At the conclusion of a deposition recently, a lawyer (whom we’ll call “Lawyer A”) instructed the deponent that he, that is, the deponent, had the right to review the deposition transcript once the transcript was completed to identify and correct any errors in the transcript.

Lawyer A suggested that the deponent invoke his right to “read and sign,” as is commonly said. The deponent was uncertain as to what that meant.

Said Lawyer A: “That means that you can and should read the deposition transcript, keeping in mind that sometimes there are mistakes in the transcription. Also, if you misspoke (say, if you meant to say ’30 miles’ but you inadvertently said ’30 inches’), you would have the opportunity to clear that up, marking it down on the errata sheet.”

Said the adversary lawyer (let’s call this one “Lawyer Z”) (who took the deposition) (snarling with contempt (or so it seemed to Lawyer A)) : “That’s the 1,832nd thing that you and I disagree about in this case…Deponents are ONLY allowed to correct transcription errors, not properly transcribed testimony…Testimony under oath correctly transcribed….That, they cannot change…”

Who’s right?

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Update post (September 21, 2018): Notch another successful prediction for Minnesota Litigator as Prof. Kristin Naca has lost her lawsuit against Macalester College on Macalester’s motion for summary judgment, discussed (and predicted) below. We also covered the case here and here.

The opinion by U.S. District Court Judge Patrick J. Schiltz (D. Minn.) granting Macalester’s motion includes some stinging criticism of Plaintiff’s counsel, as well, which comes as no surprise given the history of the case and the lawyer.

Before turning to the facts underlying the parties’ dispute, the Court pauses to note that it has been unusually challenging to determine whether Naca’s version of events is supported by evidence in the record because of two unfortunate tendencies of her counsel: First, he frequently asserts facts in his briefs with no record citation or with a citation to something that does not support the assertion (and may, in fact, be completely irrelevant to the assertion). Second, he often cites to the record in a manner that does not match the manner in which he organized his evidentiary submissions, making it difficult (and occasionally impossible) to locate the document or part of a document to which he is ostensibly referring.

In some small but persistent number of cases, it seems as if lawyers think they can bamboozle a court simply by making assertions and adding citations that have no relevance to the assertions. Courts and adversaries are not bamboozled, of course, but they are greatly burdened by the task of ferreting out the fallacies. There appears to be no remedy for genuine costs that this kind of lawyering imposes except for what the Judge did in this case, which is to impose a reputational penalty.

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Scribe

Old School Large Format Printer

Ambassador Press, Inc. (“Ambassador”) is a Minnesota-based printing company that went to Durst Image Technology U.S., LLC (“Durst”) to buy a large format printer.

As Ambassador discussed the potential purchase with Durst, Ambassador was very concerned about the potential risk of “print head” failures (and the delay and added expense that they would cause, particularly when the printer aged out of its two-year warranty). Ambassador repeatedly sought reassurances on this point when it discussed the potential printer purchase with Durst.

In response to Ambassador’s concerns, Durst boasted relatively low printer head failure rates and suggested that somewhat higher failure rates, when they occurred, were due to misuse or poor maintenance practices by the purchasers. But Durst related that, “For printers with more than one year in service, one unit had no print head replacements, two units had one replacement, and three units had two replacements.”)

Ambassador, relying on these representations, bought the Durst printer. “Ambassador alleges that the printer has thus far required 54 replacement print heads, only 11 of which were covered by warranty. Ambassador claims to have paid over $260,000 for the 43 heads that failed after the warranty expired.”

On these facts, do you think that Ambassador has a viable fraud claim against Durst?

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Update (September 17, 2018 (later that same day)): As if timed to go with our post below, St. Olaf College has been sued today by a student accused of improper sexual conduct (rape)

Update (September 17, 2018): For several years now, we have recognized the incredibly difficult position that colleges and universities find themselves in with the #MeToo era.

Consider the gale force winds butteting these institutions during their high wire acts, balancing between truth, falsity, credibility, and provability, the interests, feelings, and futures of accusers and accused, victims and perpetrators, guilty and innocent, not to speak of the institutions’ many and varied communities and stakeholders.

No net.

The case described below involves Carleton College, my alma mater, and I will readily cop to bias. I have always held the college in high regard and I still do. This one’s close to home and, therefore, it should come as no surprise that I take the college’s side as to the motion for punitive damages against the school, recently brought against the school. But still.

Punitive damages are extremely difficult to get under Minnesota law. (We discuss this here and here.)

Honestly, to suggest that the alleged acts and omissions of Carleton rise to the level of warranting punitive damages seems to me to be outrageous.

Here is Carleton’s response to plaintiff’s motion of punitive damages. In reading both memoranda and, in particular, pages 4-5 in the plaintiff’s memo listing the plaintiff’s “indictable offenses” (that is, the factual bases alleged to warrant punitive damages), the almost impossible demands put on colleges in the cross-fire cries out.

This is not intended to trivialize the important issues raised nor the vital duties and responsibilities that all higher educational institutions owe to their students and the broader community. They must do all they reasonably can to provide a safe environment to all. But the plaintiff’s claims against Carleton don’t meet the criteria to establish a “prima facie” case of “clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.”

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Photo by Jonathan Rotondo-McCord

Update (September 14, 2018): The posts below recount the unfortunate trajectory for Minnesota lawyer, Todd A. Crabtree, and this week, the sentence was meted out for the perceived wrong-doings.

One, in particular, caught our eye: Mr. Crabtree is found to have improperly notarized his own document.

Query: in a transaction between A and B in which A is a notary, why can’t A and B both sign the document and A swears and attests as a notary that the signatories are who they say they are?

Why can’t notaries notarize their own signatures on documents?

Notaries typically perform a few different steps when notarizing a document. They verify the signer’s identity, watch as the signer signs the document, and lastly the notary places his or her official seal on the document (note: some states do not require seals). The final seal placed on the document verifies that the notary checked the signer’s identify and watched as he or she signed the document.

Isn’t the notary in a position to know if the notary himself signed the document?

The rationale for prohibiting notaries from notarizing their own documents is that requiring a third party to notarize supposedly “add[s] another layer of security to the document.” The requirement bakes a third-party witness into the transaction. This, of course, is an extremely thin layer of security but an additional layer nonetheless. (Co-conspirators are a dime a dozen and notaries do not vet the transactions they notarize for signs of fraud, duress, or other wrong-doing, they just verify the identities of the signers).

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In Salon of Rue des Moulins, (La Fleur blanche), by Henri de Toulouse-Lautrec, 1894

If a person allegedly misappropriates copyrighted material, the copyright holder may sue the misappropriator for copyright infringement.

If the material is pornography, is the accused infringer entitled to additional protections because pornography consumption is widely viewed as private and embarrassing?

Apparently, the answer is, “Yes.

According to his lawyers, Mr. Greg Lansky, an owner of Strike 3 Holdings, LLC is a “three-time [pornographer/] director of the year,” and, according to his lawyers, Strike 3’s motion pictures “are among the most pirated in the world.”

(Also, according to Strike 3’s complaint, Mr. Lansky “has been dubbed the adult film industry’s ‘answer to Steven Spielberg.'” (Who did the dubbing? His lawyers? His proud mother? And what question did Mr. Spielberg ask to which the porn industry’s answer was supposedly, “Mr. Greg Lansky” (at least according to the anonymous dubber)?)

The issue of the legality of Strike 3’s subpoenas of internet service providers to identify accused infringers has been addressed repeatedly in the U.S. district court for the district of Minnesota and the results have not been consistent. The linked decision is Sr. U.S. District Court Judge Donovan W. Frank (D. Minn.) weighing in.

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As connoisseurs of 1970’s British ridiculousness know very well (indeed, some by memory): THINGS END BADLY WHEN YOU SELL CHEESE THAT YOU DO NOT HAVE.

Unfortunately, Minerva Dairy seems to have missed that lesson.

North Central agreed four times to buy cheese from Minerva Dairy. North Central agreed to buy the cheese (at a set price, quantity, and delivery date). Minerva agreed to sell the cheese (at the same price, quantity, and delivery date). Four times.

Minerva managed to make only one cheese shipment. Three out of the four times, Minerva was apparently cheeseless. North Central refused to pay Minerva for the one shipment, however, because of Minerva’s failures on the other three orders. Minerva’s cheese lapse allegedly caused North Central damages as it hurried and allegedly paid a premium to buy cheese elsewhere to cover for the cheese it had been expecting from Minerva.

Minerva sued North Central in Ohio for North Central’s failure to to pay for the one consummated cheese delivery and Minerva won that round.

North Central, in turn, sued Minerva in Minnesota for Minerva’s failure to deliver the cheese on the other three deliveries.

In defending against North Central’s claim in Minnesota, Minerva argued that there had never been any contracts between North Central and Minerva for the sale of cheese.

Who comes up with arguments like this (and why)? (Some people just like to argue and get paid money to, apparently.)

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The linked decision this week of the Minnesota Court of Appeals is of interest in at least two ways. First, we have posted at great length about the tendency of Minnesota courts (state and federal) to give attorneys’ fee petitions “haircuts” but we were happy to see the linked decision in which the district court paid the full sum claimed and the Minnesota Court of Appeals affirmed the full fee petition.

And we’re talking $217,209.11 in lawyers’ fees, not chicken feed. Minnesota trial lawyers would be smart to review the decision to see how the law firm, Morrison & Sund, handled its billing so that its fee claim withstood the attacks by the other side.

But the case is also a fine example of an occupational benefit of trial lawyers (as opposed to an occupational hazards, of which there are also many): humility. At least most trial lawyers should, over time, deeply appreciate the quality of humility.

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Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update #6 (September 5, 2018): Long-time readers of Minnesota Litigator will savor the lingering smoky aroma memory of this multi-year pork roast of Plaintiff Unitherm in its claims against the home-town hog honey, Hormel.

It seems fair to say that the litigation has been a complete disaster for Unitherm. As we know from other recent posts about another unrelated legal disaster, really disastrous cases sometime have long (and, in both cases discussed here, presumably twisted (or curly?)) tails. 

And now here comes Hormel, hoping for to slather on a topping of attorneys’ fees atop its fat open-face victory sandwich. (Unitherm, presumably, will point out that both sides appealed and both sides lost their appeals.) Will this blood-bath ever end?

Update #5 (April 18, 2018): Both sides appealed their losses on summary judgment. Both sides lost their appeals. Have these bacon battlers had enough or is it time to head to the U.S. Supreme Court in this porcine battle royale?

Update #4 (July 26, 2016) (under the headline: The Bacon Battle Royale Rages On…(But for How Much Longer?): Unitherm has survived cross-motions for summary judgment but just by a hair (of its chinny chin chin?). U.S. District Court Judge Joan N. Ericksen (D. Minn.) has almost thrown out the whole case, leaving only the issue of the ownership of “the hybrid cooking process” as between Hormel and Unitherm. On the other hoof, the value of ownership of that process might be substantial.

Update #3 (March 16, 2016): It is impossible to assess arguments when one only has documents redacted to conceal information pertinent to the dispute. On the other hand, from where I sit, the bacon battle against home-town honey ham Hormel (based in Austin, Minnesota), discussed in several earlier posts below, looks to be going poorly for Plaintiff Unitherm.

Perhaps the out-of-town under-pig will complain of a home-trough bias. But my pessimism for Unitherm’s case comes from objective factors, such as its lack of success in the case to date and a very strong brief by Hormel in support of its motion for summary judgment. (Unitherm’s own brief in support of its own cross-motion for summary judgment is more heavily redacted and so more difficult to assess.)

From the cheap seats, at least, my money’s on Hormel. Unitherm seems to rely in some large degree on (1) a supposed obligation on Hormel’s part to keep public information secret, and (2) the idea that Hormel should be liable for keeping its own secrets from Unitherm at a time when it had agreed not to divulge Unitherm’s shared secrets to any third party. (Agreeing to keep shared information secret is not the same as agreeing not to have any secrets from one’s counter-party.) These alleged acts, if true, might trigger liability…when pigs fly.220px-Sus_scrofa_avionica

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We recently discussed the complex relationship between art and money but, as complicated as that is, it is nothing compared with the relationship between love and money.

As many of us know from personal or professional experience, intra-family money battles give off volatile, highly combustible, and, sometimes, even seemingly intoxicating fumes, that addle, torture, and obsess normally (more or less) rational minds.

We recently stumbled across the professional malpractice lawsuit brought by Mr. Allen Schreier against a law firm and an accounting firm over their roles in the administration of Mr. Schreier’s parents’ trusts. The lawsuit was recently removed from state court (Nobles County) and it is now pending in U.S. District Court for the District of Minnesota (Schiltz, J., presiding). This complaint might be useful for Minnesota Litigator readers to share with their colleagues who do trust and estate work as a cautionary tale.

The 26-page complaint seems primarily focused on a few contentions: (1) Mr. Schreier believes that his brother got a sweetheart deal on farmland rental from the family trust, to Mr. A. Shreier’s disadvantage (as a beneficiary of the family trusts) (See Compl. Paras. 46-50); (2) the professionals (a law firm and an accounting firm) allegedly screwed up on a tax issue (a “Q deduction”) to the detriment of the family trusts (See, e.g. Compl. Para. 11, 74-79); and (3) the professionals (a law firm and an accounting firm) allegedly shut out Mr. Shreier from communications although, since he was a co-trustee, they had an obligation to communicate with him  (See, e.g. Compl. Para. 96-98). There is certainly more to the complaint but these points stand out (and highlight the challenges of trust administration with warring factions).

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