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Will Duke buy another confidentiality agreement?
Topic Started: Apr 1 2011, 02:42 PM (3,971 Views)
Acc Esq

Quasimodo
Apr 1 2011, 09:24 PM
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Most companies do indeed have preservation orders regarding pending litigation, but that is when discovery begins, right?


No, the duty to preserve records begins when there is a reasonable expectation that there will be litigation.

In the case of Durham, this was April 11, 2007, or before.

Ditto for Duke.

Durham has said it may not have preserved emails prior to August 2007 (IOW, for the entire period of the case). For this
it should be sanctioned; but I have little faith that it will be.


This is a correct statement of the law. I could make a strong case that the duty to preserve records arose in the spring of 2006 when it was objectively apparent that RCD were being framed. This duty is imposed on litigants and potential litigants by federal law (judicial decisions to be completely accurate).

There is a plethora of recent case law on the duty to preserve records. It is trending toward severe sanctions for willful violations and/or destruction or loss of documents. Moreover, the case law is also trending toward holding counsel financially responsible for these violations for not overseeing their clients closely enough or having knowledge (or willful ignorance) of the transgressions. My partner's wife is a federal judge. She recently defaulted a defendant for not having adequate document preservation procedures in place or followed, with the resultant loss of documents and data that were material to defendants' defenses. She also assessed several hundred thousand dollars in fees and costs against defense counsel personally -- they are from another prominent DC firm.

No defendant can plausibly claim that any loss of documents or electronic files was not willful, IMO.
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Quasimodo

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No defendant can plausibly claim that any loss of documents or electronic files was not willful, IMO.


Especially when IIRC Duke began communicating with its insurance company at the end of March 2006...
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kbp

MikeKell
Apr 1 2011, 08:41 PM
PURE SPECULATION FROM A PARENT: Duke has a new strategy according to one of the lacrosse parents I spoke with at the Brown game (before the decision announced): If discovery is allowed, Duke simply fails to cooperate on discovery (we're sorry, all those e-mails have been lost) and hope the judge continues to go along and not grant judgement to plaintiffs as a sanction. . . they predict a long long time before the first anything is handed over.
Envision with me here …all the defendants gathering for a conference, agreeing to stick together, work their stories out and cover each others backs.
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cks
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A question (or two) for the lawyers on the board:
1. must the plaintiffs' lawyers depose Brodhead (to take one of the defendants as an example) all at the same time or can each plaintiff's lawyers depose him separately?
2. to what extent can a defendant delay being deposed - is there a time frame by which the depositions must be done?
3. is there a time frame regarding the turning over of relevant documents?
4. regarding documents, must each document be specifically requested or can there be a general category (for example - all emails between Wausiolek and Brodhead between March and June) requested?
5. how would the plaintiffs know that they are receiving all relevant documents?
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jarms

MikeKell
Apr 1 2011, 08:41 PM
PURE SPECULATION FROM A PARENT: Duke has a new strategy according to one of the lacrosse parents I spoke with at the Brown game (before the decision announced): If discovery is allowed, Duke simply fails to cooperate on discovery (we're sorry, all those e-mails have been lost) and hope the judge continues to go along and not grant judgement to plaintiffs as a sanction. . . they predict a long long time before the first anything is handed over.
This may very well have been a Duke strategy before the decision was announced. However, by quoting the Moneta ("get our stories straight - please destroy this email") communication in one of his opinions, I believe Judge Beaty was telegraphing his resolve to hold Duke, in particular, to a strict standard in the discovery process.
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abb
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I have to believe that the plaintiff lawyers have a significant paper trail of emails and such that they've been holding in reserve.
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abb
Apr 2 2011, 06:55 AM
I have to believe that the plaintiff lawyers have a significant paper trail of emails and such that they've been holding in reserve.
How would these emails have been obtained?
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abb
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Truth Detector
Apr 2 2011, 07:21 AM
abb
Apr 2 2011, 06:55 AM
I have to believe that the plaintiff lawyers have a significant paper trail of emails and such that they've been holding in reserve.
How would these emails have been obtained?
From someone on the inside, I would suspect. People love to talk and leak secrets. It's always been so.
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Joan Foster

abb
Apr 2 2011, 07:26 AM
Truth Detector
Apr 2 2011, 07:21 AM
abb
Apr 2 2011, 06:55 AM
I have to believe that the plaintiff lawyers have a significant paper trail of emails and such that they've been holding in reserve.
How would these emails have been obtained?
From someone on the inside, I would suspect. People love to talk and leak secrets. It's always been so.
Methinks Duke may have it's own Wiki-leaker. :party:

You are right,Abb. Someone "leaked" at least one sensitive email. Maybe someone who didn't approve of how the Team was being treated...or how THEY themselves were being treated at work. Someone with a grudge against the Boss...someone who felt under-appreciated...over-criticized. Every organization has someone like this.

What better way..to "make 'em pay."

Literally.
Edited by Joan Foster, Apr 2 2011, 07:54 AM.
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Deleted User
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"Methinks Duke may have it's own Wiki-leaker. " otherwise known as Duki-leaker. We can only hope.
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cks
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There is always someone in the know who can obtain access to documents. And, as has been pointed out, people in positions of authority who are full of themselves always treat those under them as "lucky to be in the presesnce of one so great". Such an attitude, over time, builds resentment and a desire to put the "high and mighty one" in his or her place.

This summer is going to be a pretty hot one for some Duke administrators....I doubt that they will be able to turn the airconditioning up high enough to cool them down. Ah summer.........!
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Acc Esq

cks
Apr 2 2011, 06:04 AM
A question (or two) for the lawyers on the board:
1. must the plaintiffs' lawyers depose Brodhead (to take one of the defendants as an example) all at the same time or can each plaintiff's lawyers depose him separately?
2. to what extent can a defendant delay being deposed - is there a time frame by which the depositions must be done?
3. is there a time frame regarding the turning over of relevant documents?
4. regarding documents, must each document be specifically requested or can there be a general category (for example - all emails between Wausiolek and Brodhead between March and June) requested?
5. how would the plaintiffs know that they are receiving all relevant documents?
Good questions with few clear cut answers.

1. There will likely be one deposition of Brodhead and the other defendants where every attorney will have an opportunity to ask questions. There will be a primary or lead attorney who will go first. The other attorneys will be limited to non-duplicative questioning. This assumes that the lawsuits are consolidated for discovery purposes. If they are not consolidated, then each set of plaintiffs will have their own separate depositions of Brodhead et al.

2. There is no time frame for when specific depositions take place. The timing and sequence are largely in the hands of the plaintiffs' attorneys. They may want to take his deposition first and early or wait for document production or testimony from other depositions. This is a tactical issue in every civil case. The topic may be discussed at the upcoming Rule 26(f) conference of counsel.

3. There are nominal deadlines for document production -- 14 days after case management conference for mandatory disclosures and 30 days in response to a formal discovery request. Actual compliance can take much longer. Defendants can file objections to production which will have to be resolved by seeking an order compelling their production. There are many other stalling maneuvers that can be employed. In the long run, they are counterproductive, but they do impede and thwart discovery in the short term.

4. General categories along the very line you use as an example suffice.

5. We get very good at forensic review of documents to determine full compliance. Documents, particularly emails, refer to other documents and attachments and a close review of them often reveal hidden documents. We also take depositions of records custodians, secretaries, etc. Undisclosed documents are also uncovered during depositions, usually by inadvertent reference but sometimes by honest witnesses or witnesses with a conscience. It is not as big a problem as you might expect. Most lawyers go into cases on the working assumption that critical documents are being hidden and plan discovery with a goal of exposing the cover-up. Also, a lawyer who participates in hiding discoverable evidence is subject to disbarment. I have seen this happen twice in my own cases.
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abb
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Acc Esq
Apr 2 2011, 08:56 AM
Also, a lawyer who participates in hiding discoverable evidence is subject to disbarment. I have seen this happen twice in my own cases.
I really want to see Dean Sue disbarred. No one who did what she did should be accorded the honor of practicing law.
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cks
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abb
Apr 2 2011, 09:00 AM
Acc Esq
Apr 2 2011, 08:56 AM
Also, a lawyer who participates in hiding discoverable evidence is subject to disbarment. I have seen this happen twice in my own cases.
I really want to see Dean Sue disbarred. No one who did what she did should be accorded the honor of practicing law.
Abb:

I agree with you regarding Wausiolek. I have long felt that as bad as everyone else acted in this, Wausiolek should be singled out with special force. As a lawyer, she knew the law - that those boys were entitled to legal representation and that their parents should be informed IMMEDIATELY. By advising them the way that she did, she (it seems to me) broke one of the most important et.hical canons of the profession.

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cks
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Acc Esq:

Thank you for the answers to my questions.
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