3d DCA Watch -- Summer Bunker Time (and the Living Is Easy).

You can tell it's August in the bunker, as the PCAs pile up and nobody even bothers with appearances anymore.

Today we have exactly one opinion, with a Judge Shepherd dissent, involving a class action by some condo owners against Citizens Property Insurance.

I'd keep going but based even on the limited description above -- can you guess what happened?

The standard of review discrepancy is interesting -- either it's trial court abuse of discretion (majority) or full-on de novo review (dissent).

Congrats btw to Judge de la O for the win on appeal (back when he was litigating for a living).

Oh shoot -- it's almost 2:30 and I'm late for the afternoon bunker yoga class.

Gotta love this time of the year!

New Way to Represent Client: Send Tweet to Miami Herald!

All you social media quasi-lawyer types Tannebaum is always talking about, take note:  here is the intersection of law and Twitter, revealed:

An attorney representing the former University of Miami Hurricanes safety said Tuesday night that he plans to file an injunction later this week to reinstate Armstrong to the Hurricanes football team.

The Orlando-based attorney, Matt Morgan, sent a tweet to The Miami Herald on Tuesday, saying, "We do not agree with the way they have handled Ray Ray. A very talented athlete's career is at stake.'' 

Although my research is not yet complete, I'm pretty sure "Matt Morgan" is not the popular wrestler with a large Twitter following from Lake Mary, FL.

Actually, he is this guy -- hold on, Matt the Orlando lawyer has 2043 2044 followers!

(That may be more than the Herald nowadays).

Matt also has this great quote on his bio page:

The moral arc of the universe bends at the elbow of justice.
- Martin Luther King, Jr. 

Not bad, but I prefer this:

 

Read more here: http://www.miamiherald.com/2012/08/08/2938965/attorney-ray-ray-armstrong-plans.html#storylink=cpy

Getting Cute With the Line Spacing?

I'm really enjoying this suit involving "The Situation" and Abercrombie & Fitch pending before Judge Lenard.

The parties are busy briefing a motion to dismiss directed to the second amended complaint, and a motion to strike stuff from that pleading, but I found this footnote to be interesting:

Plaintiffs’ one and half spaced brief (ECF No. 75) violates Judge Lenard’s order requiring that all filings be double-spaced (ECF No. 38, p. 10) and S.D. Fla. R. 5.1(a)(4) requiring 12 point font for all text including footnotes.

Hold the presses -- could this be true?

Can you imagine somebody playing with the spacing in order to get more room in the brief?

What is the world coming to!

(Just look at that spacing above.)

(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?

Your Monday Morning Digital Dump!

Hi there, what a nice dreary way to start the work week (for those of you still here).

Let's take a quick peek around town:

1.  The Herald wades into the swamp of judicial election campaigns.

This is an interesting article because it alludes to but does not identify outright the key factors associated with winning a judicial election.  Here are the indicators:

hire a judicial consultant early
raise lots of money
have the right last name (hyphenated is even better!)
get the right endorsements
pick the right low-hanging fruit opponent
stuff the low-turnout ballot box

 2.  Gregg Fields on how all the lawyers are on vacation and one lawyer put her cell phone in a box!  (no worries, there's always an iPad backup).

3.  Turns out all the foreclosure mill investigations have gone nowhere:

With no closure and no one held accountable, there is no justice, anti-foreclosure activists say.

“I’m incredulous at this point that two years later nothing has happened,” said West Palm Beach foreclosure defense attorney Melva Rozier. “I didn’t think it would take so long. It seemed as though a lot of conduct and actions were pretty obvious on their face.”

Some have now turned their ire on the Florida Bar, which says it has power only to investigate individual attorneys, not law firms.

Despite hundreds of foreclosure-related complaints against attorneys, not a single Florida lawyer who represents banks in foreclosure cases has been disciplined for foreclosure fraud by the Florida Bar.

And all of the major players, including leaders of the Law Offices of David J. Stern and Boca Raton-based Shapiro & Fishman, remain members in good standing with the Bar.

“In my opinion, (the Bar’s) inaction — especially on Stern — counts as one of the most egregious derelictions of responsibility in legal ethics history,” said Michael Olenick, a West Palm Beach-based housing analyst with the finance research firm Nastiaco. “It leads to the question of whether the Florida Bar is protecting the people and business of Florida, or the lawyers of Florida. Their inaction strongly suggests the latter.”

What, I can't hear you -- my cell phone is in a box and the reception isn't all that great here in North Carolina.

First DCA Reverses Fee Award

The First District Court of Appeal ruled today in Williams v. Williams, a case in which the former husband appealed the lower tribunal’s denial of his petition for modification of alimony in part.  As there was no transcript and little other record, the First District Court affirmed the alimony ruling, but the $5,000.00 fee award was reversed for a lack of findings as to reasonable amount and hourly rate and the like.

Gaze Upon Judge Cooke's Scott Rothstein/TD Bank Sanctions Order!

Nice to see Rule 37 get a little teeth.

Here's part of the order dealing with GT and its lawyers:

The individual Greenberg Traurig attorneys’ handling of this case left much to be desired. The document review and production appears to have been conducted in an almost ad hoc manner. The attorneys failed to adequately conduct document searches in response to Coquina’s counsel’s requests and this Court’s inquiries. The attorneys produced key documents on the eve of trial, and in the midst of trial, because of failures in their document search and production procedures. Although I recognize that the attorneys were dealing with a high volume of documents, the amount of production errors that occurred throughout these proceedings were simply incredible, especially coming from lawyers in a well regarded firm like Greenberg Traurig, which in many ways earns its reputation from being able to litigate large, complex actions.

Having reviewed the evidence, however, I do not find that sanctions, including a finding of contempt, are warranted against any of the individual attorneys. The evidence does not support a finding that any of them acted willfully or in bad faith. Although they certainly acted with negligence, I am not prepared, on this record, to enter sanctions personally against them.

So I guess that's a partial victory (at least for the local GT lawyers).

UPDATE:  I love my readers: