February 2008

The words “hostile work environment” get tossed around a lot by lawyers. But, just what constitutes a hostile environment that’s actionable under Title VII of the Civil Rights Act of 1964 is uncertain. It’s sort of a “I can’t define it, but I know it when I see it” standard. That standard may work at the two extremes (clearly egregious vs. obviously benign behavior), but it can be difficult to apply in the grey zone.

The First Circuit has weighed in on this issue with an important decision, reported in today’s Boston Globe, reversing summary judgment against an employee of the Town of Grafton who claimed a hostile work environment based on the assertion that her supervisor repeatedly stared at her breasts. The First Circuit saw the behavior in this case differently than the trial judge, who had dismissed the case.

Quoting from the Boston Globe article:

The three-member appeals panel said that Billings’s sexual harassment suit had raised serious claims, including that Connor had created a hostile work environment by staring at the breasts of several town employees and, after Billings complained to the Board of Selectmen around 2001, had retaliated against her by transferring her to another municipal job.

Read the full article

SJC Approves Joint Defense Agreements in Massachusetts

by Lee Gesmer on February 7, 2008

Lately, I’ve had a number of cases where the lawyer for a co-defendant wants to cooperate. Because this usually involves sharing attorney-client privileged information, we agree that our discussions are covered by the “joint defense privilege,” and sometimes enter into a “joint defense agreement.”

Recent discussions in this area reminded me that I never mentioned the Massachusetts Supreme Judicial Court’s 2007 decision in Hanover Insurance Company v. Rapo & Jepsen Insurance Services, Inc., where the SJC, for the first time, gave broad approval to cooperation between attorneys whose clients share a common interest. The court held (or sugggested) that the “common interest doctrine,” which enables joint defense agreements, covers not only co-defendants, but co-plaintiffs, nonparties to litigation, and a party and a nonparty. A shared interest agreement need not be in writing, and the clients need not have been aware of it or consented to it. The interests of the parties need not be identical, as long as they are similar.Read the full article

I have written several times about the disciplinary proceedings against several attorneys who represented the losing party in the Demoulas cases. (see here, here and here).

As I described in the first of these blog entries:

The saga of how Gary Crossen (then of Foley, Hoag & Eliot and former ethics counsel to two Massachusetts Governors), Richard Donahue (a former President of the Massachusetts Bar Association, chair of its Commission on Professionalism and President of Nike, Inc.), and Kevin Curry, a former Massachusetts Assistant Attorney General, lured the judge’s former law clerk out-of-state in order to tape record his “confession,” attempted to bully him into signing an affidavit, conducted surveillance on him, and more, is described in agonizing detail in the 229 page decision. As a fan of hard boiled detective novels (including Boston’s current claim to fame, Dennis LeHane, author of Mystic River and other engrossing works), I can only say that in Boston, reality is stranger than fiction.

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Judges need to keep learning too, and a major source of education for them is the Federal Judicial Center, an organization dedicated to judicial education.

In fact, the FJC site is pretty cool. For example, here is a page that provides the biography of every federal judge (all courts, from District Court to Supreme Court), since 1789. Here is the bio of Judge Andrew A. Caffrey (deceased), who made me sweat quite a bit during this 37 day trial back in the early 1980s.

In any event, the FJC publishes various learning materials for judges, and last year they published a short work titled, Managing Discovery of Electronic Information: A Pocket Guide for Judges, authored by Judge Barbara J. Rothstein and former U.S. Magistrate Ronald J. Hedges.

As I’ve noted in the past, electronically stored information (or ESI, as its known), presents enormous challenges to lawyers and judges, almost all of whom were educated long before the last decade’s explosion in ESI.… Read the full article