Update (January 30, 2019): In the dispute about “susceptor food packaging” or “SFP,” described below, Plaintiff Inline Packaging (“Inline”) appears to have gotten a butt-kicking (pending appeal) (link is to the U.S. District Court’s grant of the summary judgment motion of Defendant Graphic Packaging International “Graphic”).

Now Graphic seeks $304,930.89 in costs, the vast bulk of which—$226,137.53—is for costs related to its e-discovery platform, Integreon Discovery Solutions. (Here is Inline’s opposition to being saddled with these substantial costs.)

As readers can see in the earlier post below, it seems that Inline pushed Graphic hard during discovery and now, victorious, Graphic naturally wants to be reimbursed.

Whether e-discovery costs are included in recoverable (“taxable”) costs is an unsettled business about which we’ve posted before. So, are these costs taxable or not and why does it seem difficult for the U.S. District Court for the District of Minnesota to issue clear guidance or all be on the same page?

It seems to us that this is a decision that has to be tailored case by case.

Often, one side or the other bears more responsibility for the high cost of e-discovery and it may or may not be the “prevailing party.” If a party is BOTH the prevailing party AND the victim of the other side’s hyper-zealous e-discovery, it was seem obvious it should recover its e-discovery costs in their entirety. By the same token, if a prevailing party chased its own tail or self-imposed a particularly onerous e-discovery burden, it would seem obvious that it should not get a penny for its self-inflicted wound.

Finally, interesting practical considerations: (1) large law firms have e-discovery capabilities in-house. Smaller firms cannot. To what extent does disallowing the recoverability of e-discovery costs fall particularly hard on smaller firm clients (i.e., often smaller business or individuals)? (2) should “ability to pay” be a consideration un imposing e-discovery costs as “taxable costs”? Little Guy v. Corporation litigation will very likely include asymmetric e-discovery costs and impositing e-discovery costs in cases like that could be financially devastating to Little Guy (or be a “rounding error” for Corporation, on the other hand).


From the proposed Findings of Fact and Conclusions of Law (“FOFCOL”) of St. Cloud State University (SCSU) after a trial before Chief Judge John R. Tunheim of the U.S. District Court (D. Minn.), we  learn that SCSU appears to be a struggling educational institution.

As a result of the decline in enrollment and accompanying revenues, SCSU has had to endure layoffs, hiring freezes, program cuts, and cutbacks. This has impacted students, faculty, staff, and everyone affiliated with the campus community. For example, SCSU has eliminated 36 academic programs.

(See here at p.2.)

The question for Judge Tunheim appears to be whether SCSU’s unfortunate austerity measures have fallen disproportionately on SCSU’s female athletes and have therefore resulted in violations of “Title IX” (Title IX of the Education Amendments of 1972, codified at 20 U.S.C. § 1681(a)).


So held the Minnesota Supreme Court this week. And we think that most people would agree that “going to a bar” is not synonymous with “getting into a fist-fight.” Bars ≠ fighting arenas.

On the other hand, we all know what a “bar fight” is. In other words, although bars ≠ fighting arenas, fights in bars are common enough that this combination of words is common-place and maybe universally understood (compare: “barbershop fight,” “pet store fight,” or “fitness club fight”?). (So maybe bars ∈ fighting arenas?)

This second idea (which we can call “foreseeability”) also animated this week’s Supreme Court decision in the case of Maxwell Henson v. Uptown Drink.

The case involved drunken patrons who knocked a man, Mr. Maxwell Henson, down to the ground outside the bar. His head hit the curb and he died. There was some irony in the two defenses of the bar which we might paraphrase like this: (1) bar fights are so common that it is just a risk everyone takes that they might be injured or killed when they go to a bar (“implied primary assumption of risk”); and (2) Mr. Henson’s death was so unexpected and so unforeseeable that the bar cannot be held liable for this terrible but freak accident. (Here is an earlier post on “the enigma of foreseeability.”)


Charlie Chaplin in Modern Times

The recent denial of summary judgment sought by United Parcel Service (UPS) in a case brought on behalf of Mr. Jeffrey Pagenkopf is interesting on many levels.

In no particular order, we first note that the Court’s memorandum sets out the means by which UPS selects drivers and trains them. The process is intensive and gives confidence that UPS drivers appear to go through exhaustive training.

Second, all of this training and Mr. Pagenkopf’s claims that he can do the job come at a fascinating moment of technological development with self-driving vehicles buzzing towards us on the near horizon and, simultaneously, the ever-increasing development of human-assistive technologies to enable people with disabilities to overcome overcome the limits of those disabilities with the help of technology.

In short, we are enabling more and more people to be more able to do more jobs while, at the same time, we are designing machines and systems so there will be far fewer jobs for people. (Enter: Andrew Yang for President.)

Third, we note that the issue of whether a deaf UPS driver can drive safely seems to be uncontested. He can. The issue is how a deaf driver might deal with intercoms or other foreseeable interactions that present an obstacle to someone who cannot hear.


Martin Luther King, Jr.

Martin Luther King, Jr., Photo By PBS NewsHour

“We have flown the air like birds and swum the sea like fishes, but have yet to learn the simple act of walking the earth like brothers.”  Martin Luther King, Jr.

Normally, it is large institutions (banks, retailers, manufacturers, etc.) who seek to hold “little people” (customers, individual consumers, small businesses) to contracts.

From time to time, however, the tables are turned as they are in Bixby et al. v. Lifespace Communities, Inc., d/b/a Friendship Village of Bloomington (“Lifespace”), pending in U.S. District Court before Chief Judge John R. Tunheim (D. Minn.).

Plaintiffs Marlene H. Bixby, Martha Rogers, and William and Eleanor Nickles all entered into contracts with Lifespace called “The Friendship Village Residency Agreement Return-of-Capital contract” (in 1998, 2002, and 2012). Lifespace is alleged to have agreed to make available to Plaintiffs specifically identified living units in Friendship Village, for as long as the Plaintiffs lived and subject to the terms of the residency agreement (which the Plaintiffs have all abided by).

The Plaintiffs are still alive but Lifespace wants to destroy their homes to redevelop the property to make more money. (Plaintiffs’ memorandum of law in support of their motion for summary judgment is linked here.)

OMG, how open-and-shut can a case be, right? A deal’s a deal, no?


Photo by Molly: https://goo.gl/SE6gqE

To our knowledge, there is no person more knowledgeable about the health and well-being of the market for legal services in Minnesota than Mr. Brian McMahon, Managing Director of the Minneapolis office of Major, Lindsey & Africa (“MLA”). MLA might be the most preeminent legal recruiting company worldwide. Mr. McMahon circulated a report this week from Hildebrandt Legal Consulting and Citi, adding his own condensed local insights.

So, what’s up, Doc?

According to Hildebrandt Legal Consulting, Big Law is devouring its smaller colleagues. That is, the 50 largest U.S. law firms are hurting if not killing the top 100-200 law firms. This is great news for some high-powered Minneapolis big firm partners and bad news for the regional firms these top lawyers ditch for more money, more national and international reach.

The path to partnership at the large firms is tilting away from “organic” partners (aka, “internal promotions”) toward lateral hires.

Old lawyers are dying, too often without transitioning their client relationships to younger lawyers.

And, finally, some good news: “litigation is making a comeback.” Yay.

[The full Citi Hildebrandt Report is here.]


An ultrahazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others from being injured.

Examples are: transportation and storage of explosives, radioactive materials, or wild animals.

So the answer to the headline’s rhetorical question (consistent with Betteridge’s Law) is, “No, going to the Dollar Tree store is not an ultrahazardous activity.” But hear us out…


This week, the Minnesota Chapter of the Federal Bar Association enjoyed U.S. District Court Chief Judge John R. Tunheim’s yearly update on the state of the United States District Court for the district of Minnesota.

For Minnesota Litigator, the lasting message was about the stress and  the hardship of the partial shutdown of the federal government, which Judge Tunheim emphasized a few times in his presentation. For those of us who are not directly involved, who are not federal employees nor related to any, it was a vivid reminder that this is not “annoying political squabbling” for federal employees and their families. It is a time of genuine anxiety, fear, and concern; it poses a potential imminent threat to their financial well-being (if it is not already causing actual disruption in their lives).

Turning to less pressing and distressing matters, Judge Tunheim presented U.S. District Court statistics of case filings and trials. Here are our takeaways: (1) there was very little change in the number of filings between 2017 and 2018; and (2) while there were over 2,000 civil cases filed in 2018, there were fewer than 20 civil trials. Of course, it is unlikely that any of the 20 civil trials involved any of the 2,000+ cases filed the same year, but we think one can fairly suggest that a civil trial is about a 1% likelihood for any randomly chosen civil lawsuit.


Just teasing. Minnesota Litigator has been known, from time to time, for its typographical lapses, of course.

We’ll go a step further: if your law firm enjoys a superbly low typo rate, we would submit that your clients are paying too much. Though it is true that typos are unfortunate and, particularly to perfectionists, they are deemed to be “signs of sloppiness,” typos are inherent in our work. Having briefs and other legal writings reviewed by many different readers to root out every single typo is generally overkill and needlessly adds expense for legal services. (It is true that sometimes a single typo can have terrible consequences, of course. This, however, is extremely rare. Most typos simply trigger a fleeting feeling of superiority in the reader without any further consequence or confusion.)

Larson King appears to have one lawyer holding himself out as having immigration law expertise, Mr. Umut Ozturk, and the fact that they are looking to hire another lawyer with this expertise suggests his practice is doing well!