Tuesday, March 28, 2017

Maryland subpoena rule expands to allow forced access to your land.

New court rules broadening the power of subpoenas have been approved by our Maryland Court of Appeals. Effective April 1, 2017 a Maryland litigant may obtain access to the real property of fellow litigant or third-party by issuing a discovery subpoena. 

Rule 2-422 allows one litigant to issue a subpoena to another litigant: 
to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property...

Companion Rule 2-422.1 creates the same forced rights of access over the land held by someone not a party to the court case. This rule has many more procedural requisites intended balance the interests of third-parties who are strangers to the lawsuit, and to provide leverage over those same third-parties to permit litigants access to relevant and material information.

There are dozens of reasons to compel access over the lands of others, ranging from obvious disputes over access to questions of visibility and testing of eye witness accounts in many other types of cases. Let your imagination run wild.

Thursday, March 16, 2017

Broaden your perspective on law and the Executive Branch.

We are sharing a link to a newly published collaborative blog. It is focused on law and the Executive Branch. This includes questions about legal limits on the President's exercise of authority. Multiple contributors promise a balanced view.

Sunday, March 5, 2017

Password protect your production, please!

Document production has always been an arduous task for lawyers. Collection and review for privileged information, followed by redaction and creation of privilege logs accounts for large chunks of time, and commensurate expense, in civil litigation. We are careful because it is important to protect our client's privileged communications and our own work-product. It would never occur to any civil litigation lawyer to simply invite access to a client's files without some prior review.

But mistakes happen. Years ago, when faxed transmissions were the latest in technology, a court was asked to determine if privilege had been waived when one law firm inadvertently faxed information to all opposing law firms. Care in use of the new technology was widely counseled as a result of the case.
And here we are, again.
It is increasingly common in our practice to share voluminous document productions via cloud based applications, such as Box and Dropbox. The risk of not implementing the most basic password protection, let alone proper vetting before an upload, is fully on display in the February 9, 2017 decision Harleysville Ins. Co. V. Holding Funeral Home, a federal district court case out of Virginia.
In connection with pretrial discovery the insurance company plaintiff uploaded privileged video files to Box.com for sharing among its own employees and a related entity. The link was not password protected and was later shared with the insurance company's lawyers who included the unprotected file in a larger production made to a lawyer for the other side, who further shared the link with other defense lawyers. The privileged nature of the cloud based files was recognized by the defense lawyers, who elected to review the files without making any disclosure to the producing party. The sharing and subsequent disclosure was inadvertent- the downloading, reading and further sharing by the opposing defense lawyers was not.
The insurance company's lawyers discovered the inadvertent disclosure when the protected folder was produced in a reciprocal production by the defense. A back-and-forth ensued among counsel involving demands for return and destruction of the electronic files. The dispute triggered the insurance company's motion to disqualify the defense lawyers.
A federal judge ruled that the lawyers did not have to be disqualified as their replacements would continue to have access to the inadvertently obtained files. But the court went a step further to sanction the defense lawyers for having downloaded, read and shared the clearly privileged items. Citing well known ethical obligations the court chided counsel for not having notified the insurance company's lawyers of the inadvertent disclosures. Ethically speaking, the matter should have stopped there- the material should have then been removed from circulation. But for the failure to act ethically, the court ordered payment of the insurance company's legal fees associated with the motion.
Of course, the further distribution of the inadvertently produced files would have been prevented by application of password protection to the particular folder.
Accidents happen, and careful lawyers make inadvertent disclosures. But even the most contentious cases are guided by ethical constraints on the unfair use of mistakenly disclosed information covered by privilege. In our own practice we recently received a large electronic production via Box.com. Notice was given by one of the other lawyers that the upload inadvertently contained privileged information. This was followed by a quick acknowledgement among all other lawyers in the case that no access would be made until the production was properly adjusted--no harm, no foul.
After thirty years of practice I take comfort in the high ethical standards of my peers, even where we disagree on the facts, law and likely outcome of a case. But there is no need to unnecessarily test the boundaries of your opponent's ethics, so set a password, please!

Saturday, January 28, 2017

Checks and balances temporarily beat back Prez Trump's muslim immigration ban.

On January 28, 2017 Judge Ann Donnelly of the U. S.District Court for the Eastern District of New York entered an order staying operation of the Administration's faith-based travel ban.  A full copy of the order can be read here.

In Seattle, Judge James Robart entertained a similar motion and also entered an order staying operation of the travel ban. Here is a one hour video of the full court hearing, leading to his decision.

Here is the complete docket for the U.S. Court of Appeals for the Ninth Circuit where you can read all filings in the appeal.

Want to help the lawyers fighting the faith-based travel ban? Contribute.

February 10, 2016: Here are some links of interest, after the appellate court's decision to leave the temporary stay of the Executive Order in Place--

  1. February 9, 2017 Opinion of the U.S. Court of Appeals for the Ninth Circuit.
  2. Summary of the various Amicus Briefs filed by others.
  3. Amicus Brief of HIAS, a refugee relief organization.
  4. Amicus Brief of fifteen States and the District of Columbia.
  5. Memorandum of law to the Amicus Brief of fifteen States and D.C.
  6. Amicus Brief of the Fred Korematsu Ctr. for Law and Equality.
  7. Amicus Brief of the Anti-Defamation League.
  8. Amicus Brief of the ACLU and ACLU of Washington State.
  9. Amicus Brief of technology companies and various businesses.
  10. Motion for leave to file as Amicus Curiae by various law professors.
  11. Amicus Brief of Freedom Watch in favor of the Executive Order.

Thursday, January 26, 2017

Stop everything, I need a continuance!

Senators Bobby Zirkin and Wayne Norman have introduced a bill before the Maryland General Assembly making it easier to obtain a continuance in civil court cases.


The current practice gives a judge all the discretion to grant, or not grant a requested continuance. Things happen-- witnesses get sick, settlement discussions break-out as parties assess the true cost of proceeding with a case or hearing, and your lawyer may even get sick or have a family emergency.

I have stood before a judge to request a continuance based on a family emergency, with the consent of the other lawyer, only to be told that "the case can proceed with someone else from your office." This was wrong for several reasons, and could have worked a great hardship on our client had I not chosen to ignore the needs of my family. This bill seems to address such a situation.

But even where it might benefit lawyers, I question the wisdom of chipping away at a judge's discretion to run his or her courtroom. We lawyers are in service of the court, as officers of the court, to promote the smooth administration of justice. Ultimately, the judge is our boss on procedural issues in addition to being the final arbiter of the law in our cases.

As a hedge against unwarranted and last minute agreement to postpone a civil proceeding the bill does grant to the court discretion to assess costs. That means if you pull a case on the day of a jury trial, and the court has already pulled a few dozen folks from their jobs to create your jury pool, you and your client may become responsible for paying members of that pool.

But as I write this, I find my objection to this bill is the potential disruption to the court of last minute private agreements to pull hearings and trials. A court schedules events far in advance to permit parties to prepare, and to subpoena witnesses to testify. Those witnesses take time off work well in advance of the court event. Last minute continuances by private agreement, and without a judge weighing the relative inconvenience imposed on the court and others, will cause significant disruption. For example, a court room may well sit empty and unused because of the last minute hole in the schedule-- there is no time to bring in a replacement case at the last minute.

To save the proposal, I suggest that it set a deadline at least thirty-days prior to a court event for such agreements to postpone. Requests inside thirty-days should remain within the sole discretion of the court. This is consistent with existing practice in some jurisdictions. In Baltimore City, for example, requests made inside thirty-days cannot be made by written motion-- you must show up in person to make the request and often argue with the judge and opposing counsel.

The proposal must also consider court designated "disposition" dates, which determine the latest by which a case must be concluded. Private agreements cannot operate to push case disposition too far into the future or there will be a backlog of unresolved cases.

But a good start. Let's see if Sen. Zirkin and Sen. Norman can fine tune the proposal so that it operates effectively.

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