Francisco Goya: Saturn Devouring His Son

We recently heard a rumor that the preeminent law firm of Dorsey & Whitney dropped its long-held contract with Westlaw, the computerized legal research giant. If true, we think this is a positive development for the market for computerized legal research generally.

(Being a blogger and being a Dorsey alum (rather than a journalist), I felt odd contacting the firm for comment. Query whether this (running a “story” without confirmation) creates a “blogger ethics” problem? There are such things and we hope to adhere to them. We do not think such a call was required by them.)

We welcome the news. Westlaw has effectively held a near monopoly in computerized legal research in the United States for decades with Lexis-Nexis (and, really, no one else) in distant second place. As monopolies go, Westlaw has been fairly benign (compare Comcast). That is, in our view, Westlaw provides a great service; it is just the price that is exploitative. (Comcast (and other telcom providers with technological or geographically doled out monopolies) provide deeply flawed services and products at inflated prices.)

As almost every Minnesota lawyer knows Westlaw (West Publishing) has deep Minnesota roots although the business was sold to Thomson Reuters some years ago. Maybe some of us still feel a home-town allegiance (as, certainly, many of us know lawyers and others who work there).

On the other hand, Westlaw’s monopoly and its high price have been oppressive for law firms, large and small. We would think that lawyers, in particular, would recognize that signs of the shrinking power of a market giant are a positive development for the market’s consumers (that is, those that the monopoly has been devouring (or more, accurately parasitizing) for many years).

We were previously counsel of record in a case in which we promoted our expertise. We touted a summary judgment win at the trial court for a defendant against a claim for defamation. (We are no longer involved in the case in any capacity.)

But we had enough humility and experience in civil litigation to qualify the announcement of our victory (“for now, at least,” we said).

As hinted, the case went up on appeal, and, without the involvement of LEVENTHAL pllc, our defamation defendant former client won again at the Minnesota Court of Appeals!

But recently the Minnesota Supreme Court granted the plaintiff’s petition for further review, which could be ominous.

The Minnesota Supreme Court will tackle an interesting legal question: who is a “public figure” for purposes of First Amendment free speech legal analysis? (It is harder for “public figure plaintiffs” to win defamation claims. They must show “malice” (knowing falsity or reckless disregard for the truth). In common law defamation, one can be liable for defamation for saying something false and damaging even if one had a sincere good faith belief in the truth of the statement after reasonable investigation.

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Triple Silver Disaster, Andy Warhol (at the Wadsworth Atheneum, Hartford, CT)

Update (March 13, 2019): In the thread of posts, below, we have made our views of the case of Shank v. Carleton College clear. Some might even say we’ve been “shrill” or that we’re inappropriately “taking sides.” (We cop to “taking sides” but reject that it is inappropriate or unwarranted.)

Linked here is Ms. Shank’s memorandum of law in opposition to Carleton’s motion for summary judgment.

In our view, this lawsuit is an injustice and a disaster. The suggestion that Carleton College intentionally inflicted emotional distress on Ms. Shank or that its actions (or omissions) could result in punitive damages is preposterous and irresponsible over-reaching. (As pointed out in the title of this post, Ms. Shank sought a one-on-one meeting with an alleged rapist. A Carleton employee allegedly first introduced the idea, according to Ms. Shank. Ms. Shank seeks to impose punitive damages on the college for acquiescing to what, no one contests, was her own request.)

Maybe there is a claim that the college’s acts or omissions in dealing with Ms. Shank fell short or triggered liability for negligence or federal law governing educational institutions (though we think not). (Few will deny that colleges are aware of under-age drinking, that they do not go to great lengths to stop it, and that drinking is a huge causal factor in many sexual assaults. On the other hand, can we not agree that college students bear some responsibility (almost all of the responsibility) for their own under-age drinking? Or that the correlation between under-age drinking and sexual assault is quite far from 1:1?)

To demonize the school for “deliberate indifference” or “intentional infliction of emotional distress” under the undisputed facts of this litigation, however, is, in our view, beyond the pale.

Update (February 18, 2019) (under the headline: Carleton College is Against the Ropes But Way too Soon to Call the Fight): We will be interested in the response to Carleton College’s motion for summary judgment in the case brought against the college by a former Carleton student, Ms. Elizabeth Shank. In the posts below, we discuss Ms. Shank’s claims that arise from two different alleged sexual assaults she allegedly experienced at Carleton at the hands of two different fellow students (one during her very first week at the school, the other a year-and-a-half later).

As we point out in the previous post, below, colleges are placed in an unwinnable situation where they have to balance the interests of accusers, the accused, fellow students, parents, faculty, alumni, the public (including law enforcement) (and undoubtedly additional stakeholders clever readers can list). They want, of course, to placate every stakeholder. This might be inherently impossible in many cases, most cases, or, maybe even all cases.

Most importantly, colleges won’t know exactly what happened (on 9/12/11 and the Spring of 2013 in the case of Ms. Shank). The only certainties are (1)  they will never know; and (2) what happened will be sharply contested.

We have taken the position consistently in this case that Ms. Shank’s claim against Carleton College for “intentional emotional distress” is preposterous and that her claim for punitive damages against the college is as well. Nevertheless, the U.S. District Court (D. Minn.), to date, has refused to throw out either of these claims.

Will Carleton face the triple silver disaster: 1) the threat of a trial, on (2) a claim of intentional infliction of emotional distress, and (3) the threat of punitive damages? If so, we hope that Carleton will take it to and through trial and then, if unsuccessful, will appeal. There are limits as to what a college can do. In our view, the implications of the claims in this case go far beyond that.

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Many of us spend a lot of time decrying the high cost of our civil justice system, its errors, its biases, and its unfairness. Many of us acknowledge that our legal system is badly flawed, most notably due to the time and expense involved in most civil litigation.

One of the greatest values of knowledgeable, experienced, and ethical civil litigators can be their superior ability to handle cases efficiently.

It is deeply ironic that, in many cases, this means they are less well compensated since compensation in many civil cases is based on the hourly billing model. Nevertheless, savvy consumers of legal services wisely recognize that a knowledgeable and experienced civil litigator who, say, bills out at a relatively high hourly rate (or takes a higher contingent fee than other lawyers) might be the cheapest lawyer in town.

These thoughts came to mind when we recently noted the docket in Steiner v. City of Minneapolis. The allegations in Steiner’s lawsuit are remarkable. So is the apparent streamlined efficiency of the lawsuit.

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nuclear_fireball1 bomb explosionUpdate (March 7, 2019): The Minnesota Supreme Court heard argument in the Kedrowski case, described below. The question: did the trial court err in throwing the case out after a jury verdict, based on the trial judge’s conclusion that the plaintiff’s causation expert’s opinion “lacked foundational reliability.”

Among other things, the Minnesota Supreme Court is hung up on the standard of review. Is it “abuse of discretion,” which would apply to a decision on the admissibility of evidence, a deferential standard of review? Or, since the decision was in the context of a motion for judgment as a matter of law, is the decision subjected to a stricter standard of review?

In one sense, we do not think this is a difficult case.

Trial court judges may not weigh between two competent experts’ analytically sound and methodologically sound opinions.

On the other hand, if the judge finds one side’s opinion is analytically or methodologically unsound, the court should exclude that opinion. As for whether that decision is before or after a jury verdict does not matter. Either way, a litigant cannot prevail based on  analytically or methodologically unsound expert testimony.

That much of the analysis is easy. Or is it?

In this case, the court must grapple with and understand technical expert testimony. This is not a case of “junk science,” which we know has no place in a court of law. The justices (and the trial court judge, and the intermediate court of appeals) are in a far more difficult spot when evaluating technical evidence by a competent expert in a recognized scientific field (as is the case in Kedrowski). (Did Plaintiff’s expert properly perform the “flow bench test” and did he properly analyze the data from it? Assuming his analysis of the flow bench test results was flawed, aside from the flow bench test, did Plaintiff’s expert have other sufficient foundational bases for his opinion?)

As for the timing of the trial court judge’s decision, whether during trial or after a jury verdict, that may be irrelevant. Either way, the questions are (1) what is the appropriate standard of review, and (2) did the trial court judge get it wrong?

But is the timing irrelevant?

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First U.S. Stamps 1847 Issue

We came across the caption Dorsey & Whitney LLP v. U.S. Postal Service recently and were intrigued.

We have recently been troubled by rising stamp prices and inexplicably delayed mail; perhaps, we wondered, Dorsey decided to do something about it?

Not quite. Dorsey’s Freedom of Information Act request of the U.S. Postal Service was rejected.

Is the information sought, ““information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publically disclosed”? (5 U.S.C. § 410(c)(2)).

Who decides what “good business practice” is?

Dorsey, on behalf of some client who desires to go nameless, presumably, seeks information relating to “Negotiated Service Agreements (“NSAs”) between the Postal Service and three specific commercial partners.” The Postal Service responded with a flat-out “NO.” As if this were a matter of national security, the Postal Service even refuses to say whether any such NSAs exist. (This, apparently, is known as a “Glomar response.” The origin of the term is worth noting: see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes’ submarine retrieval ship, the Glomar Explorer).

The Postal Service sets out its basis for claiming that, under good business practice, the existence (let alone the substance) would not be publicly disclosed here (at page 8-9). We’ll follow the case to see whether Dorsey can persuade Judge Wilhemina M. Wright (D. Minn.) that the firm has a right to see the Postal Service’s particular NSAs.

Update (February 28, 2018): We are told that Stratasys’ motion for spoliation sanctions was denied from the bench on Monday and the case settled on Wednesday (i.e., yesterday, 2/27/19).

Congratulations to the parties for stanching the arterial hemorrhage that is civil litigation. Civil litigation makes a lot of sense when a lot of money is in play. Even more when non-monetary but vital interests are at stake (the right to see one’s children, for example). In far too many cases, however, it makes very little sense.

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Update (February 27, 2019): Fitting with an “emergency” motion, U.S. Mag. Judge David Schultz lost no time in ruling on the emergency motion for sanctions, discussed below.

Strictly speaking, he denied the motion but, really, he found that “sanctions are appropriate in this instance” but he denied the requested relief, granting alternative and less severe relief. (Why? Why not grant the motion? Maybe Judge Schultz did not want to tarnish Homestar or its “current counsel” with sanctions when (reading between the lines), previous counsel may have borne the lion’s share of responsibility.

Original post (February 11, 2019) (under headline, “What is an emergency?”): An emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action,” otherwise defined as “an urgent need for assistance or relief.”

What is not an emergency? 99.999% of what U.S. civil litigators do for a living.

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It is  gratifying when a person appears to take the position that he can defy legal obligations and our court system puts him in his place.

Mr. Nasser Kazeminy, a highly successful business person, seems to have found himself in this situation in connection with his son’s divorce proceedings. Mr. Nasser Kazeminy was required to produce financial records in connection with the proceedings (his son, Nader, among other things, is an officer in the family company, NJK, and the beneficiary of significant family trust funds). But, in response for demands for financial information, Papa Kazeminy took the position, “I’m not going to give nobody anything.”

Hennepin County District Court Judge Edward T. Wahl concluded otherwise and he found NJK and Mr. Kazeminy in contempt for their failure to obey court orders for the production of documents. Judge Wahl ordered NJK and Kazeminy to pay $89,612.50 of the other side’s legal fees. Mr. Kazeminy appealed to the Minnesota Court of Appeals and, this week, lost there. We will see whether he has the appetite for further appeal and whether the Minnesota Supreme Court will take up the issue. We hope not. This case has already dragged on far too long.

This week’s appellate decision should be of interest to Minnesota litigators in its discussion of contempt, civil contempt, and constructive civil contempt and, also, its discussion of criminal contempt vs. civil contempt. Still further, it touches on whether a non-party can be found to have violated Minn. R. Civ. P. 37, the rule for sanctioning parties (normally) for wrongdoing in civil discovery and answers, “yes.” This might be the most practical pointer of all for Minnesota litigators (because contempt proceedings are quite rare).

 

Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

The pathetic thing about this week’s ruling that Plaintiff Wing does not have to pay Defendant Tricam’s claimed expert witness fees is that the two sides had been negotiating their disagreement as to responsibility for the fees and they were just $500 apart.

Tricam could have accepted $500 less than it demanded from Wing. Instead, Tricam brought a motion for the full $4,500 that Tricam felt Wing owed Tricam and Tricam lost the motion entirely. That is, Tricam took a $4,500 loss and multiplied it by some untold amount.

We suspect that Defendant Tricam is fit to be tied about its litigation with Wing, a competing ladder maker.

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

The fight is whether Tricam’s ladder complies with a particular ANSI standard as it claims to. If it doesn’t (which is not conceded), does application of this sticker to the ladder (see the blown-up sticker below) amount to “deceptive trade practices” or “false advertising”?

Does Wing truly believe that ladder shoppers are tricked into buying Tricam ladders based on this sticker?

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