A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
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Chris Hanslik, Craig Dillard & Matt Veech
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
Presented by: Chris James & Kasi Chadwick
to Houston Bar Association on
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BoyarMiller - Review of Boilerplate Contract Provisions: Say What You Mean an...BoyarMiller
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Statutory changes have further limited the applicability of no contest clauses to apply only to certain specific types of legal actions – the most common being direct attacks on the estate planning documents themselves, known as “direct contests”
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In 2009, I presented to Professor Forgues’ Business Law Class at Plymouth State University addressing the high cost of business litigation and using Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs. 642 F. Supp. 2d 58 (D. Mass. 2009) as a case study.
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Constitutional law.
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
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Constitutional law.
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
As we previously projected in our recent article/blog posting, MEHTA V. DEPT. OF STATE: WILL PLAINTIFFS BE SUCCESSFUL IN OBTAINING THE INJUNCTIVE RELIEF IN THE CLASS ACTION COMPLAINT?, the United States District Court for the Western District of Washington at Seattle on October 7, 2015, denied the Motion for Injunctive Relief (Temporary Restraining Order) by a group of high-skilled immigrants that would have forced the Department of Homeland Security (“DHS”) to accept Adjustment of Status Applications (“AOS”) as per the “Filing Date” chart contained in the originally issued October 2015 Visa Bulletin by the Department of State (“DOS”).
Pleading Standards Applied to Asbestos and Mass Tort Claimsdsalmeida
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A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
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Business Law Essay
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Part of the webinar series: NEWBIE LITIGATOR SCHOOL- PART 1 2022
See more at https://www.financialpoise.com/webinars/
The Federal Rules of Civil Procedure (Series: Newbie Litigator School)Financial Poise
This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the attendee will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour long discussion.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/the-federal-rules-of-civil-procedure-2020/
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
Lawyers often tell their clients that while they must prepare as if every case will go to trial, more than 90% of cases are resolved before trial. If a settlement is not reached, the resolution typically comes through the court ruling on a dispositive motion. This episode begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal standard, and how that standard is put into practice. We then discuss summary judgment motions. That discussion includes everything from making a summary judgment record to brief writing, to making a cross-motion for summary judgment. This webinar shines a light on what happens to the great percentage of cases that don’t make it to trial.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
Civil ProcedureWeek 2Prior to Proceedings 11.docxsleeperharwell
Civil Procedure
Week 2
Prior to Proceedings 1
1
Workshop Overview
1.0 Introduction
2.0 Legal Ethics and Civil Litigation
3.0 Cause of Action
4.0 Limitations of Actions
5.0 Personal Injuries Process
Introduction
This week and next week we are looking at what needs to be considered prior to commencing an action.
Next week we look at the courts and which court certain matters can be brought in.
Client Care
Should you find yourself working as a litigation solicitor, the nature of your clients and the management skills required will vary according to:
large/medium/small firm;
community/government/corporate sector; and
position within firm/organisation.
For example:
large commercial firm – sophisticated, well-resourced, repeat clients; large matters with sometimes many lawyers working exclusively on one matter.
small firm – less sophisticated, one-off clients with relatively few resources; one lawyer will be responsible for many files.
Client Care
Regardless of the firm/organisation, there are some basic tenets of client care which are generally applicable:
promote positive and productive interaction between clients and all members of the firm;
be available, approachable, interested, understanding of client needs, trustworthy, honest and competent;
mutual expectations should be clear, with transparent complaint resolution procedures in place; and
clients should be updated regularly, and receive value for money
Client Care
Honesty and competence are particularly significant in a litigation context:
any client contemplating litigation needs to understand that litigation is expensive, time consuming and uncertain; and
clients need to be provided with a realistic, not optimistic, assessment of the advantages and disadvantages of commencing litigation.
Rules about client care may be enforced in contract and/or tort, and are reflected in statute and delegated legislation.
For example, Legal Profession Act 2007 (Qld):
Part 3.4 – disclosure clients regarding costs (s 308)
File Management
Basic file management requirements include:
keeping a paper-trail (or what electronically now amounts to a paper trail):
everything – instructions, advice, research, memos, record of telephone conversations, and so on; and
important if a client challenges you on a step taken in the action or on costs; dates and bring-up systems:
paper and electronic; and
very important in litigation, where missed court dates, filing times etc can be very costly for your client;
working on files of others:
clear instructions from acting solicitor crucial;
can be totally responsible (eg acting solicitor on leave) or partially (eg preparation of a research memo on a particular issue); and
again, paper-trail very important; handover of files:
carefully manage with client;
clear instructions important; and
usual practice is to leave a file note providing background on the matter, current status, and necessary further steps/important dates.
Ethics and the A.
If you say the word “discovery” to a litigator, the reaction may not be kind. Discovery—the exchange of relevant information, usually in the form of documents or oral depositions, takes up the majority of a litigator’s time and costs clients the most money. This episode begins with a summary of the rules governing discovery. In particular, we discuss the new federal rules governing the preservation and discovery of electronic data and information, and the new concept of “proportionality” in discovery. We also discuss the practicalities of discovery: budgeting, tactics, and common opportunities and pitfalls. This hour demystifies a mystifying process, and to provide listeners with what they need to know to not get tripped up in litigation. At the very least, you will understand why the acronym “ESI” causes our panel to wince.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
ETH 321 Final Exam1. Civil enforcement powers regarding federal .docxPOLY33
ETH 321 Final Exam
1. Civil enforcement powers regarding federal antitrust matters belong to _______.
the Treasury Department
the Department of Revenue and Taxation
the FTC and the Department of Justice
the Department of Labor
2. Which of the following is true of tort law?
It protects people from being tried twice for the same crime.
Tort law typically deals with breach of contract.
It provides compensation to those workers who have been injured on the job.
It sets limits on how people can act and use their resources.
3. Fred takes Betty to dinner at a very expensive and exclusive restaurant The menu does not mention prices The server takes their order and both Betty and Fred enjoy the meal immensely. When the bill comes, Fred refuses to pay because the menu had no prices and because he and the server never engaged in language indicating and offer and acceptance. The server said, “Are you ready to order?” and when Fred said “Yes,” the server merely asked “What may I get you tonight?” Which of the following is true?
Fred must pay based on an implied-in-fact contract theory.
Fred must pay based on a promissory estoppel theory.
Fred must pay based on expressed contract theory.
Fred is correct because no contract was formed.
4. Which of the following statements is true of the WARN Act?
It requires employers to give notice to an “at will” employee that he/she is being fired.
It requires employers to give notice to employees that they are being subjected to polygraph tests.
It requires employers to give notice to employees that an unscheduled drug test will be conducted for all employees.
It requires employers to give notice of a scheduled mass layoff.
5. _____________ jurisprudence supports the idea that law can and should change to meet new developments in society.
Sociological
Natural
Historical
Positive law
6. Which of the following is true of the assumption of risks during delivery of goods?
The buyer is responsible for damages to goods when the seller is about to transfer for shipment.
The seller is liable for any damages incurred to the goods during shipment.
The buyer is liable for any damages incurred to the goods during shipment.
The seller is always responsible for shipping the goods to the buyer.
7. A 911 emergency response service needs operators who are bilingual in English and Spanish A few applicants of Spanish origin are rejected due to poor English-speaking skills. They file a complaint on the grounds of discrimination based on nationality. Their complaint is squashed. Here, the defense of the federal government is on the grounds of _______.
inculpatory evidence
circumstantial evidence
bona fide occupational qualifications
exclusionary rule
8. Article 6 of the Treaty on European Union called the Maastricht Treaty states the EU is founded on:
private markets
rule of law
specific performance
stare decisis
9. Interpreting Congressional intent which of the following is never a bona fide occupational qualification (BFOQ)?
Race
Nat ...
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𝐓𝐉 𝐂𝐨𝐦𝐬 provides unlimited package services including such as Event organizing, Event planning, Event production, Manpower, PR marketing, Design 2D/3D, VIP protocols, Interpreter agency, etc.
Sports events - Golf competitions/billiards competitions/company sports events: dynamic and challenging
⭐ 𝐅𝐞𝐚𝐭𝐮𝐫𝐞𝐝 𝐩𝐫𝐨𝐣𝐞𝐜𝐭𝐬:
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Enterprise excellence and inclusive excellence are closely linked, and real-world challenges have shown that both are essential to the success of any organization. To achieve enterprise excellence, organizations must focus on improving their operations and processes while creating an inclusive environment that engages everyone. In this interactive session, the facilitator will highlight commonly established business practices and how they limit our ability to engage everyone every day. More importantly, though, participants will likely gain increased awareness of what we can do differently to maximize enterprise excellence through deliberate inclusion.
What is Enterprise Excellence?
Enterprise Excellence is a holistic approach that's aimed at achieving world-class performance across all aspects of the organization.
What might I learn?
A way to engage all in creating Inclusive Excellence. Lessons from the US military and their parallels to the story of Harry Potter. How belt systems and CI teams can destroy inclusive practices. How leadership language invites people to the party. There are three things leaders can do to engage everyone every day: maximizing psychological safety to create environments where folks learn, contribute, and challenge the status quo.
Who might benefit? Anyone and everyone leading folks from the shop floor to top floor.
Dr. William Harvey is a seasoned Operations Leader with extensive experience in chemical processing, manufacturing, and operations management. At Michelman, he currently oversees multiple sites, leading teams in strategic planning and coaching/practicing continuous improvement. William is set to start his eighth year of teaching at the University of Cincinnati where he teaches marketing, finance, and management. William holds various certifications in change management, quality, leadership, operational excellence, team building, and DiSC, among others.
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
1. A Penny Saved is a Penny Earned:
Navigating Your Company through
Spoliation Claims and Strategies
to Maximize Recovering
Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
BoyarMiller
ACC Houston Chapter May 2013
2. Five Big Issues in Spoliation Battles
When did duty to preserve arise?
Did the accused party breach the duty?
Did the accused party act with a “culpable mental
state”?
Did the spoliation prejudice the other party?
What level of sanction is warranted?
3. When Does Duty to Preserve Arise?
Possible answers:
― When litigation reasonably anticipated?
― When you receive a demand letter or preservation letter from
adversary?
― When suit is filed?
Courts in agreement on “reasonably anticipated.”
― E.g. Zubulake IV, Rimkus, Apple v. Samsung
Compare to work product protection.
4. Apple v. Samsung Ruling on Duty to Preserve
Court rejected Samsung’s argument that duty arose
when Apple filed suit.
― Samsung had duty to preserve when Apple communicated
specific positions that Samsung was infringing.
― Samsung’s own litigation hold used against it.
― Apple’s failure to issue hold did not absolve Samsung.
Reasonably anticipate litigation – fact issue.
5. Litigation Reasonably Anticipated
What do you need to do?
Send litigation hold to document custodians?
Send preservation letter to the other guy?
Send response to preservation letter?
Engage outside counsel?
Sit down with opposing counsel?
Consider conference requirements imposed by rules or
judge?
6. What Should Litigation Hold include?
Zubulake IV
Who?
― “Key players” likely to have relevant information.
What?
― Relevant documents.
How?
― One way: retain all backup tapes for relevant personnel,
catalog later-created documents, make mirror-image of
computer system.
7. Scope of Litigation Hold
Zubulake IV
Suspend document retention/destruction system to
preserve relevant documents.
Include all accessible backup media (data in readily
usable format).
Include inaccessible backup media for key players if
information not otherwise available.
8. What to Include in Litigation Hold?
What devices? BYOD policy?
― Laptop computers? Thumb drives? Disks?
― Voice mail?
― Tablets?
― Smart phones?
― Home computers?
What documents?
― Personal email accounts? Instant messages?
― Social media?
How do you determine “key players”?
9. Is the Litigation Hold Enough?
Zubulake V says counsel must oversee compliance:
― Periodically re-issue litigation hold.
― Interview employees.
― Communicate directly with key players.
― Familiar with client’s “data retention architecture”.
― Speak with IT personnel.
― Secure backup media.
Samsung breached duty to preserve by failing to
monitor compliance with litigation hold.
10. Samsung’s August 2010 Litigation Hold
Court found Samsung’s hold inadequate.
― Litigation hold sent to small group of employees.
― Did not suspend auto-delete feature of email system.
― No record of preserving backup media.
― No follow up with employees for seven months.
11. “Culpable Mental State”?
What state of mind is sufficient to support an adverse
inference instruction?
― Fifth Circuit: requires “bad faith”. (Rimkus)
― Second Circuit: negligence sufficient (Residential Funding).
― Apple v. Samsung: “conscious disregard”.
Proposed amendment to Federal Rule 37(e).
― Overrule Residential Funding.
― Adverse inference would require: (A) willful or bad faith
spoliation or (B) irreparable deprivation.
12. Prejudice?
Who has burden to prove prejudice?
Proof of prejudice required if spoliation willful or in bad
faith?
― Residential Funding and Zubulake V: in 2d Cir. willful spoliation
creates presumption of relevance and prejudice.
― Texas and Fifth Circuit: not clear?
How do you prove prejudice?
― The “we’ll never know” argument.
― Extrinsic evidence.
• Catch-22?
13. Remedies for Spoliation
The available remedies for spoliation range from minor sanctions such as
paying the cost of re-deposing witnesses to case-dispositive “death
penalty” sanctions such as dismissal or a default judgment. Included in
these available remedies is the option for the Court to exclude evidence or
to give an “adverse inference” instruction to the jury.
The spoliation instruction to the jury can vary in harshness depending on
the degree of spoliation:
― A “mild” adverse inference instruction may merely inform the jury that a party
failed to comply with its duty to preserve relevant evidence, and the jury can
decide what conclusion to draw.
― A “intermediate” adverse inference instruction can tell the jury that it can, but is
not required to, presume that the spoliated evidence would have been
unfavorable to the spoliating party.
― A “harsh” adverse inference instruction can tell the jury that certain facts are
deemed proven as a result of the spoliation.
15. Recovery of Attorneys’ Fees
In Texas, the general rule is that in the absence of
legislation providing otherwise, litigants must pay their
own attorneys’ fees – a.k.a. the “American Rule.”
MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660 (Tex. 2009)
Texas has some 155 different statutory provisions that
allow for the recovery of attorneys’ fees.
16. Recovery of Attorneys’ Fees in Commercial Disputes
The provisions that generally arise in commercial disputes:
CPRC 38.001 – Breach of Contract actions
Contractual provisions for prevailing party
CPRC 37.009 – Texas Uniform Declaratory Judgment Act
CPRC 134.005 – Texas Theft Liability Act
TRCP 91a – Texas’ new Motion to Dismiss rule
17. Attorneys’ Fees ― CPRC 38.001
Recovery of fees is permissible i.e. “may”.
TEX. CIV. PRAC. & REM. CODE § 38.001
The standard under section 38.001:
― The party must prevail on a claim for which fees are
recoverable and the party must recover a judgment for
damages or injunctive relief.
Nominal damages are not sufficient to support an award
of attorneys’ fees.
ITT Commercial Fin. Corp. v. Riehn, 796 S.W. 2d 248 (Tex. App. – Dallas 1990, no
writ); MBM Fin, 292 S.W. 3d at 666 (“[T]his court has never said whether nominal
damages are enough.”)
18. Attorneys’ fees – Prevailing Party Provision
A prevailing party is whatever the contract defines a
prevailing party to be.
If the contract does not define “prevailing party,” the
court will give the term its ordinary meaning.
Epps v. Fowler 351 S.W. 3d 832 (Tex 2011)
The prevailing party may be defined in the contract in a
way such that a party defending the action may recover
its fees if successful in the defense.
19. Texas Uniform Declaratory Judgments Act
The court may award costs and reasonable and
necessary attorney's fees as are equitable and just.
TEX. CIV. PRAC. & REM. CODE §37.009
The equitable and just standard means that the award
of fees is within the trial court’s discretion and a
party is not entitled to recover fees.
Importantly, an award of attorneys’ fees as are equitable
and just may mean that the party defending the
declaratory judgment action recovers its fees.
Mirror image rule.
20. Texas Covenants Not to Compete Act
Section 15.52 – Preemption of Other Law
The criteria for enforceability of a covenant not to
compete provided by Section 15.50 of this code and the
procedures and remedies in an action to enforce a
covenant not to compete provided by Section 15.51 of
this code are exclusive and preempt any other
criteria for enforceability of a covenant not to compete
or procedures and remedies in an action to enforce a
covenant not to compete under common law or
otherwise.
21. No Fees for Employer Enforcing a 15.50 Covenant
An employer enforcing a 15.50 covenant will not be entitled
to an award of attorneys’ fees.
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied)
In Glattly, the Houston First Court of Appeals upheld the trial court’s
decision refusing to award attorneys’ fees even where the employment
agreement at issue contained a prevailing party provision. The First Court
of Appeals made three important conclusions regarding Section 15.52:
― It does not contain a provision that allows employers to recover
attorneys’ fees;
― It expressly states the remedies in the Act are the exclusive remedies;
and
― It expressly states that it preempts any other remedies in an action to
enforce a covenant not to compete.
22. Employee Defending Enforcement May Be Entitled to Fees
However, an employee defending against enforcement of a
15.50 covenant may be entitled to an award of attorneys’
fees if successful in such defense in two ways:
Under the statue if the employee shows that the employer knew at
the time of execution of the agreement that the covenant did not
contain restrictions that were reasonable and the employer sought
to enforce the covenant to a greater extent than was necessary to
protect the goodwill or other business interest of the employer; or
Pursuant to a declaratory judgment action seeking a declaration
that the covenant is not enforceable.
23. Texas Theft Liability Act
Each person who prevails in a suit under this chapter
shall be awarded court costs and reasonable and
necessary attorney's fees.
TEX. CIV. PRAC. & REM. CODE 134.005(B)
The award of fees is mandatory.
Brown v. Kleerekoper WL 816393 (Tex. App. – Houston [1st Dist.] 2013, no pet.
history)
24. Dismissal of Baseless Causes of Action
Grounds for the Motion to Dismiss
― The cause of action has no basis in law or fact.
TEX. R. CIV. P. 91A
A motion to dismiss must be heard within 60 days after
the pleading containing the cause of action is served.
Attorneys’ Fees
― The court must award the prevailing party on the motion all
costs and reasonable and necessary attorney fees incurred
with respect to the challenged cause of action in the trial court.
The court must consider evidence regarding costs and fees in
determining the award.