Update (August 22, 2019): The other shoe dropped.

U.S. Mag. Judge Hildy Bowbeer (D. Minn.) issued an 81-page Report and Recommendation (“R&R”) on multiple motions for sanctions against Defendant Procura. For those civil litigator readers, when your clients wonder why U.S. civil litigation is so expensive, part of your explanation should be that some lawyers and some litigants behave badly and this imposes tremendous burden and expense on the court system and on the litigants. So it is with Procura’s conduct in a case we’ve been following for some months now.

Go to page 18-29 of Judge Bowbeer’s R&R for directions on how NOT to prepare Fed. R. Civ. P. 30(b)(6) deponents for their depositions (that is, deponents who are produced to offer testimony of institutional knowledge — not their own knowledge but knowledge of a corporate entity (for which they are given subject matter areas for testimony in advance of the deposition)).

Hint: when asked, “What did you do to prepare for this area of inquiry, which we disclosed would be a subject for this deposition,” it would be good if your designated witnesses do not answer, “Nothing.” (“This lack of any attempt to prepare for the deposition by gathering information not
within the immediate memory of the witnesses themselves was a clear abdication of Procura’s responsibility under Fed. R. Civ. P. 30(b)(6)” (at page 44)).

Original post (July 31, 2019) (under the headline “Prairie River Home Care v. Procura: The Other Shoe Will Drop.”): Recent readers of Minnesota Litigator will recognize the case name above, a case we have highlighted for lessons in how NOT to do civil litigation. Specifically, it seems to us that the case has gone very badly for Defendant Procura and the ways it has defended the case against it have not seemed particularly clever (an indefensible defense, one might say).

This week, U.S. Magistrate Judge Hildy Bowbeer issued a Report and Recommendation (“R&R”) on a motion for sanctions against Procura. To our disappointment, however, Judge Bowbeer issued her R&R under seal (that is, denying public access).

But there are some pretty strong signs that the order is unfavorable for Procura. Specifically, it appears that Judge Bowbeer issued the R&R under seal to give the litigants a chance to propose redactions or a confidentiality designation. Adversaries Prairie Home and Salo Solutions wasted no time in notifying the Court that they are perfectly happy with full public disclosure of the R&R…(see here and here). So far, Procura has not weighed in.

We look forward to the unsealing of the R&R and hope that it is completely unsealed.

Court records are presumptively public. We make exceptions for issues of national security, to protect crime victims, to protect children, to protect litigants when publication of the underlying private facts present a high risk of stigma or trauma. But “mere embarrassment or a desire to avoid the potential criticism attendant to litigation will not suffice.” What have we here? Stay tuned…

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