E-Mails and NRLB: Do Employees Have Rights?

On April 30, 2014, the NLRB announced that it is considering overturning Register Guard, 351 NLRB 110 (2007), enfd. in relevant part and remanded sub nom, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

The issue resolves around the current existing law that states:

Employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.

The NLRB is requesting amici briefs that address the following questions:

1. Should the Board reconsider the conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communication systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communication systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to the be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communication systems that the Board should reconsider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

 

The briefs are due on or before June 16, 2014 and cannot exceed 25 pages.

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Attorney Client Privilege: Law firms and In-House Counsel

This is a very interesting article.  The attorney-client privilege is an important confidentiality rule that protects certain communications between a client and the lawyer/law-firm.  The attorney-client privilege is an important privilege because it encourages clients to be candid with their attorney.

The ABA adopted Resolution 103, which provides that the attorney-client privilege extends to communications between a law firm and in-house counsel for the purpose of facilitating legal services.  The resolution provides that these communications are protected to the same extent between the lawyer/law-firm and personnel of a corporation or other entity.

The ABA explains,

The measure stems from the increasing complexity of regulation, rules of professional conduct and greater disclosure obligations under legislation such as the Sarbanes-Oxley Act.

via Attorney-client privilege should apply to law firms consults with in-house counsel, ABA House says – ABA Journal.

Federal Agents Indicted in Immigration Scams

Seeking immigration or legal advice sometimes comes with the risk that the person you are talking to is committing fraud.

The most public cases of these frauds are known as “Notario Fraud” or “Immigration Consultants Fraud.”  Notarios or immigration consultants use false advertising and fraudulent contracts.  They hold themselves as qualified to help immigrants to obtain lawful status or perform other legal functions.  (You can read more about Fight Notario Fraud at the ABA).

Now, federal agents were indicted in an immigration fraud scheme led by a L.A. attorney.  The indictment alleges two conspiracies against the US involving bribery and fraud, seven counts of bribery, as well as making false statements and misuse of government seals.

The U.S. Attorney stated in a statement,

The conspiracy was allegedly orchestrated by a Los Angeles attorney who paid bribes as high as $10,000 to officials with several agencies in the Department of Homeland Security to help secure immigration benefits for aliens he was representing.

The indictment claims alleged that Kwan Man “John” Lee bribed public officials to get immigration benefits for clients who paid him, at times, more than $50,000.  Lee was charged in a previous criminal complaint and is not a defendant in the indictment.

via Courthouse News Service.

Senators’ committee will advise on new U.S. attorney

Minnesota Lawyer Blog brings to our attention that a new advisory committee has been formed to recommend a new U.S. Attorney.

The current U.S. Attorney B. Todd Jones has been nominated to serve as the permanent director of the Bureau of Alcohol, Tobacco, and Firearms (ATF) and his confirmation hearing is expected to be held soon, the release states.

Judge Timothy O’Malley of the Minnesota Office of Administrative Hearings and the former head of Minnesota’s Bureau of Criminal Apprehension will chair the committee, which will also include Annamarie Daley, a Minneapolis attorney in private practice; former U.S. Attorney Thomas Heffelfinger; Stearns County Attorney Janelle Kendall; Donald Lewis, Dean of Hamline Law School; retired St. Louis County Judge Carol Person; and Chief Thomas Smith of the St. Paul Police Department.

The committee will review letters of interest, conduct interviews, and offer guidance to Klobuchar and Franken.  In the press release, Klobuchar stated that the candidate should be a seasoned, respected attorney who is fair-minded, able to work productively with local, state and federal law enforcement agencies, and who is committed to seeing that justice is done under the law and for the people of Minnesota.

Those wishing to be considered for the position of U.S. Attorney should submit letters of interest by June 3, 2013 to: Judge Timothy O’Malley, U.S. Attorney Advisory Committee, c/o Caroline Holland, Office of Senator Amy Klobuchar, 1200 Washington Avenue South, Suite 250, Minneapolis, MN 55415.  Letters may also be e-mailed to caroline_holland@judiciary-dem.senate.gov.

via Senators’ committee will advise on new U.S. attorney – MinnLawyer Blog.

Court orders legal representation for immigrants in deportation proceedings

I first came across this decision when I was listening to NPR.  In this case, which is a first of its kind, a federal judge ordered that states have to provide legal representation for immigrants with mental disabilities – when these immigrants are being detained and facing deportation.

This case is really surprising because immigrants generally do not have a right to an attorney.  The Supreme Court in Gideon v. Wainwright, 371 US 335 (1963), decided that the right to counsel is a fundamental right in criminal cases.  In INS v. Lopez-Mendoza, 468 US 1032 (1984), the Supreme Court reaffirmed that a deportation case is not a criminal case, but an administrative one.

Since deportation proceedings are not a criminal crime, there is no right to a lawyer.  The detainees not guaranteed counsel had presumably covered children, the mentally disabled, victims of sex trafficking, refugees, torture survivors and legal permanent residents.

Federal Judge Dolly M. Fee ordered immigration courts in three states to provide legal representation for immigrants with mental disabilities who are in detention and facing deportation, if they cannot represent themselves.  The immigrant in this case had severe mental retardation that prevented him from arguing for himself in court or even understanding his situation.

The NY Times reports that subsequently, “federal immigration officials issued a new policy that would expand the California ruling nationwide, making government-paid legal representation available to people with mental disabilities in courts in every state.”

Edited: To add other Supreme Court cases.

via Legal Aid Ordered for Mentally Disabled Immigrants – NYTimes.com.

Attorney Fees and Prevailing Party

This is an interesting case, coming out of the 8th Circuit Court of Appeals, that reinforces the idea that attorney fees should only be granted to the prevailing party.

In S. Wine and Spirits of Nevada v. Mountain Valley Spring Co., No. 12-1857 (8th Cir. 2013), the 8th Circuit Court of Appeals ruled that neither of the parties prevailed in the lawsuit.  Thereby, no attorney fees would be granted.

So why did this case come to the 8th Circuit Court of Appeals?  Southern Wine and Spirits won a judgement for $861,000.  In the same token, Mountain Valley won a judgment of $183,000.  Southern argued that it was entitled to attorney fees because it had prevailed on 3 out of its 4 claims and because its monetary award was more than four times larger than the one obtained by Mountain Valley.

The District Court and the 8th Circuit Court of Appeals disagreed.  Following Nevada law, a party is not the “prevailing party” when both parties are found to be at fault.  See also Glenbrook Homeowners Ass’n v. Glenbrook Co., 901 P.2d 132, 141 (Nev. 1995) (per curiam).

Thereby, in this case, when both parties won a judgment, it is fair to say that both parties have been found at fault.

Associate attorney is the unhappiest job in America

ABA Journal reports on a Forbes story, which lists Associate Attorneys as the unhappiest at their job.  Legal Assistants make it to number 7 on the list.  The list was compiled by CareerBliss.

Heidi Golledge, chief executive of CareerBliss, told Forbes why associates are so unhappy. “In many cases, law firms are conducted in a structured environment that is heavily centered on billable hours. It may take several years for an associate attorney to rise to the rank of partner,” Golledge said. “People in this position rated the way they work and the rewards they receive lower than any other industry.”

CareerBliss based its list on reviews completed by more than 65,000 employees last year. The employees rated key factors that affect happiness on the job, including work-life balance, relationships with bosses and co-workers, work environment, job resources, compensation, growth opportunities, company culture, company reputation, daily tasks and control over daily work.

The top unhappiest jobs are:

1. Associate attorney
2. Customer service associate
3. Clerk
4. Registered nurse
5. Teacher
6. Marketing Coordinator
7. Legal Assistant
8. Pharmacy Technician
9. Technical Support Specialist
10. Case Manager

via Associate attorney is the unhappiest job in America, survey says – ABA Journal.

Minnesota Lodestar Fees in Consumer Protection cases

On February 13th, the Minnesota Supreme Court held that the lodestar method must be used when determining attorney fees in consumer protection cases.

An unanimous Minnesota Supreme Court in Green v. BMW of N. Am., A11-0581 (Minn. Feb. 13, 2013), ruled that the lodestar method applies for the attorney fee calculation under Minnesota’s lemon law.  In addition, the Minnesota Supreme Court stated that courts must consider, among other factors, the amount involved in the litigation and the results obtained.

In the Green case, the district court issued a verdict in favor of Green and awarded her $25,157 in damages.  The district court also granted attorney fees and costs in the amount of $229,064.  The Minnesota Court of Appeals affirmed.  The Minnesota Supreme Court reversed the decision, and remanded.

When determining the appropriate amount for fees – the court did not consider any other factors, other than the reasonableness of the fees.  The court heavily relied on the policy behind the fee-shifting provisions.  The court explained that the purpose of fee-shifting provisions was to provide incentives for attorneys to take these types of cases.

The district court did not award fees under the Magnuson-Moss Warranty Act because the court did not allow for double recovery.

The Supreme Court reversed the fees decision because the lodestar method should have been applied.  Under Minnesota’s Lemon Law, Minn. Stat. 325F.665, subd. 9, consumers “may bring a civil action to enforce” the lemon law and “recover costs and disbursements, including reasonable attorney’s fees incurred in the civil action.”

The Supreme Court explained that Minnesota courts have consistently used the lodestar method for determining the reasonableness of fees.  In fact, courts have used the lodestar method in numerous settings, including MFLSA, MHRA, Minnesota Securities Act, and in polygraph testing.  Given the broad application of lodestar, the Supreme Court held that applying lodestar in consumer protection cases was appropriate.

When applying the lodestar method, courts must first determine the number of hours reasonably expended and multiply those hours by a reasonable hourly rate.  When determining “the reasonable value of legal services,” the court must consider “all relevant circumstances.”  The Supreme Court explained,

The circumstances that inform a court’s “determine[ation of] reasonableness include ‘the time and labor required; the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.'”

The Supreme Court rejected the argument that the “amount involved” was confined to a consideration of the amount involved only as it relates to a prevailing party’s percentage of success.  The Supreme Court held that courts look “to both the amount involved and the results obtained.” (emphasis in original).

Sanctions against Lawyers and Client for ESI

I bring to you Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013).  In this case, the District of Maryland court sanctioned both the lawyers and the client for electronic discovery violations.

This case is instructive to both – attorneys and clients.  It has long been established that there is a duty to disclose and to preserve relevant information.  That is, information that pertains to anything that could relate (in any way) or might relate to the lawsuit.

Since Zubulake v. UBS Warburg, which had around five different electronic discovery disputes, the courts have embraced the concept that the duty to disclose includes electronic information.

So what is electronic information?  It is a very broad definition, which includes information stored in your cell phone, smartphone, computer, laptop, tablet, and so on.  This information includes not just what you see (i.e. text in a document), but also information about the document (which is commonly referred to as meta-data).

Coming back to the case – this case is interesting and instructive because it highlights and confirms that lawyers too can be held responsible for the duty to disclose and preserve information.

This case regarded the format of production.  When the plaintiffs’ counsel signed the response to requests for production, the attorney stated that responsive documents would be made available for inspection and copying.  By signing the legal document, the attorney was in fact certifying that the plaintiff had given the attorney all responsive information and documents.

So what happened?  The attorney, at the time he signed the court document, had merely provided the requests to the client and had not received any documents.  The servers and the laptops had not been accessed and had not been searched.

When the documents were produced (a couple of days before the deposition), the documents were in PDF format and had no bates stamping.  Bates stamping are the numbers that are used to identify the document at a later point.  When a document is converted to a PDF, the document does not have the meta-data of the original document.

Given the circumstances, the court sanctioned the plaintiff and the plaintiffs’ lawyers.  The court explained,

Branhaven essentially misled defendants and their counsel, in its affirmative statement that responsive documents would be ‘available for inspection and copying at a mutually agreeable time,’ while in fact not knowing what if any responsive documents there might be and where if ever they would be identifies and produced.

Further, when addressing the delay of the production of documents, the court stated,

Plaintiffs’ counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting – if not misleading defendants – that it had identified responsive documents is sanctionable.

Regarding the format of the documents (PDF instead of the native format; and no Bates stamping), the court held that plaintiff and its counsel violated the rules.  The court explained concluded that producing documents in a PDF format “appear[ed] contrary to customary and reasonable practice especially in voluminous productions and further complicated defendants’ review of the documents, causing further expense and delay.”  Further, the court indicated that documents without Bates stamping and .tiff format were “not reasonably usable,” and therefore violative of Rule 34.

Ultimately, the court berated plaintiffs’ counsel.  The court sternly stated (emphasis added),

As plaintiff’s counsel has an affirmative duty to assure that their client responds completely and promptly to discovery requests.  Their inaction seriously frustrated the defense of this case.  The record here demonstrates a casualness at best and a recklessness at worst in plaintiff’s counsel treatment of their discovery duties.… If all counsel operated at this level of disinterest as to discovery obligations, chaos would ensue and the orderliness of the discovery process among counsel in federal courts, which is exquisitely dependent on honorable attorney self-regulation, would be lost.

There are many ways these sanctions, or the mitigation of these sanctions, could have been avoided.  First, the attorneys could have specified the format of the documents during their Rule 26(f) report and joint discovery plan.  Second, nowadays, there are many vendors that when they scan your documents into a discovery program (such as Summation), they immediately insert Bates stamping.

via Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g) : Electronic Discovery Law.

Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group – that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.