "aggressively" went after the repossession of a couple's boat.

Deutsche Bank v. Cagigas:

How many times have we gone over the Kozel factors, trial judges?

Sheesh -- make the express findings before you dismiss a case as a sanction.

It's the least you could do (plus it's the law).

Maybe You Should Prepare Your 30(b)(6) Witness?

 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.

And he awards attorneys fees!

Where Were You When PACER Went Down?

I know most good lawyers like to serve their Rule 11/sanctions motions on a Saturday, but you may need to move it up a day, as PACER goes down nationwide this weekend:

There will be nationwide maintenance on the PACER system Saturday, January 14, 2012. The disruptions will begin at 9 AM ET and continue until 6 PM ET. PACER users may have sessions terminated or experience difficulty logging in to the system. CM/ECF filings will be accepted but viewing docket sheets, or reports will be disrupted. We apologize for the inconvenience. 

Listen, don't be upset -- if opposing counsel receives email notification of your motion while having dinner with her family Friday evening, you can have almost the same intended impact!

Attention: District Judges Must Give Reasons For Their Rulings!

This may seem like business as usual for our state court practitioners, but apparently even federal district judges can forget to provide a basis for appellate review:

Abuse of discretion review, however, requires something for us to review.  When ruling on a motion for attorney’s fees or sanctions, the district court must provide an explanation of the basis for its ruling that is sufficient to allow for meaningful appellate review.
. . . .
Although the district court did find that Arugu’s motion for voluntary dismissal was itself not made in bad faith, its denial of the City’s motion for sanctions and attorney’s fees was not accompanied by any explanation, analysis, or findings. The court gave no reason for rejecting the City’s contentions that Argu had filed a frivolous § 1983 claim and had unreasonably multiplied the proceedings. We therefore vacate the order denying sanctions and attorney’s fees and remand for the district court to revisit the issue, make appropriate findings, and explain its decision.

Dear clerk readers, please now plan on heading to South Beach for drinks thirty minutes later than usual.

New Math: Joe Klock + Notice of Appearance = Judge Seitz Recusal.

We've been tracking the sanction proceedings before Judge Seitz triggered by counsel's filing of an emergency motion to stay one of the Judge's orders.

Since then Receiver David Mandel filed an order to show cause and motion to disqualify the subject law firm, and on October 5th none other than Joseph P. himself entered an appearance to handle the disqualification motion only.

Joe's notice directly led to Judge Seitz' recusal:

Last night attorney Joseph P. Klock, Jr. entered his appearance in this matter on behalf of the law firm and attorneys of Ivy, Miller & Walker, P.A. Klock's clients are presently subject to a motion to disqualify counsel and may also be called as witnesses in this case. Klock is the former law partner and father of the goddaughter of the undersigned Judge. The undersigned Judge is currently planning a bridal shower for Klock's daughter scheduled for next month.

Mazel tov on the wedding Joe!

(Sorry about that, Judge Cooke.)

Judge Seitz Spares Robert Ingham Further Sanctions.

In the very long saga of Fort Lauderdale attorney Robert Ingham's doomed representation of MCS against Essent Healthcare, Judge Seitz has elected to not award Essent the $87k in fees recommended by Magistrate Judge O'Sullivan as an additional sanction for vexatious litigation conduct.

Judge Seitz' order is instructive and worth quoting at length:

Considering all of the record evidence, the Court believes the proper exercise of both restraint and discretion requires no monetary sanctions against lngham under the Court's inherent powers or section 1927. While not awarding monetary sanctions, the record reflects that the questionable litigation tactics Ingham employed during the course of this litigation have resulted in adverse consequences to him . The Court referred Ingham to The Florida Bar for a psychological and competency evaluation because his conduct evidenced a fundamental incompetence and questionable connection with reality that can best be addressed through the pending discipline process. The Court also referred him to the Chief Judge of this Court and the peer review committee to determine whether Ingham should be removed from the Bar of the Southern District of Florida. MCS terminated lngham and filed a complaint with The Florida Bar against him. And while the words of this Order might not constitute a formal sanction, harsh words that reflect adversely on a lawyer's professionalism always should be treated as a form of punishment for attorney misconduct.

Can't argue with that.

After Pleadings Are Struck as a Sanction, Can You Recover Costs?

This is a situation you don't want to find yourself in:

1.  Your pleadings are struck as a sanction.
2.  Court refuses to award fees and costs as part of the sanction.
3.  Nonetheless, Defendant seeks award of costs as "prevailing party."

Are they recoverable?

Judge Seitz says yes:

Plaintiff first argues that the Sanctions Order precludes an award of costs. Plaintiff relies on the Court's conclusion, in the Sanctions Order, that "assessing attorneys' fees and costs against Aguiar in addition to the dismissal of his claims and pleadings would amount to an abuse of the Court's discretion and would not be an appropriate sanction under the circumstances." See DE-301 at 28. Plaintiff argues that to impose costs would violate the Court's previous ruling and would add additional monetary sanctions to the Sanctions Order. Despite Plaintiffs Objection, the Sanctions Order does not foreclose the awarding of costs pursuant to Federal Rule of Civil Procedure 54(d)(I) and 28 U.S.c. § 1920. The Sanctions Order specifically declined to award costs as a sanction; it did not address awarding costs to the prevailing party. Plaintiff has not objected to the finding that Katten was a prevailing party. Thus, this objection is overruled and Katten is entitled to costs as a prevailing party.

On a positive note, however, the plaintiff was not assessed costs for bates-numbering, so you could look at it as a partial-victory.

3d DCA Watch -- Rules Are Stubborn Things Edition.

Did you realize that standing up, raising your hands and exclaiming "IF YOU KNOW" in a loud, really obvious way after a question is posed to your client at a deposition could somehow be construed as coaching?

What, little 'ole me?  I was just clearing my throat.

But PA attorney Max Kennerly in a fine article here thinks obstructing the deposition any way you can in order to save your client from telling the truth may not be permissible after all:

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” If an attorney has an objection to a question, then what they must do is also quite clear under Fed. R. Civ. P. 30(c)(2):

An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

That is to say, the defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.

Could you imagine how depositions in South Florida would proceed if everyone simply abided by these rules?

(Then again, what fun would that be?)

Speaking of rules, our bunker buddies remind us this week that -- yes, they exist; and yes, you should probably follow them:

Clarke v. Henderson:

For all you fine jurists taking notes at home, here is the correct legal standard for reviewing a motion for judgment on the pleadings:

It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings—which includes consideration of exhibits attached thereto—and may only be granted if the moving party is clearly entitled to a judgment as a matter of law....In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false.

It's that second part you have to watch out for.

940 Lincoln Road v. Hernandez:

This is an unemployment appeals commission appeal in which the employee testified that she was sexually harassed and the employer did not participate:

Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.

What's that rule on unrebutted testimony again?

Oh yeah:

Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts.

Duly noted!

Kevin Gleason Offers Wine as Peace Offering to Bankruptcy Judge Olson.

So it all comes down to this: an apology and a bottle of wine.

What, no flowers?  No chocolate?

And guess what -- those vituperative responses was all borne from frustration:

B. The Responses Are the Product of Frustration.

14. Attorney Gleason’s responses are the product of frustration due in large part to the
Court’s mistaken conclusion that his client had assented, pursuant to an agreed order, to the turnover of his commission to the plan administrator. The proper method to seek redress in such circumstances is to file an appeal, which Attorney Gleason did. During the pendency of the appeal, which was filed on November 4, 2010, the Court issued the Show Cause Order and later submitted the order for publication with Westlaw. This unfortunate turn of events escalated what was initially perceived as a mere legal conflict into something more personal in nature. The Responses, while intentional, do not reflect a dishonest or selfish motive.

I see -- the old "Westlaw-as-provocation" defense.

In other words, the judge should have kept quiet about the whole thing, but he had to go and blab about it to all our neighbors!

3d DCA Watch -- 57.105 Day!

I'm pretty sure every lawyer loves to threaten another lawyer with section 57.105 sanctions, especially by email or letter.

Nothing is more momentarily satisfying yet ultimately devoid of any real significance whatsoever.

But when you go ahead and serve the motion, then your lasting feelings of superiority and Domineering Overlord Type-A Top Dogness kick in, at least for a day or two until you get a nasty response and a countermotion for fees and sanctions.

Which brings us to today's 3d DCA Watch and a fundamental rule of 57.105, the 21 day safe harbor period.

Who could possibly be unaware of this rule?

On appeal, the City argues that the trial court erred in granting the motion for attorney’s fees and costs because the claimant failed to follow the twenty-one day “safe harbor” provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that the claimant failed to adhere to the requirements of subsection 57.105(4) by filing its motion on September 11, 2009, one month after the trial court entered the order granting the claimant’s motion for summary judgment. See O’Daniel, 916 So. 2d at 41 (holding that motion for attorney’s fees was untimely under subsection 57.105(4) where motion was served and filed following the conclusion of the trial).

Based on the authority of Davidson v. Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007), we agree with the City that the trial court erred in granting the claimant’s motion for attorney’s fees and costs.

Come on, the 21 day period wasn't observed, seriously?

Yes, Virginia, this is why we have appellate courts.

One Way to Answer an Order to Show Cause.

Gleason Response

Anyone remember SD FL Bankruptcy Judge John K. Olson?

Well on March 31st he entered an order to show cause against Hollywood bankruptcy attorney Kevin C. Gleason, reported at 2011 WL 1355300 (Bankr.S.D.Fla).

Kevin's response is an interesting read, to say the least.

The opening paragraph is a doozy -- so much for mindfulness...

(It would have made a really great first draft!)

To my loyal tipsters -- what happened at the 4/20 hearing?

Magistrate Judge Goodman Cites Justice Scalia on Civility!

 Sanctions on Admissions
 
I'm beginning to appreciate Magistrate Judge Goodman's orders.

They have a certain directness to them, and his holdings are clearly expressed and supported by both logic and common sense.

This one dealing with sanctions for inaccurate responses to requests for admissions is a good example.

Although I do think there can be circumstances pre-trial where, akin to an sj ruling, a response can be deemed so false or inaccurate as to be sanctionable, for the most part I agree with the Judge's holding that this is reserved under Rule 37 for after trial or an adjudication of the disputed facts.

He throws in a Napoleon reference, also good.

Finally, I was right with the Judge up until the very last part of this quote:

In this spirited litigation, both sides have strongly pressed their positions at every junction and neither side has shown great willingness to make concessions, even on what are usually considered professional courtesies, such as accommodating colleagues’ deadline and scheduling issues. As a general matter, allegations of bad faith against opposing counsel, in addition to being in poor taste, are not helpful in aiding the Court’s adjudication of disputed issues. See ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE, THE ART OF PERSUADING JUDGES 34-35 (2008) (“Cultivate a tone of civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. . . . ‘An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.’”) (quoting Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 TUL. L. REV. 207, 224 (1995)).

Hold on -- Justice Scalia instructing on civility?

Guess there's a first for everything.