WhisperingApril 27, 2015 Update: Imagine an executive who fires off a revealing confidential letter to her lawyer and, on further inquiry, an adversary learns that the executive hand-wrote the letter and her secretary typed it up and sent it. Think the letter is still privileged? I don’t have any Minnesota case law in hand but I think the answer is “yes” and I think it is not even a close call. But many cases do hold that, “In general, the presence of a third party at a communication between counsel and client is sufficient to deprive the communication of confidentiality.”

I think the point here is that the secretary is not really a “third party.” I expect courts would almost universally hold that the secretary is an agent of the client, that is, the executive. So the secretary’s access to the communication does not constitute a waiver of the attorney-client privilege between the executive and her lawyer.

When is a “third person” a “third party” as opposed to “an agent“?

What if the facts above are the same but we replace “the secretary” with “the executive’s best friend”? And what if the best friend is not simply functioning as a secretary but more as a best friend, simply relaying information? What if the best friend is actually “calling the shots” (based on his understanding of the interests and objectives of his close friend)? I think it is maybe a little bit harder to call the “best friend” the “an agent” of the executive. Still privileged? Some courts have held that the question is whether “the third party is a person to whom disclosure of confidential attorneyclient communications is necessary to advance the representation…” If so, the disclosure will not waive the privilege.  That would seem to make the secretarial role within the privilege, but what about the case of the best friend?

These issues are now being considered in an audacious (some would say outrageous) on-going battle in Hennepin County District Court described in earlier posts (set out after the break). (Some are outraged by one side. Some by the other side.)

For 30+ years, Defendant Jeff Nielsen in the Bohnen v. Dorsey & Whitney, LLP, et al. lawsuit, has had a confidante, Tim Nelson. Nelson was tasked by Nielsen to talk to Nielsen’s lawyers on Nielsen’s behalf. The question pending before the Hennepin County District Court Judge Thomas Sipkins is whether Nielsen can invoke the attorney-client privilege to shield from discovery communications between Nelson and Nielsen’s lawyers. (Here is the plaintiff’s “letter brief.” Here is Mr. Nielsen’s affidavit in which he makes his case to keep the privilege.) To make this fact pattern just a tiny bit more complicated, note that Mr. Nielsen does not have an email account but he runs things through his son’s email account (see Affidavit at Para. 12) or maybe it is just “an account [his] son set up for [Nielsen] in 2010 under [Nielsen’s son’s] name…” (THANKS DAD!) So there’s another conduit to think about, not just Nielsen to lawyers via Nelson…

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49134Update (April 24, 2015):  What more does the fight between Zimmerman | Reed v. Genevieve Zimmerman (Ms. Zimmerman is unrelated to adversary “Bucky” Zimmerman of Zimmerman | Reed) and against Meshbesher & Spence need? Apparently, another Zimmerman on the case. Last month, St. Paul attorney Jacob Zimmerman made an appearance in the case along with “Gus” (“Mind if we call you Zimmerman?”) Nicklow as additional counsel for Ms. G. Zimmerman.

What more does the fiasco need? A motion to amend to add additional information about Ms. Zimmerman’s defamation claim and also a motion to add a punitive damages claim against Zimmerman | Reed? Bien sûr! Got it. (As of March 23, 2015.)

Anything else? Oh, yeah. A stipulation to move this circus into confidential arbitration. FINALLY. Entered into this week. A bit late to claw back the many insults, accusations, and over-the-top nuttiness sprinkled throughout the court file (like sprinkled in here), but now I can say (I think), as I wrote below, “Nothing more to see here. Move along…”

Update (January 27, 2015): Minnesota Litigator often gets tips from lawyers as to interesting cases, decisions, or legal issues, which is great (keep them coming!), but, as valuable, Minnesota Litigator often gets inquiries (please keep them coming too!).
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Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

Updated Post (4/23/2015):  If you have been following ML’s coverage of the Fagen v. Exergy case (see below), then see Exergy’s linked reply memo in support of its motion to amend its counterclaim (otherwise known as adding a new party). “Trial is eight months away from trial at a minimum,” Exergy explains, which I think is an Einsteinian or a quantum concept.

In sum, notwithstanding Fagen’s expressions of outrage and accusations of intentional wrongdoing, Exergy won’t back down

Updated Post (April 1, 2015):  Sometimes there is a kind of attenuated slow-down of time in civil litigation. When there are dangerous errors or wrong-doing in civil litigation, the consequences sometimes can play out over months or years. It is as if you stumble over a trip wire, hear a click, you know you are now in a bad spot, but detonation might be months later… I wonder if someone might be dealing with those unsettling circumstances in the Fagen v. Exergy fight, which I’ve covered in several previous posts.

Defendant Exergy wants to add a new party to this long-running and intensely litigated dispute. Why the new party in this case that has been pending for more than two years?

Exergy has located and produced a series of promissory notes ($12 million worth) executed by the project entity, Big Blue Windfarm, LLC (which is owned by Plaintiff/ Counterdefendant [MET]) in favor of Exergy relating to costs paid by Exergy for the development of the Big Blue Project between 2006 and 2011. See Declaration of James T. Carkulis, filed concurrently herewith (“Carkulis Decl.”). “These notes were misplaced in the course of a large scale office move that resulted in documents being divided across multiple locations.”

(Here is the declaration about the newly located promissory notes. Here are the promissory notes.)

Really? This case has been pending since October, 2012 and Defendant Exergy “found” $12 million in promissory notes related (apparently) to the subject of the litigation in October, 2014?

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Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

A straight-up clusterf***k recently blew up in a pretty weird case pending in U.S. District Court for the District of Minnesota.

In the case, a man, Kearns, bought stained glass windows from a church in Michigan. He had them shipped to his home in Maryland and then subsequently died. The windows were later reported stolen. Law enforcement was called in and the windows found for sale on-line by a Minnesotan. The Minnesota on-line seller claimed he bought the windows for $11,000. Law enforcement did not buy his story and they charged the Minnesota on-line seller with stealing the windows.

Did he steal them or did he buy them? We might never know.

The lawyers for the Kearns estate appears to have blown several deadlines and it is not clear the estate’s claims will survive the lawyers’ apparent procedural mis-steps…

A lawyer (NOT ME OR MY LAW FIRM) explained in a sworn declaration submitted to U.S. District Court Judge Donovan W. Frank (D. Minn.):

My internal office procedure is that when motion documents are received, the date of the motion is to be placed on my calendar and an internal tracking process is then instituted for the drafting of a response. [That procedure was] not followed in that the date of the Motion was inadvertently not placed on my calendar. Accordingly, the internal tracking process was not instituted. The failure to follow those procedures is ultimately mine.

This apparent error by a lawyer with more than twenty years of experience under his belt might cost his client’s case. (Note the use of passive voice: “my…procedure is that when motion documents are received,” “the date of the motion is to be placed..,” “[a] tracking process is then instituted,” “the procedure was not followed,” the “internal tracking process was not instituted…” These are all in the vein of the much condemned: “mistakes were made…” We generally frown on distancing oneself from personal responsibility with this kind of disembodied verbal evasion. But could there be some validity to the point that the problem here could be a law firm’s problem to some material extent, not the lawyer’s? (For example, some firms fail to have firm-wide calendaring system or fail to have adequately networked computer systems.))

We all have calendars to track deadlines. The question is, what can we do, what systems can we put in place to back up the systems we have in place?

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Plaintiffs Henry Watkins and Kevin Cross worked for “I.G. Incorporated, d/b/a Industrial Staffing” and/or they worked for “TFG, LLC d/b/a Industrial Staffing.” (This shell game of employers was one of many hurdles plaintiffs faced in their lawsuit.) Plaintiffs’ job was to clean up a Target Field, a Minneapolis sports facility, after events. Their work-day would start at a “staging area,” where they would have to sit and wait to be transported to Target Field to do their cleaning jobs.

josh_photo_newThe employers apparently did not compensate their workers for the time that the workers had to sit around and wait to be ferried over to their work site from their staging area.

Plaintiffs’ counsel, Josh Williams, took the employers to court, up to and through a successful jury verdict on claims for breach of contract and unjust enrichment.

The battle was hard-fought and Williams was up against polished and talented adversary. Learn more about the trial after the break.

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Minnesota Litigator - federal rule changesNow that we are moving to e-filing of court documents, there are some new needs to make briefs and memos effective. And some new tools are available. Two of them are hyperlinks and bookmarks.

We are all familiar with hyperlinks (like this.) Clicking on a hyperlink will take the reader to a new page. Our rules won’t allow the drafter to hyperlink to material outside the document itself, at least at this point, but will allow you to hyperlink to spots in the same document.   For example, you can link a line in the table of contents to the corresponding part of a brief.

We have all also seen bookmarks. Bookmarks also allow you to jump to another place in your document, but your starting point is a set of links in a separate pane alongside and to the left of your document.   (Bookmarks look like this.) Bookmarks will always be visible and available (as long as the correct settings have been used) and will “travel” with the document as the reader scrolls through it.

So, for example, a simple version of your table of contents outline can appear in the navigation pane so the reader can jump to a desired passage of the brief or memo at will. The links in the navigation pane will appear alongside the document text as the reader progresses through it, so that they are always handy and accessible. (Unless the reader chooses to hide them.)

As noted, hyperlinks and bookmarks can allow the reader to jump from one part of your table of contents to document text. But both tools have many other rhetorical purposes. Bookmarks in particular can help you point the reader to the parts of the brief or memo you think are most important, and let you explain why. For example, you could have bookmarks (after your table of contents links) that say, “The most important case,” or “Why Respondent’s breach argument is wrong,” or “Why the tolling argument is incorrect.”

In this way, bookmarks give another tool to highlight your most important points, and make it easy for judges to find the most important parts of your brief or memo.

The courts’ web site includes instructions on creating bookmarks and seems to endorse the broad use of them. It’s not clear, though, that the courts have fully considered the rhetorical uses of bookmarks. This will undoubtedly be addressed down the road. At present, the rules do not address their use, and there is nothing saying that rhetorical bookmarks can’t be used.

(Justice G. Barry Anderson has discussed the use of bookmarks in a CLE. His thoughts on their rhetorical use follows.)

One thing is clear: bookmarks of all kinds must be used in moderation to be effective. Otherwise, they will overwhelm the reader. So bookmarks for the brief outline should be limited to the most important points, not all subparts of an outline. And, rhetorical bookmarks should similarly be limited to the most important points.

In addition, if opposing counsel is not registered for e-filing, a PDF with the hyperlinks and bookmarks should be sent to that person by email, so that he or she is able to see what the court sees. And the cover letter to the clerk’s office should note that the e-filed copy of the document contains bookmarks and hyperlinks. So everyone knows that the bookmarks and hyperlinks are there.

It’s easy enough to see the structure of a paper document and flip through it to go from one point to another. That is not as easy to do with a digitally-filed one. But hyperlinks and bookmarks can help the decision-maker navigate easily through the document. So we should learn how to use them.

Minnesota Judicial CenterJustice G. Barry Anderson spoke on e-filing of court documents at a CLE a while back.  One topic he mentioned was bookmarks in e-filed PDFs.  Here are some of his thoughts now on the subject.  Shared with his permission:  :

“First, the usual and customary caveats—I’m writing solely for myself, we’re in the early stages of experimenting with what electronic briefing looks like, other members of the Court may have different views and, to the best of my knowledge, there are no rules that speak with any directness on this issue.  That day will come, but it’s not here yet.

 All of that said, I see no problem with reasonable use of bookmarks as part of the lawyer’s box of persuasive tools.    Bookmarking a PDF brief is, in part, an outline of the lawyer’s argument.   And the outline of the lawyer’s argument is set out, in the first instance,  in the table of contents of the brief and is, of course,  in persuasive form there.  ( E.g., “The District Court erroneously decided….”).     I see no reason why a particular weakness in an opponent’s argument couldn’t be bookmarked, just as it might be noted as a subhead in the argument outline itself.

The more complicated the table of contents/outline/bookmark of course, the more an advocate runs the risk of providing so much information to the reader that the original goal of persuasion becomes obscured.   Most briefs, at this point in our transition to ecourt, are not bookmarked and when I create bookmarks, I’m looking to make it easier for me to get to the heart of the argument, not necessarily replicating the advocate’s table of contents in its entirety.    So, for example, I might not bookmark all of the sub arguments, or I might have a separate bookmark that notes that this particular page or point is the heart of the advocate’s rgument (or it might say something like, “I have no idea what the point of this is—ask about it at oral argument”).

 So, I think there is room in looking at this issue to think persuasively about whether, and how, to bookmark a brief.    And, of course, all of the usual advice about advocacy applies with bookmarking as it does with all other parts of advocacy (e.g., state the argument fairly, acknowledge weaknesses, cite authority accurately, etc).

Barry Anderson

Associate Justice

Minnesota Supreme Court

Minnesota Litigator - Stacks_of_moneyMinnesota Litigator covered the protracted and hard-fought battle of Ellen Ewald vs. the Royal Norwegian at some length, which culminated in U.S. District Court Judge Susan R. Nelson’s (D. Minn.) 191-page findings of fact and conclusions of law by Judge Nelson and a win for Plaintiff Ewald.

The Equal Pay Act provides for an award of “a reasonable attorneys’ fee” to a victorious plaintiff. In Plaintiff Ewald’s case, Judge Nelson found $1,773,719.05 in attorney’s fees to have been reasonable (plus $209,973.61 in costs, plus $114,267.31). For lawyers who seek awards of attorneys’ fees, Judge Nelson’s order should be required reading. Note that plaintiff’s counsel marked down her bills repeatedly in light of circumstances, such as the replacement of the lead paralegal on the case (because the previous paralegal left for a job in the public sector). Congratulations to Engelemeier & Umanah!

Here’s a related question: if a statute provides for an award of “a reasonable attorneys’ fee,” should a lawyer be able to recover the cost of computer research as well? As “costs”? Or as a part of “reasonable attorneys’ fees”?

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DataYou might not want a compilation of every ______ between the ages of ____ and _____, of ______ethnic origin, who suffers from _________.

But many people and many businesses want “slices” of potential customer groups like this and they will pay a lot of money for these slices because they will make a lot more money with them. Many businesses (Facebook, Google, to name a couple) traffic in human data like that in the billions of dollars.

But if you collected and sold databases like that, how would you be able to tell whether a competing data merchant is stealing and re-selling your compilations?

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dunce-cap1Another benefit from last week’s meeting between the Hennepin County trial court judges and Hennepin County lawyers was learning about Judge McShane’s linked list.

These are excellent rules for all trial lawyers to review before heading into trial before anyone. Certainly some of the rules are inapplicable before other judges. (Some judges do not apply Judge McShane’s Rule #1, for instance.) Most of Judge McShane’s rules, though, fall under the heading of “don’t be a stupid idiot,” which is sometimes more difficult than it sounds.