Update (May 1, 2015): Minnesota Litigator missed a March 2015 development in the e-discovery quagmire covered in earlier Minnesota Litigator posts (below).

E-discovery vendor/Plaintiff Kroll Ontrack failed to win its case on summary judgment, which is based on $700,000 worth of e-discovery work for which Kroll was not paid. (U.S. District Court Judge Donovan W. Frank’s opinion denying Kroll’s motion for summary judgment is here.) The case is apparently headed for trial but not starting on May 11, as the Court ordered.  A May 11 start for trial would have interfered with Defendant Devon IT’s lead counsel’s scheduled vacation. Apparently, trial is not stressful enough for Devon IT’s lead counsel; it looks like he might be going to Disney World for a week instead. He is far braver than I. (And I also think it is noteworthy that the court system, while it can be demanding on lawyers, can and does also cut them some slack from time to time.)

Photograph by Maura Teague

Photograph by Maura Teague

Update (June 18, 2014) (under headline: Lawyers: What is Worse Than Not Having Enough Work to Do?): Having a huge amount of work to do in a case in which your law firm’s costs are in the millions of dollars and your client refuses to pay you because you entered into a terrible fixed fee arrangement with them.

And here’s something else that’s worse: being assigned to fabricate problems with a vendor’s services because your law firm does not have the money to pay the vendor.



Distinct Sauces for Goose and Gander, Photo by Dan T., Creative Commons License

Update (April 30, 2015): Plaintiffs in federal civil litigation are not allowed to make up facts in their complaints. They are subject to “Rule 11,” a rule that exposes plaintiffs to serious consequences if they make stuff up.

So, is it fair that a plaintiff must meet an admittedly low standard (no bald-faced lying or reckless baseless allegations) but defendants, in answering complaints, can make stuff up? Specifically, can defendants invoke “affirmative defenses” to complaints for which they have no factual or legal basis whatsoever without fear of being sanctioned?

The answer is “Yes.” The proper remedy for “kitchen sink” affirmative defenses is not Rule 11. It is a “motion to strike” under Rule 12, as set out in a recent opinion by U.S. District Court Judge Susan R. Nelson (D. Minn.). This asymmetry makes sense. A plaintiff who makes stuff up to bring a lawsuit creates a costly and disruptive problem for our justice system out of nothing. A defendant, on the other hand, who makes stuff up in his affirmative defenses might be under a time constraint and at an informational disadvantage. Also, a defendant’s meritless affirmative defenses do not generally impose any material hardship on the court system or on the adversaries. So we do not need to raise the stakes on defendants or defense counsel to deter baseless affirmative defenses.

Update (November 9, 2011):  Recognizing that enhanced “Iqbal/Twombly” pleading rules (discussed below) do not apply to affirmative defenses, U.S. District Court Judge Donovan W. Frank (D. Minn.) still struck affirmative defenses last week as falling short of Rule 8 in response to a motion to strike by a plaintiff in a Fair Credit Reporting Act case (“FCRA“).  In short, defense counsel should take heed that a “kitchen sink answer” with an exhaustive compendium of affirmative defenses may result in a successful motion to strike.   (more…)

haircut-33187_640To answer the question in the headline, you’d probably want to know (1) what is the degree of certainty of that return, and (2) what is the period of time between the initial investment and the return?

I won’t do the number-crunching for you except to say that we’re talking about a 25% return, there, which looks pretty good if the turn-around is under six months. If you had an agreement with someone that they would give you $50,000, however, and they failed to, and you had an agreement that the debtor would pay your “reasonable attorneys’ fees” if you were forced to go to court to collect the $50,000, be forewarned: It is possible a court might rule that: “Expending nearly $41,000 to defend a $52,627 fee award is a disproportionate reaction to the dispute….” And you might end up being awarded a small fraction of the legal fees that you invested…(In the linked opinion, the claim for $41,000 in fees was knocked down to $5,000.)

Every once in a while, a court will award a lawyer everything that she asks for. But it seems far more common, at least in my obviously anecdotal experience, that lawyers (and their clients) need to expect a proverbial hair-cut when they seek to recover attorneys’ fees, whether recoverable under a statute or under the terms of a contract. (In the linked opinion, you’ll note that the “win” for which the victorious lawyers sought $41,000 in fees was actually a split decision rather than a complete win, by the way, which was part of the justification for the drastic reduction in awarded fees.)

Update (April 29, 2015): Another M.D., another Minnesota defamation claim, and another case that appears to have prolonged and aggravated the plaintiff’s reputational wound rather than healed it. In the linked decision, the state of Minnesota won reversal of the trial court’s denial of its motion for summary judgment. The defamation claim of plaintiff, Dr. Michael Harlow, has gone down in flames (unless he takes it to the Minnesota Supreme Court and wins another reversal, though the Supreme Court review did not work out very well for Dr. McKee).

Update (March 12, 2013):  Undeterred by the recent failure of Dr. McKee’s defamation claim, Dr. Michael Harlow, represented by Minnesota litigator, Gregg Corwin, is having a go at a defamation claim of his own (MPR coverage is here).

Aside from the fact that the cases both have M.D. plaintiffs, the two cases are very dissimilar.  Still, given the huge threats and challenges of defamation cases, is this really a battle you want to wage?  Maybe so.  After the break, a reminder that Minnesotans do recognize that reputations, while hard to place a definitive dollar value on, nevertheless do have value and, possibly, high value.


Laurie Vasichek

Laurie Vasichek

Laurie Vasichek has been practicing civil litigation in Minnesota for thirty years and, for the past 25 years, has been with the United States Equal Employment Opportunity Commission or “EEOC.” So this means Laurie has deep expertise and experience in a particular area of law but, if it is not your practice area, you might not know of her. This makes Laurie the perfect Minnesota Litigator profile subject.

ML: I want to start the interview with the questions that everyone wants to know: what is your favorite color?

Laurie Vasichek: Blue.

ML: What is your favorite movie?

Laurie Vasichek: The Fugitive.

ML: What is your first pet name?

Laurie Vasichek: I’ve never had a pet.

ML: What’s your social security number?

Laurie Vasichek: [Laughs.] Seriously, I have had to deal with some identity theft recently.

ML: Funny, I just had my credit card number compromised again today, as it happens. So I guess it’s on my mind. But, I don’t know if maybe you wanted to talk about identity theft? It’s not part of your practice or mine. Do you have any thoughts on it on a legal perspective?

Laurie Vasichek: About identity theft? Well I do have I guess a perspective of it as having been a victim. You know how violated you feel when someone starts taking information relating to you and exploiting it? It does somewhat correspond to the victims of discrimination, except on a much more minor level.

When you talk to people who’ve been discriminated against, what you often find is that they have these horrible, horrible feelings of vulnerability. Like their support in their world was just torn away. There’s my parallel to my practice.

ML: Tell us about your practice. (more…)


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? What if the best friend is actually “calling the shots” or directing the lawyer to do things (based on his understanding of the interests and objectives of his close friend, “the client”)? 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 Court 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…


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!).

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?


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?


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.