Procedure

Mister Softee Bitten By Waiver Under FRCP 50

January 18, 2010

I’ve written before about how dangerous waiver is for lawyers.  It lurks everywhere, like sharp coral just a few inches beneath the water off an inviting tropical beach. In Microsoft’s recent loss to i4i in federal court in Texas affirmed by the Federal Circuit, Mister Softee (stock trader slang for Microsoft), found itself hung up on a reef with razor sharp coral when the Federal Circuit may have refused to reverse a $290 million trial verdict on what the court considered a waiver technicality. As every experienced trial lawyer knows, trials are a virtual waiver landmine – if you don’t proffer the evidence a judge excludes, you’ve waived it on appeal.  If you don’t object to jury instructions, you waive the right to challenge them on appeal.  This list seems almost endless, and there’s nothing a federal court of appeals likes more than to dismiss an argument on the grounds that it was, somehow, waived during trial. This having been said, there are a few potential waivers points that lawyers absolutely MUST keep in mind – to the point where the documents that will avoid the waiver should be prepared before trial, subject only to updating as the trial progresses and the moment of truth (or waiver) is reached.  These waivers arise under FRCP 50, and are: Before the case goes to the jury the defendant MUST move for judgment…

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Hey, It's Not Like President Bush Isn't Doing Anything Important These Days! or, Fresh Evidence That the True Course of Civilization is Upward

September 24, 2008

Here is the text of new Federal Rule of Evidence 502, eliminating waiver resulting from inadvertent disclosures of attorney-client privileged or work-product materials in federal litigation: Federal Rule of Evidence 502 (signed into law September 19, 2008) The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. (a) Disclosure made in a federal proceeding or to a federal office or agency; scope of a waiver. — When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent disclosure. — When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed. R. 25 Civ. P. 26(b)(5)(B). (c) Disclosure made in a state proceeding. —…

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It Gets Harder (possibly much harder) to File a Lawsuit in Massachusetts

July 29, 2008

One of the things that drives people crazy is how easy it is to file a lawsuit, and conversely how difficult it is to persuade a judge to dismiss a lawsuit before the defendant incurs the costs of discovery and summary judgment. It has long been the law in Massachusetts that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96 (1977). This is a very difficult (some would say metaphysical) standard. Under it dismissal has been limited to black and white situations where the plaintiff has failed to allege the basic elements of a cause of action, or where (for example) a statute of limitations defense is apparent on the face of the complaint. No more. Last year the U.S. Supreme Court rejected this standard in the federal court (Bell Atlantic Corp. v. Twombly), holding that a complaint (the document that initiates a lawsuit) must assert a claim to relief that is “plausible on its face.” The complaint must allege facts plausibly suggesting a right to relief. Vague assertions intended to satisfy the “no set of facts” standard will no longer suffice. The Massachusetts state courts often follow the federal courts when it comes to matters of procedure, and in June the…

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Traps for the Unwary – Waiver

July 23, 2008

What do lawyers fear the most? Spiders, snakes, public speaking, death by auto de fe? Well, I’ll be darned if I know, but one thing that scares the bejesus out of all thinking lawyers is waiver. Lawyers start to become vaguely aware of this horror in law school. Once they go out into practice it slowly dawns on them that it’s ultimately undefinable, that it lurks behind every legal shrub and tree, that opposing counsel will throw it in your face when you least expect it and long after you can fix it, and that if they don’t a court may do so on its own initiative. In its most severe forms it can lead to bankruptcy, scandal, and even malpractice (apologies to Jimmy Stewart). Take a simple summary judgment motion in federal court. Unbeknownst to the novice lawyer, this process is fraught with dangers. The defendant files the motion. You file an opposition. The defendant files a reply affidavit introducing new facts. You lose the motion, and on appeal you argue that it was inappropriate for the defendant to introduce new facts in its reply. You cite the “no new facts” rule. After all, you were sandbagged by that reply, and the court shouldn’t have relied upon it. Not so fast, the First Circuit recently held on these facts – did you raise this with the district court and…

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ESI and Admissibility

July 22, 2008

After writing the post immediately below it occurred to me that although there is much talk about the discovery of electronically stored evidence (ESI), the admissibility of ESI is addressed far less often. In fact, in the two day conference I linked to in that post, the topic is not even mentioned. For the interested, there are two important starting places for this topic. The first is the 101 page decision in Lorraine v. Markel American Insurance Company by Magistrate Judge Paul Grimm (one of the “rock star judges” mentioned in the ABA article), and the second is The Next Frontier: Admissibility of Electronic Evidence (Listrom, Harlan, Ferguson and Redis). (Note: this last link is on the ABA website and appears to require an ABA membership user name/password; as yet I am unable to locate a copy anywhere else).

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Quick Hits – Antitrust

July 14, 2008

The Federal Trade Commission has asked for en banc review of the D. C. Circuit’s decision in the FTC’s Rambus proceeding. I expect this case to be appealed to the Supreme Court, and given the Court’s propensity to accept antitrust cases over the last several years and the importance of this case, the case stands a better-than-average chance of being accepted for review by the Court. Of course better-than-average is still difficult, so the FTC shouldn’t get its printing presses warmed up quite yet. * * * The Supreme Court granted review of the Ninth Circuit’s decision in Pacific Bell v. Linkline, and will hear and decide the case next term. The issue in this case, as described in the Pacific Bell’s petition to the Supreme Court, is – Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a “price squeeze” by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete. The Ninth Circuit held that there was an antitrust duty, and Pacific Bell is appealing that ruling. The SCOTUS blog page for this case is here. * * * I strongly recommend that patent and antitrust attorneys…

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The Agony of Inadvertant Disclosure

June 8, 2008

Sometimes being a lawyer is like being an airline pilot – hundreds of hours of tedium, interrupted by moments of sheer panic. In the case of lawyers, the panic can hit from a number of sources: a missed court filing date or statute of limitations, the discovery during trial that your client has failed to produce key documents during discovery, the failure to discover a controlling legal precedent, the realization that a client has lied to you, or “inadvertant disclosure.” To lawyers, the term “inadvertant disclosure” means that during discovery documents protected by attorney-client privilege or work-product immunity have been produced to the other side, by mistake. You (the disclosing attorney) usually learn of this when the opposing lawyer calls you up to gloat (under the guise of politely informing you of the incident, which is required under the ethical rules). It’s enough to ruin any lawyers day: you demand (or beg for) the return of the documents; the opposing lawyer refuses; you file a motion with the court asking for an order that the documents be returned to you (after that embarrassing call to your client); the other side opposes your motion; and finally, the judge writes a decision ruling one way or the other on your request for return, but in either case informing the world of what a sloppy or incompetent lawyer you were to have produced…

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Amazon Caught in Common Settlement Trap

January 16, 2008

If you’re in the middle of a trial, don’t tell the judge that you’ve settled the case unless you absolutely, positively mean it. Amazon fell into this trap in its recent litigation with Basis Technology, a Massachusetts linguistics software company. On the third day of trial over a dispute arising out of a contractual relationship the parties informed the judge that the case had been settled. The judge ended the trial, but the settlement agreement that the parties then attempted to negotiate for signature foundered over the calculation of Amazon’s minority stock ownership in Basis, an important element of the settlement. After the dispute was brought to the attention of the trial judge she examined the negotiations and held that the intention of the parties had been to settle. She ruled that all of the material terms of the settlement had been agreed upon, and that Amazon’s objection to the stock calculation was a “post hoc objection” insufficient to derail the settlement. The trial judge refused to reopen the trial, and entered judgment on the terms sought by Basis. Amazon appealed the judgment entered by the trial court, but the Appeals Court rejected the appeal. In addition to affirming the reasoning of the trial court judge, the Appeals Court emphasized an important principle, long recognized by many courts: when you report a case settled during trial, the court will bend…

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What Did You Say Your Trade Secrets Were?

March 27, 2006

Trade Secrets, Procedure. Warning: if you’re seeking discovery in a trade secret case in the Suffolk Business Litigation Session make sure that you have (a) provided the court with a detailed description of your trade secrets, and (b) filed a protective order that strictly complies with the Uniform Rules of of Impoundment. For a recent decision making these points, written by Judge Allan Van Gestel in the Suffolk Business Litigation Session, click [here]. The decision, Tourtellotte Solutions, Inc. v. Tradestone Software, Inc., was featured on the front page of Massachusetts Lawyers Weekly last October. In a nutshell, the plaintiff asked for expedited discovery (in other words, the right to take discovery on a schedule faster than allowed in the ordinary course by the rules of civil procedure), so that the plaintiff could obtain evidence necessary to bring a preliminary injunction against the defendant. The plaintiff’s basic claim was that the defendant had engaged in “software misappropriation,” a term that Judge Van Gestel stated “sounds very much like trade secret misappropriation.” The judge denied the motion, stating: “a detailed description of what is claimed to be a trade secret must be provided and a protective order of some sort needs to be worked out.” Neither conclusion is surprising in the least. Many decisions in trade secret cases have held that the plaintiff must identify its trade secrets with particularity. The courts…

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Electronic Discovery – The New New Thing

July 21, 2005

Procedure. There are fads in the law, just like everywhere else. Apologies to Michael Lewis, but there can be no doubt that, in the odd and insular world inhabited by litigators, electronic discovery is the new, new thing, and almost everyone is scrambling to catch up. It is what Y2K was from 1997 to January 1, 2000, but unlike Y2K, it’s not going away anytime soon. It easy to tell what’s hot in litigation: just watch publications like the National Law Journal and the American Lawyer and look for frequent articles on the “hot topics.” Google “electronic discovery” and you get 354,000 hits. I’ll be writing more about electronic evidence and discovery, but for now it’s worth noting that if you want to learn about this subject one resource stands tall: Kroll Ontrack. Kroll makes an effort to track and digest every case involving electronic discovery and computer forensics (look here to see this lengthy document, which can be sorted by topic or jurisdiction). Others, such as Lexis, are not far behind. You can sign up for Kroll’s newsletter here. And, if that’s not enough, you can order the monograph authored by two Kroll-employed attorneys, Electronic Discovery: What Every Lawyer Should Know. This 250 page book should make for a pleasant weekend of reading if you feel you really need to get up to speed on this topic. I should…

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