• August 16, 2012

The “time horizon” of civil litigation is one of the many interesting things about civil litigation that clients or those inexperienced with civil litigation do not always appreciate.

The pace of litigation can be glacial.  (Asbestos litigation, to take the most extreme example, has been pending for decades and is on-going.)  The pace of trial can be blindingly fast and numbingly slow at the same time (depending on whether you are the witness, the judge, the examining lawyer, the defending lawyer etc).

And sometimes a decision is made at one stage of litigation that one might greatly regret at some later stage.

Minnetonka-based Carlson, Inc. had a business deal with IBM that appears to have gone very badly and early on in the litigation, the parties agreed that they would not require “documents or communications” between “a party and its outside counsel” to be listed on privilege logs (a list that one side in litigation produces to its adversary of documents or communications that are thought to be relevant to the litigation but that are thought to be privileged and undiscoverable by the other side).

Then, much later, IBM became aware of Carlson communications with outside lawyers — not trial counsel but other lawyers entirely — and IBM wished to have the stipulated protective order read to say “outside trial counsel” rather than outside lawyers.

Denied.  U.S. Mag. Judge Tony N. Leung held that IBM had previously stipulated and agreed to the terms of the protective order. It could not come back later to “clarify” or “modify” it.

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