Tag Archives: costs

Safe Act for Victims of Domestic Violence of Sexual Assault

On October 1, 2013, the “Safe Act” becomes effective.  The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault.  The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.

The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault.  The Safe Act covers:

  1. The employee,
  2. The employee’s child,
  3. The employee’s parent,
  4. The employee’s spouse,
  5. The employee’s domestic partner, or
  6. The employee’s civil union partner.

Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:

  • Seek medical attention for, or recover from, physical or psychological injuries;
  • Obtain servies from victim services organization;
  • Obtain psychological or other counseling;
  • Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;
  • Seek legal assistance or remedies; or
  • Attend, participate in, or prepare for court proceedings.

If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.

via Labor Employment Law Blog: New Jersey Provides Unpaid Leave to Victims of Domestic Violence.

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E-Discovery: Defendant not required to redo discovery

In this product liability case, the issue is when does a defendant meet its discovery obligations.  In other words, does defendant satisfy its duty by using a keyword search.

In this product’s liability case, In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that the burden of the costs outweighed any benefits.  Here, the costs of starting over with 19.5 million documents outweighed the possibility of finding additional relevant documents.  The case is as follows.

Defendant (Biomet) relied on keyword searching in order to reduce the volume of information.  The documents to be searched were reduced from 19.5 million to 2.5 million.  Afterwards, Biomet used predictive coding.  Throughout this process, Biomet spent $1.07 million, and expects the e-discovery costs to total between $2 million and $3.25 million.

Plaintiffs asked the court to require Biomet to start all over again and only use predictive coding.  Plaintiffs wanted to be part of the process and give input as to the predictive coding language.  The court disagreed.

In explaining its decision, the court relied on proportionality.  The proposal to start all over again (utilizing the original 19.5 million documents) “[sat] uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Further, starting again would “entail a cost in the low seven-figures” and that the “confidence tests” run by Biomet “suggest a comparatively modest number of documents would be found.”

The court agreed that predictive coding would identify additional relevant documents.  However, the benefits would not outweigh the burdens.

 

via Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding : Electronic Discovery Law.

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Cost-Saving Ideas for Lawyers and Law Firms

Lawyers and law firms will always run up to the question of cost-savings and administrative costs.  One of these areas is the overuse of email by employees.  This does not only raise costs of storage in the server/back up, but also raises costs of lawyer billing time lost.  With this said, lawyers and law firms need to be wary of the ways that these cost-savings approaches bring.  This article will discuss one of the cost-savings ideas and discuss the risk of this idea.

The Harvard Business Review had a very interesting article discussing the high prices when “calculating average typing speed, reading speed, response rate, volume of email, average salary, and total employees.”  Tom Cochran, the author of “Email Is Not Free,” revealed that in his case, they were looking at a 7 figure price tag.

If you think about the emails and the paid storage for documents and emails, the price that a lawyer/law firm pays can really start to drain their financial resources.  In fact, the overuse of email comes from a system where there is no perceived cost.  Emails will be sent out regarding lunch invitations, short status updates, confirmations of receipt of the prior email, and so on.

When a typical email contains an average of 140 words, or roughly 3 paragraphs, is there a better way to reduce these costs?  By the use of cloud computing, an organization can significantly reduce these costs.  The article discusses the use of cloud apps, such as Skype, GChat, Dropbox and so on.

So is this the way to go?  I think that in the balance of short emails (with no confidential information), it makes sense.  Instead of sending an email stating that you are ready to go to lunch or that you will have to change a meeting time, it makes sense.  The message has no confidential or attorney privileged information.

However, the law firm and lawyer must be wary of using these services for case-related confidential and privileged information.  These cloud computing applications are not secure.

Keeping in mind that cloud computing often stores messages in a number of systems, which you may not be aware of, there might be a breach of security.

Ask yourself the following questions:

  1. Do you know if the cloud computing app will save the messages in their cloud computing service?
  2. Do you know where is the cloud server located?
  3. Do you know what contract does the company offering cloud computing services (third party) has with the company that provides the server storage in the cloud (another third party)?
  4. Do you know where the company that provides the storage is located?
  5. Will these messages be stored in the computer or mobile/tablet device?
  6. If so, will the mobile/tablet carrier save these messages in their own cloud computing system?
  7. Do you know how safe is the cloud transfer of information?
  8. Do you know how safe is the cloud computing storage?

In other words:  Will it be cost-saving?  Yes.  Can you use it for all communications?  No.

So does using these cloud computing services worth it for information that is not privileged or confidential?  As a lawyer or law firm, you must evaluate the situation.

First of all, you must provide adequate training and warn your employees of any misuse of these apps.

Second, you must think of the risk that employees will breach this policy.  Will adequate and regular training reduce this risk?

Third, you must balance the cost-saving costs with this risk.

via Email Is Not Free – Tom Cochran – Harvard Business Review.

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

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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).

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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.

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VA Can’t Refuse To Treat Medical Conditions Of Inmates

The District Court for the Western District of Virginia refused to dismiss a class action alleging that a womens prison in Virginia fails to treat medical conditions as a way to cut costs.

Five prisoners at Fluvanna Correction Center for Women FCCW in Troy, Va., are leading the charge against the Virginia Department of Corrections VDOC, which they say routinely violates Eighth Amendment rights and shows deliberate indifference to medical needs.

U.S. District Judge Norman Moon denied the states motion to dismiss Tuesday.

“Plaintiffs allege that, as a result of cost-saving concerns, medical personnel at FCCW have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns,” he wrote. “Indeed, the complaint is replete with specific examples of how Plaintiffs have been adversely affected as a result of this concern.”

The decision states that officials with the Virginia Department of Corrections allegedly received hundreds of grievances, which should have notified them of a continuing problem at the prison facility.  Consequently, Judge Moon held that the class may proceed.

“Given that plaintiffs have alleged that the VDOC defendants remained inactive despite personal knowledge of information disclosing alleged ongoing deficiencies in medical care, plaintiffs Eighth Amendment claim may proceed against them directly.”

The complaint alleges the prison refused to treat medical conditions in the following examples of the putative class representatives.

  • The prison failed to give the proper dosage of medication prescribed to Cynthia Scott after she was diagnosed with sarcoidosis, a disease that formed nodules in her lungs, spleen and liver. Scott also allegedly developed a blood clot in her leg that was left untreated until it traveled to her lungs.
  • Bobinette Fearce, a second named plaintiff, says she has degenerative disc disease, causing her chronic pain. The prison doctors allegedly refused to give her enough Tylenol to alleviate her pain. She also claims to suffer from incontinence and must wear a diaper at all times, but an FCCW doctor said she is “too old to be afforded the surgery that would correct her bladder condition.”
  • Patricia Knight says that a stroke caused her to lose grip strength and made walking difficult. Because her conditions allegedly prevent her from performing any prison job, Knight says she cannot afford the $5 “co-pay” for prison medical visits and therefore gets little medical care.
  • Marguerite Richardson says she visited the medical staff when she developed a number of boils on her leg. A test found that she had a highly contagious antibiotic-resistant infection, but the prison waited five months to give her medication to treat the infection, the complaint states.
  • Rebecca Scott, the fifth plaintiff, allegedly suffers from recurring tonsillitis. She says an FCCW doctor told her he “does not believe in removal of tonsils by surgery,” that the prison has rejected her requests to see an outside specialist.

via Courthouse News Service.

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District of MN Bill of Costs

The District Court of Minnesota has put up an amended Bill of Costs Guide in order to conform to the recent US Supreme Court decision regarding document translation services (previously reported on this blog) and the taxation of costs statute.

You can access the Bill of Costs Guide here.

 

In sum, on page 10, the Guide states that translation services are not taxable costs.

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Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands

Courts are becoming increasingly cognizant of the eDiscovery burdens that the information explosion has placed on organizations. Indeed, the cases from 2012 are piling up in which courts have rejected demands that sanctions be imposed for seemingly reasonable information retention practices. The recent case of Grabenstein v. Arrow Electronics (D. Colo. April 23, 2012) is another notable instance of this trend.

In Grabenstein, the court refused to sanction a company for eliminating emails pursuant to a good faith document retention policy. The plaintiff had argued that drastic sanctions (evidence, adverse inference and monetary) should be imposed on the company since relevant emails regarding her alleged disability were not retained in violation of both its eDiscovery duties and an EEOC regulatory retention obligation. The court disagreed, finding that sanctions were inappropriate because the emails were not deleted before the duty to preserve was triggered: “Plaintiff has not provided any evidence that Defendant deleted e-mails after the litigation hold was imposed.”

Furthermore, the court declined to issue sanctions of any kind even though it found that the company deleted emails in violation of its EEOC regulatory retention duty. The court adopted this seemingly incongruous position because the emails were overwritten pursuant to a reasonable document retention policy:

“there is no evidence to show that the e-mails were destroyed in other than the normal course of business pursuant to Defendant’s e-mail retention policy or that Defendant intended to withhold unfavorable information from Plaintiff.”

The Grabenstein case reinforces the principle that reasonable information retention and eDiscovery processes can and often do trump sanctions requests. Just like the defendant in Grabenstein, organizations should develop and follow a retention policy that eliminates data stockpiles before litigation is reasonably anticipated. Grabenstein also demonstrates the value of deploying a timely and comprehensive litigation hold process to ensure that relevant electronically stored information (ESI) is retained once a preservation duty is triggered. These principles are consistent with various other recent cases, including a decision last month in which pharmaceutical giant Pfizer defeated a sanctions motion by relying on its “good faith business procedures” to eliminate legacy materials before a duty to preserve arose.

The Grabenstein holding also spotlights the role that proportionality can play in determining the extent of a party’s preservation duties. The Grabenstein court reasoned that sanctions would be inappropriate since plaintiff managed to obtain the destroyed emails from an alternative source. Without expressly mentioning “proportionality,” the court implicitly drew on Federal Rule of Civil Procedure 26(b)(2)(C) to reach its “no harm, no foul” approach to plaintiff’s sanctions request. Rule 2626(b)(2)(C)(i) empowers a court to limit discovery when it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Given that plaintiff actually had the emails in question and there was no evidence suggesting other ESI had been destroyed, proportionality standards tipped the scales against the sanctions request.

The Grabenstein holding is good news for organizations looking to reduce their eDiscovery costs and burdens. By refusing to accede to a tenuous sanctions motion and by following principles of proportionality, the court sustained reasonableness over “gotcha” eDiscovery tactics. If courts adhere to the Grabenstein mantra that preservation and production should be reasonable and proportional, organizations truly stand a better chance of seeing their litigation costs and burdens reduced accordingly.

via e-discovery 2.0 » Blog Archive » Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands.

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“Compensation of interpreters” does not include document translation

The Supreme Court decided Taniguchi v. Kan Pacific Saipan, holding that the cost of document translation is not a taxable cost under the federal cost-shifting statute, 28 U.S.C. § 1920. In an opinion by Justice Samuel Alito, the Court ruled – by a vote of six to three – that the Ninth Circuit had it wrong when it ruled that 28 U.S.C. § 19206’s allowance for “compensation of interpreters” includes translation of written documents, and not only what everyone agrees that provision comfortably covers: oral interpretation, such as in-court interpretation of testimony in a language other than English. Interestingly, it wasn’t just the Ninth Circuit that had it wrong. Most federal courts that had addressed the question had ruled that subsection 19206 covers document translation, and, as the dissent pointed out, awards for those costs have been commonplace in the district courts.

In this case, the Court held that “because the ordinary meaning of ‘interpreter’ is someone who translates orally from one language to another,” … ‘compensation of interpreters’ in [28 U.S.C.] § 1920(6) does not include costs for document translation.” Put even more simply, people who win federal-court lawsuits cannot be reimbursed by the losing party for any of their document translation costs.

via Opinion analysis: “Compensation of interpreters” does not include document translation : SCOTUSblog.

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