What Are Interrogatories, Requests to Produce, and Admissions?

What Are Interrogatories, Requests to Produce, and Admissions?

In civil lawsuits, the parties obtain and exchange information in a process called “discovery”.  This is very different from criminal cases where the police investigate and the prosecutor brings a case based on that evidence and has to disclose it to the defense.  In civil cases, the proponent of an allegation has the obligation to devleop the evidence to prove that allegation and obtains it through the process of discovery.

Discovery in civil disputes takes on two basic forms; what lawyers call “paper discovery”, and the “other stuff”.  Paper discovery actually isn’t paper anymore, but it is the series of requests provided for by our Florida procedural rules that includes interrogatories, requests to produce, and requests for admissions.  The “other stuff” is discovery aside from these requests, such as depositions and inspections of property or equipment.

Interrogatories

Interrogatories are only exchanged between the actual parties in a lawsuit, i.e. plaintiff and defendant.  They essentially are just written questions to the other.  They are limited in number, but Judges usually allow more if there is good reason.  A party’s lawyer will normally draft the answers with the party and they are sworn to under oath.

Requests to Produce

Requests to produce ask for documents or categories of documents, including electronic documents and data.  In addition to being directed at the other party in a suit, in a slightly different form, they can also be used to non-parties so they don’t have to appear at a deposition just to deliver documents.  Unlike interrogatories, these are not limited, but your lawyer will first assess whether there are objections to the requests and what should be produced.  Because these are regularly used in lawsuits, this is why parties can not now just delete data or throw away computers or devices when they are served with a lawsuit or litigation hold notice.

Requests for Admissions

Requests for admissions, like interrogatories, only go between the parties.  They ask a party to admit or deny some specific fact so it doesn’t have to be proven later.  Again, these are to be answered with your attorney as they have far-reaching implications in a case.  Admitting a fact admits it for all purposes, but wrongfully denying a fact carries consequences as well.  Therefore, the best person to assess these requests with you is obviously your attorney.

Timing of Discovery

Sometimes these discovery requests will come with the lawsuit.  In such scenario, you want to be sure to provide those to your attorney and let him or her know that you received those with the suit.  For certain requests, admissions for example, failure to timely respond can actually admit the requests so you don’t want to leave your attorney in the dark and think those requests don’t matter.

There is no right or wrong time to employ these discovery requests either.  Sometimes they are done at the beginning of the suit, sometimes toward the end, sometimes they are used several times in different phases of discovery and sometimes they are even coupled with other discovery mechanisms like depositions.

The Takeaway

The takeaway is that parties in a civil lawsuit use discovery to gather evidence to prove their case and the Florida Rules of Civil Procedure dictate what discovery mechanisms are available.  Therefore, someone who intimately knows those Rules should be in your corner drafting and responding to discovery requests.  Going it along is not a good idea and you know what they say about those who represent themselves. . .

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.thepalmbeachbusinesslawyer.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments and also teaches Judges, lawyers, and paralegals how to perform e-discovery.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at thepalmbeachbusinesslawyer.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905

What To Do If You Get A Litigation Hold Notice?

Run !  Kidding.  First thing you should do is contact counsel.  A litigation hold notice is something new in Florida.  It basically says, hey, I might sue you so don’t press that delete button on your computer.  The notice can’t say keep everything indefinitely; it has to be useful and as specific as is reasonably possible.  The purpose is to put people and businesses on notice that data, which is very easy to delete or destroy, might be needed in a dispute.  The downside to ignoring such notice can be very severe.

Litigation holds developed in the past decade or so in Federal practice as more businesses transitioned to electronic data from paper.  Because electronic data is capable of destruction or deletion, the legal industry developed a response that fairly placed parties on notice to keep certain data.  That, of course, doesn’t prevent the recipient of the notice from asking the provider to pay for the storage or to even be more specific in terms of what is to be kept.

By their nature, lawsuits are adversarial processes, but in the world of electronic discovery or “e-discovery” as it has come to be known, professional cooperation among lawyers is mandatory.  Thus, responding to a notice and implimenting and managing a litigation hold is best left to qualified and experienced counsel who can navigate your business through the hazards on the road of e-discovery.

But, what happens if you disregard a litigation hold notice or don’t properly impliment a hold?  The other side screams spoliation as it is called and the Judge has to hold a hearing or even series of hearings to evaluate whether spoliation actually occurred, the impact of it, and an appropriate sanction as a response.  Sanctions for intentional spoliation are naturally more severe that those for inadvertent destruction.  Sanctions are not limited and can range from adverse instructions to a jury telling them at the beginning of the case what one party did, to monetary punishment, to making the wrongdoer pay for recovery of the data, to restricting the wrongdoer’s ability to argue and put on evidence, to defaulting the offending party in certain circumstances.  Basically, failure to act on a litigation hold can result in lots of costs and fees and some form of punishment that can all be avoided by speaking to counsel early in the process to assess the notice and define responsive actions.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery in CLE courses.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com     Tel: (561) 316-7905.

What Are Your Document and Data Preservation Obligations?

Our world is becoming increasingly digital.  Businesses are keeping more and more information in electronic format, which highlights the question of what must a business operating in Florida keep and what can it delete in the context of a civil lawsuit.

The simple answer of keep everything may not be practical or efficient.  Sure, storage media is cheap, but storing everything also means someone at a law firm has to look through it, which can translate in enormous electronic discovery costs in litigation; we’ll get to that in a minute.

Not long ago, Florida adopted procedural rules in civil cases (contract suits, car accidents, divorces, etc.) that were modeled largely on existing Federal Rules.  Our Florida Rules require that parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever is earlier.  So, for example, if your business isn’t suing or being sued, you can freely clean out your hard drive, but you might want to consult with counsel first or archive data just to be sure.  You can still delete data if you are involved in a suit, just not data relevant to that dispute.  If you do, bad things can happen called sanctions for spoliation of evidence.

So then, what’s the easy solution? Have a data management plan and preservation policy and follow it.  If you do, you are in the safe harbor of the Florida Rules.  What do you put in that Plan?  That’s something a Board Certified expert in business litigation with experience with electronic discovery should craft for you.

Now, what is electronic discovery you asked? It is the process of obtaining and processing relevant data by and between parties in a civil lawsuit.  More simply, it’s getting your e-mails and stuff in a lawsuit.  It takes the old process lawyers used of gathering all the documents and exchanging them in a case and brings it into the 21st Century.  It recognizes that businesses and people have a lot of data and it makes efficient use of technology to process that data.  But, someone still has to look through a certain amount of that data and that’s what increases your costs.

In e-discovery as it is called, there are two large costs; the software and the lawyers who use it.  The software cost depends on the vendor and there are about a thousand of them.  Some charge for upload of data and for use.  So, the more data you have to upload and store, the more expensive it is and that’s why storing everything isn’t always the best answer.  The attorneys’ fees naturally depend on the billing arrangement with the law firm, but at the end of the day, someone has to look through some part of that data.  So, the less data there is, the less time it takes, and the less it costs.  Getting the picture?

So, in sum, storing all data for a business isn’t necessarily the best solution as doing so may inadvertently cause future e-discovery expenses to balloon in any lawsuit.  In Florida’s State Courts, businesses now have a legal obligation to preserve electronic data when demanded (with limits) or when sued, whichever comes first.  The intelligent reaction for any business or business owner is to have a proper data management plan and preservation policy for the business in place now to reduce e-discovery costs and exposure to liability later.  For that, look to one of the 240 Board Certified business litigation experts in Florida who can guide you through this developing area of e-discovery.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery for Everything e-Discovery, LLC eveythinge-discovery.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

So Your Business Is Moving – What Do You Need To Do?

First off, congratulations.  A move or change is usually positive or results in something positive in business.  So you, the business owner, have decided to change locations or expand to a different one.  Whether your business is sales or service related, you still want to consult with your business lawyer for things like discussing liabilities of transport, storage of assets, and a review of your new lease, preferably before you sign it.

A lease is obviously one of the significant documents that any business owner will sign.  A good time to have counsel review that new, proposed lease is when you are taking an inventory of physical property and exploring your options for transporting your business assets to the new location.  In other words, early in the process and before you move in.

But why?  Why not just sign it, move in, and deal with it later?  That leasing agent looked trustworthy enough . . . what could go wrong, right?!  As the owner of the business, large or small, you have a legal and fiduciary duty to act in and for the best interest of that business.  However, even beyond that, it is just prudent and smart business to avoid problems later by confirming or negotiating issues now.

Not all commercial leases are created equal.  I’ve seen leases generated by shopping center owners that are large nation-wide companies that use the same lease in all fifty States.  Guess what, Florida law is different than some of those, therefore, what is accepted there may be illegal here, like self-help.  One of the biggest issues in Florida is HVAC.  A business without air conditioning can quickly find itself out of business.  Who is responsible for the HVAC at your business location and what does that new lease say about it?

Recently, a client of mine was looking at new commercial space.  The lease made the HVAC the tenant’s responsibility.  I recommended that my client have the HVAC professionally examined and low and behold we find out it is almost 20 years old, hasn’t been maintained, and probably has less than a year’s life left on it.  A new business like that can ill afford a $15,000 or more bill to replace the HVAC in year one; now my client can move in worry free with a new HVAC system from the landlord and even agree to take on the responsibility of maintaining it because the cost of so doing for a new system is very low.  Problem avoided, less to worry about, money saved, and small legal fee expense of business well spent as opposed to larger expenses later.

In sum, the best time to consult with your business lawyer is before you execute any move and lease.  Each situation is unique, but the mind of the business lawyer looks at aspects that the business owner may not consider.  The small expense of the consultation to the business will be worth the peace of mind and protection later.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida Super Lawyers for 2014.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions and is a member of the Association of Certified E-Discovery Specialists.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

Or visit us online at http://davidsteinfeld.com

Discovery? What am I, Columbus?!

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My lawyer in my civil lawsuit keeps talking about discovery, but I’m embarrassed to ask what that is.  In criminal cases, I know that the police investigate the crime, the prosecutor charges the defendant, and the trial decides the guilt or innocence.  But what about a civil lawsuit?

In a civil case, it’s the opposite from criminal; the parties have to gather their own evidence through a structured process called “discovery”.  A party files the lawsuit based on a sometimes limited, but good faith belief of the other side’s actions and then undergoes a structured process called discovery to gather the evidence before trial.  The structure is contained in the rules of civil procedure and impacted by the rules of evidence.  Of course, this is a gross oversimplification of the process, but you get the idea.

In civil disputes, each party has the ability in the discovery process to ask the other side for documents and information.  Documents are obtained through Requests to Produce and nowadays can also include electronic records, like e-mails and social media posts.  Other information can be gathered through written questions called Interrogatories or orally through a deposition or both.  Parties can also verify certain facts by asking the other side to admit them in Requests for Admissions.

Sometimes, however, parties outside the lawsuit hold key information.  Discovery may also be obtained from those third-parties or non-parties by way of a deposition or document request without deposition.  But, Interrogatories and Requests for Admissions may only be directed to another party in the lawsuit.  We refer to those involved in a civil suit as a “party” because they can be individuals or business entities.

Discovery takes time to complete because large blocks of time are built into our Florida Rules of Civil Procedure.  For example, after sending a request to another party, you have to wait at least 30 days for a response and sometimes longer depending on the circumstances.  Discovery requests can also sometimes require court action or uncover and lead to other information and evidence that is helpful to claims or yields and supports new claims.  Oftentimes, this is why lawsuits take so long, but that is not always a bad thing because it allows parties to gain some perspective over the dispute as time goes by.

In sum, it is best for any party to get over the embarrassment of not knowing what discovery is and inquire of their attorney as to the purpose and plan of each action in discovery, if the attorney hasn’t already initiated that discussion.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO,  named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network, and was named to the 2014 Florida Super Lawyers List.

Additionally, Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation, the Florida Supreme Court Committee on Business and Contract Jury Instructions, and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.  In 2014, Mr. Steinfeld was made a full Professor of Law at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://davidsteinfeld.com.

WHAT EXACTLY IS MEDIATION?

WHAT EXACTLY IS MEDIATION?

This question comes up often because parties in a civil lawsuit in Florida must mediate before they can go to trial, generally speaking.  Mediation is really nothing more than the parties, that is plaintiff and defendant, getting together with their lawyers and a certified mediator, to put their proverbial cards on the table and see if there is another way to resolve their differences.  Mediation is not anyone deciding who is right or who is wrong; the mediator isn’t there to judge and the whole event is confidential, with some limited exceptions.

HOW DOES IT WORK

So how does it work you ask?  Usually one side suggests mediation if it is before the case has been noticed for trial.  If it is noticed, then the Court mandates mediation within a certain time.  The lawyers agree on a mediator, location, and a time and each lawyer has the chance to send a confidential mediation summary to the mediator to give him or her a bird’s eye view of the case as that side sees it.  Unless told to do so, the mediator doesn’t share this summary with the other side.

At the mediation, the parties start together with the mediator, usually in a conference room. The mediator explains that the process is confidential, that he or she doesn’t decide the case, and listens to both sides as an objective, yet skilled observer trying to help the parties meet somewhere in the middle.  Each side then presents their view of the dispute, ordinarily through their lawyers, but the parties themselves can speak and sometimes, depending on the case, it is helpful to get a few things off one’s chest.  After that, the parties go to separate rooms with their attorneys and the mediator meets privately with them.

What the mediator does in speaking privately with each side is try to get that side to see different views of the dispute and to determine where their limits are for settlement.  Different mediators have different styles and your lawyer tries to select or suggest the person that he or she feels is most appropriate for the dispute.  Each side generally pays the mediator in equal shares at the end of the mediation, regardless of the outcome.  Mediators bill by the hour and the parties agree to the rate before the mediation.

WHEN DO YOU MEDIATE

When then do you mediate?  Simple answer – anytime you want and as many times as you want.  Some disputes lend themselves to early mediations; some require more development of the evidence before any meaningful settlement is possible.  The question of when to mediate is a decision to make with your attorney, but unless the Court lets you off the hook, whether to mediate is not normally an option.  The reason why most Judges won’t waive mediation where none has ever occurred is because they know that even mediations that don’t result in a settlement can still set the groundwork for an amicable resolution later.

WHAT IS THE PURPOSE OF MEDIATION

The purpose of mediation is not just to generate a settlement, but to give the parties a chance to explore options that the Court can’t offer and to take control of the outcome of the dispute. Courts really just award money as damages or sometimes property, depending on the case.  However, the parties might accept a swap of assets or really just want a non-compete or some other agreement that means more than money and that a Court can’t usually award on its own.

It is important to recognize that if parties don’t settle their lawsuits, judges or juries make the decisions for them.  If the parties can construct a settlement through mediation that each can live with, they take control of the outcome.

While there are many factors to consider in any mediation, such as the cost of the lawsuit and the evidence, one thing mediation is not is a trial; the mediator doesn’t make any decision.  That right always resides with each party at mediation.

ABOUT THE AUTHOR

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida SuperLawyers for 2014.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  In 2014, the Florida Supreme Court appointed him to its Committee for Standard Jury Instructions in business and contract cases.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.

Mr. Steinfeld is a full Professor at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://www.davidsteinfeld.com.

Please visit http://www.davidsteinfeld.com

 

Oh no, I’m getting deposed !

First thing – don’t panic.  A deposition is a method in a civil lawsuit in Florida by which a party can obtain information by asking questions directly to the deponent.  They are generally transcribed by a court reporter and can also be videotaped.  Simply put, they are like a Q and A session, but can sometimes be a critical junction in a lawsuit and can make or break the strategy of a party.

Please Note:  This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about this topic.  This article is written on the perspective of a business lawsuit in a Florida State Court.  With litigation in particular, each matter is factually distinct, therefore, it is best to consult with your attorney as to the particular circumstances of your case.

In Florida, it is possible to depose someone before a lawsuit is filed, but such instances are not common and most depositions occur during the discovery phase of a lawsuit.  The discovery phase is normally after the pleadings or documents forming the suit are filed with the Court, but before a trial.

Procedurally, the participants coordinate the time and date for the deposition and provide written notice, which, in State Court unlike Federal Court, is filed with the Clerk of Court.  If the person or corporate representative being deposed is not a party to the lawsuit, then the notice is in the form of a subpoena and is served by a process server unless such service is waived.  Thus, because our Courts oversee the process to a certain extent, failure to appear or participate can result in sanctions unless there is a proper basis to do so.

If you are a represented party to a lawsuit, your attorney will discuss where and when the deposition will occur, who will be there, and what you can expect.  The most important thing your attorney will tell you is always tell the truth.  When you begin a deposition, you will be placed under oath to tell the truth.  Not only it is improper and illegal to intentionally violate that oath, but it will seriously damage or destroy your credibility and claims if you don’t tell the truth.

Your attorney will also discuss whether you should review any documents before the deposition and whether you should bring any materials to the deposition.  Some other important Dos and Don’ts in preparing for a deposition are:

  1. Don’t volunteer information particularly where no question ahs been asked
  2. Don’t divulge what you and your attorney have discussed unless your agree in advance with your attorney to do so
  3. Do listen to the question and consider your answer – it’s ok to take your time
  4. Do inform the attorney if you don’t understand the question and ask the attorney to rephrase it
  5. Don’t guess – it is acceptable to say “I don’t know”
  6. Do always tell the truth
  7. Don’t try to answer questions about documents without seeing the documents
  8. Do review any document provided to you fully before answering a question about the document
  9. Do inform your attorney if you need to take a break or if you are uncomfortable or unsure of anything
  10. Do be sure to answer verbally to make it easier on the Court Reporter – nods of the head don’t translate well in a transcript and “uh-huh” can mean a variety of things
  11. Do dress appropriately if the deposition will be videotaped (you’ll know in advance)
  12. Don’t try to outsmart the other lawyer or to play lawyer
  13. Don’t accept the other attorney’s statements, representations, “facts” or opinions unless they are absolutely and unquestionably accurate

David Steinfeld, Esq.

Florida Bar Board Certified Business Litigation Lawyer

Martindale-Hubbell AV-Preeminent (Highest) Peer Review Rated

Contact me at:             dave@davidsteinfeld.com

 

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Mediating e-Discovery Disputes

By David Steinfeld, Esq. and Edmund J. Sikorski, Jr., J.D.

Discovery of Electronically Stored Information (ESI) is the newest and developing area of practice in civil litigation.  E-discovery began in complex commercial disputes, but is now appearing in a multitude of cases and will continue to develop and permeate all manner of civil cases.

Mediation is a useful and efficient method to deal with e-discovery issues.  It can afford the parties control over the process and reduce their costs. In any mediation, the Worst Alternative to a Negotiated Agreement (WANTNA) is one where a Judge “splits the baby”.  This may have a greater impact in e-discovery because it can propel a case on a course that the parties did not intend or desire.  In e-discovery mediation, the parties take control over the outcome of the process, what is being requested, how it is produced, and when.

The Commitee comment to Florida’s new and amended Rule 1.280 provides, “The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a Rule 1.200 or Rule 1.201 case management conference.”  This guidance strongly suggests that parties would be wise to consider mediation in the early stages of the e-discovery process in appropraite cases to avoid unnecessary litigation and use of limited judicial resources.

Unlike ordinary mediation that is geared toward resolving the entire dispute, e-discovery mediation is limited to a singular issue within the dispute that must be resolved before a case can advance to a final mediation or trial.  E-discovery mediation is a cost-effective mechanism to manage the situation.  The parties’ good faith attempts to resolve the issue may even shield them from the imposition of sanctions.

Some of the advantages of e-discovery mediation are:

  • Identification and remedying of miscommunications and misunderstandings
  • Designing workable solutions for issues of ESI sources, presentation, and form of production
  • Definition of parameters and confidentiality issues
  • Determinations of relevancy
  • Development of timelines and sequences for production
  • Avoidance of spoliation
  • Allocation of costs

The goal of e-discovery mediation is for parties to conclude with an agreed e-discovery plan over which they have and will maintain control.  This control, in turn, results in a product that reduces costs and allows for the efficient adjudication of any civil dispute.

From a practitioner’s perspective, e-discovery mediation, just like e-discovery itself, may not be necessary or appropriate in every case, however, the costs of e-discovery and ESI experts, whether borne by a plaintiff or defendant, can be substantial and can even rise to the level of precluding a party from having the merits of its claim reached.  Thus, where appropriate, e-discovery mediation can be an extremely beneficial mechanism for all the parties to a dispute and can form the foundation necessary for parties to begin the process of working together to ultimately resolve their dispute in a manner and form that is acceptable to them.

Don’t overlook the finances when starting, buying, or selling a Florida busines

Business is money and business is strategy.  Like it or not, these are inescapable truths.

This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about the important topic of maintaining electronic data that is impacting on all businesses operating in Florida.

At some point you have been involved in business.  Either you worked in one, owned it, or know someone who did.  Did you work for free?  Probably not.  Did you direct others to act, wonder why you were doing some of the things you were asked to do, or think about what could improve the business.  Of course you did.  Even if it was something simple like complaining about the lack of a vending machine in the workplace, believe it or not, you were addressing workplace moral and strategizing methods to improve it.

So, what do you need to do to protect your investment when starting, buying, or selling a business in Florida?  Besides a well-prepared infrastructure prepared by a competent business attorney that you trust, you need to consult with two different kinds of people in the financial sector.

When you start or buy a business, within your legal infrastructure you should have a mechanism that will buy you out should some tragedy befall you.  Whether it is contained within agreements you must have, such as a Shareholder or Operating Agreements, or is a stand along document, such as a “buy-sell” agreement, you can provide for the funding for the purchase of your interest and that of others through financing vehicles that are generally available. It depends on your circumstances and objectives, but it is not hard to envision a situation where you are a partner in a business and crippled or killed in an accident.  In that situation, it would benefit you, your loved ones, and the business if you interest was valued at the amount of something like an insurance policy, for example.  This is a very simplified example, but you get the idea.  The financial professionals you want to speak with at this stage of the life of the business are those that have knowledge of and access to products that can achieve these goals.steinfeld bar association

Conversely, when you sell a business, you want a different kind of financial industry professional who can aid you in understanding what to do with the proceeds from the sale.  A competent business attorney can craft the documents necessary for the sale, advise you on some of the potential issues than can arise from the transaction, and even reduce the likelihood of post-sale disputes with properly drafted documents, but such person can’t usually advise you on what to do with the money.  For that you want to consult with financial professionals that invest money, advise on investing independent of the actual investing, and are capable of running scenarios and comparing different options.  The information provided by these professionals can help shape the terms of the transaction and may even reduce the chances of post-sale defaults through the analysis.

In sum, whether you are starting, buying, selling a business in Florida or know someone who is, be sure to discuss with your business attorney the options available with regard to qualified financial consultants for those situations.  The Law Office of David Steinfeld, like many attorneys that specialize in business litigation, have established relationships with such financial professionals in order to guide clients and give them options of these professionals from which to choose.  In starting, buying, selling a business in Florida, the financial planning is equally as important as the legal planning and should not be overlooked.

For more information please visit http://www.davidsteinfeld.com

Is Your Cloud Data Really Secure?

I read an interesting article not long ago by Mr. Michael Geist, a well-respected Canadian law professor, that got me thinking whether data stored in the cloud by Florida businesses is really secure.  The article and Professor Geist’s impressive bio can be found at michaelgeist.ca/content/view/6755/125.

At an increasing pace, businesses around the globe are transitioning their data to cloud storage for a variety of reasons.  On September 1, 2012, the Florida legislature enacted a set of comprehensive electronic discovery rules for civil cases that now allow parties in lawsuits to obtain electronically stored information (ESI) from other parties and even non-parties.  Businesses can and should be taking steps now to ensure they can avail themselves of the safe harbor provisions of those Rules with data management and litigation hold plans prepared by and with their business counsel.  The Law Office of David Steinfeld has several videos and articles on these plans on its website at http://www.davidsteinfeld.com for your reference.

That brings us to the question of whether data is secure in the cloud and why this is important for every business to consider when selecting a cloud storage provider.  In addition to protecting proprietary data and trade secrets of the business and ensuring access at all times, you should consider where the data is stored and what the policies of the storage provider are with regard to allowing third-party access.

Professor Geist’s article addressed the US Government’s efforts to obtain the cloud data of a company under investigation in a criminal case, but in civil discovery the standard that Judges apply is whether a business has possession, custody or control over certain data.  While a business may not have physical possession or actual custody over ESI as it once did when paper documents were in a file cabinet at the business’s office, the choice to store ESI on servers hosted by another will most likely lead to a determination by a Court that the business at least has control over the data requiring production of the data if all other requisite elements are met.

Therefore, it is important for any business storing data in the cloud or migrating data to the cloud to consider the policies and procedures of the cloud provider and to understand when that provider may refuse access or allow third-party access to the business’s data.