WDNY ESI decision

In Barker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008), Judge Payson held that sufficiently detailed information would be required before requiring party to produce backup tapes.

In this employment case, plaintiff filed a motion to compel production of e-mails. Although the defendants produced some e-mails, plaintiff sought to compel further production. To evaluate the adequacy of the defendants’ search, Judge Payson ordered the parties to submit an affidavit describing the procedures undertaken. The affidavit, however, merely described the additional work required to restore the deleted data from backup tapes. Finding the record of defendants’ search of the requested e-mail from accessible sources incomplete, the court declined to compel production and instead ordered the defendants to identify individuals with knowledge of the steps taken during collection and allowed time for the plaintiff to depose those individuals.

Insurance Archaeology?

Indiana Jones goes in search of that missing Met Life policy? The site was brought to my attention by Rich Bowman of Boston.

Scalia interview on 60 Minutes

Continued at (http://www.cbsnews.com/sections/i_video/main500251.shtml?id=4048752n&channel=/sections/60minutes/videoplayer3415.shtml)

ABL's pet peeve # 13

When opposing counsel asks for a 2d extension to respond to a motion and then, in the letter to the judge, complains that another extension is needed because of the "tremendous" amount of paperwork that was submitted by me. What makes it even more gauling is that this attorney has had more than a month to respond to a routine SJ motion and she is in effect blaming me for what I know is her own lack of diligence. This is the same attorney who once answered her cellphone several times during a deposition without apology (for routine discussions with her secretary).

April Fool's Day Joke

ABL on Enforcing Foreign Judgments

ABL enjoyed writing the following article as a companion piece to an article by Barrister James Normington of Park Court Chambers, which we merged into one article for the Winter edition of NY Litigator. James has also been so kind as to arrange a "mini-pupillage" for a UB Law student this summer.

TCL - volume 4

Building a better brief bank

Ever since ABL was a small boy, he has maintained (and loved like a child) his brief bank. ABL now seeks to revamp the firm brief bank -- and would like to hear from other lawyers at small to mid size firms and their brief bank experiences. E-mails may be made in confidence at jcolby@websterszanyi.com.

ABL is test-driving X1's Professional Client. Anyone have any thoughts about this enterprise search software? Anyone use mini-Google?

UB law alumnus chronicles London fellowship

Lisa Danish, a former student member of the Charles S. Desmond Inn of Court, discusses her Pegasus Fellowship experience. This is a great blog for students interested in spending time in the UK.

Sankofa Charter School to close in June

The SUNY Board of Trustees has voted to not renew the charter for Sankofa Charter School (http://www.sankofacharter.org/). ABL has sat on the Board for over a year. The School was founded by KIPP, a national organization that has had much success starting charter schools across the country, but it ended its relationship with the school last April because the school (led by a KIPP trained principal) did not perform as hoped for. The School has retained a new Board and a new administrative team. The students have improved their scores dramatically over the past 6 months in Math, English, and Social Studies -- but not enough to be allowed to remain open an additional year to see if the trend continues under the new management.

It is too bad really because many of these students will be forced to return to underperforming (i.e., failing) schools that have no accountability.

NYS Ins. Dep't: HMO lacks no-fault subrogee rights

The NYS Insurance Department recently issued an opinion letter dated January 28, 2008 indicating that, where an insured does not appeal a no-fault insurer's denial of benefits, an HMO as subrogee cannot proceed against the no-fault insurer under a claim of equitable subrogation. The opinion notes, however, that it was possible that the HMO may have "performed services that would bring it within the definition of a 'health service provider' under Insurance Law section 5102(a)(1)." Nonetheless, the Insurance Department noted that a recent decision (Health Ins. Plan of Greater New York v. Allstate Ins. Co., 2007 N.Y. Slip Op. 33925(U) (N.Y. Sup. Nov. 20, 2007)) held that an HMO was not a "provider of health care services" under 11 NYCRR section 65-3.11 and that an HMO has no right of equitable subrogation against an automobile insurer (but that it might have such a cause of action against the third-party tortfeasor). The Insurance Department concluded by noting that 11 NYCRR section 52.26 provides a no-fault exclusion that permits an HMO to "opt to exclude [no-fault] benefits from coverage" by contract.

Graham v. Dunkley is reversed

The 2d Department finally overruled this decision, which declared the Transportation Equity Act of 2005 ("TTEA") (which preempted state laws holding automobile leasing companies liable for torts involving the leased vehicle) to be an unconstitutional exercise of Congressional authority under the Commerce Clause. Now that Graham is finito, NYVTL section 388 is, without question, preempted. Another blow to advocates of the "power" of the Tenth Amendment.

http://abuffalolawyer.blogspot.com/2007/10/graham-v-redux-is-lone-wolf.html

http://abuffalolawyer.blogspot.com/2006/10/caveat-lessor-vicarious-liability.html

NDNY jury finds for automobile manufacturer

Webster Szanyi LLP recently obtained a defense verdict in federal court for a products liability case involving an automobile manufacturer. The verdict came after more than two weeks of trial, which saw NYSP personnel changing their testimony, surprise witnesses (plaintiffs' counsel identified before trial more than 40 witnesses that were not disclosed in discovery), and contested causation and accident reconstruction issues. None of which mattered in the end because the product was found to be not defective and the manufacturer not negligent. Lead counsel Kevin Szanyi eviscerated the opposing expert, who claimed to be an expert in "any machine," including cookie making machines, meat slicers, cars, boats, lighting conditions (for slip-n-fall cases), tanks, armored cars, etc.

ABL calling Kevin Hein

Dear Kevin (and other prospective law students looking for advice):

Please send me your e-mail address so that I may respond to your comment. Generally, my advice is to go to the "best" law school that accepts you. Of course, there are many factors to consider in making such a decision.

Best,

ABL

PS my e-mail address is at my firm's website - jcolby@websterszanyi.com

NY v. Lopez - USSC reverses 2d Cir.

The Court held that New York's system of choosing party nominees for State Supreme Court does not violate the 1st Amendment. Specificallythe court held: "Because a political party has a First Amendment right to limit itsmembership as it wishes, and to choose a candidate-selection processthat will in its view produce the nominee who best represents itspolitical platform, a State's power to prescribe party use ofprimaries or conventions to select nominees for the general electionis not without limits. California Democratic Party v. Jones, 530 U.S.567, 577. However, respondents, who claim their own associationalright to join and have influence in the party, are in no position torely on the right that the First Amendment confers on politicalparties."John Paul Stevens issued a concurring opinion and quoted JusticeMarshall stating that, "The Constitution does not prohibitlegislatures from enacting stupid laws."

This update was courtesy of the Academy of Trial Lawyers (because ABL is still off litigatin').

Judge Elfvin's retirement dinner

Nearly thirty of Judge Elfvin's former and current law clerks attended a retirement party for Judge Elfvin at the Saturn Club today. Laurie Carra planned a flawless event that paid tribute to ABL's favorite jurist.

The Aud: Hockey Night in Canada special

Retail genomics is now SPAM!

Beating a dead horse

Gone litigatin' -- see you in a few weeks (I hope)

Meanwhile, I have posted a link to Above the Law's pdf of a motion for a continuation filed in a Louisiana court seeking to delay a trial that conflicts with the Ohio State/LSU game -- which was brought to my attention by Prescott Jones from the UB Law Review.

ABL cited by Prof. Benjamin

Thanks to "Scranton Jodi" for bringing this to my attention.

Production of cell phone records

Here is a link to a decision that directed in camera inspection of a defendant's cell phone records because she was seen with "something in her hand that looked like a cell phone" by a passerby shortly before she was involved in an accident. ABL has obtained cell phone records and MySpace documents -- but eagerly awaits the time that something relevant will be found on YouTube!

you better be good, you better watch out . .

Panel gives judge a ringing rebuke Story Highlights Judge sent 46 people to jail after cell phone rang in courtroom New York legal commission removes him from office Through his attorney, judge apologizes for overreacting From Janine Brady CNN NEW YORK (CNN) -- A judge in Niagara Falls, New York, has apologized for jailing nearly four dozen people over a ringing mobile phone in his courtroom, his attorney said Wednesday. In removing City Court Judge Robert Restaino from office Tuesday, the state Commission on Judicial Conduct called his decision to lock up 46 people after no one claimed ownership of the phone "a gross deviation from the proper role of a judge." But Restaino's lawyer, Terrence Connors, said Wednesday the judge "profoundly apologizes for his actions" during the March 2005 hearing and will appeal the panel's ruling. "It is our hope that the Court of Appeals will measure those few hours against a decade of exemplary conduct on the bench," Connors said in a written statement. But the commission found Restaino's conduct so egregious that his 11 years of service and clean record did not matter. "We conclude that respondent's behavior ... warrants the sanction of removal, notwithstanding his previously unblemished record on the bench and the testimony as to his character and reputation," the panel ruled. According to the commission report, Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device. About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. When no one admitted to owning the phone, Restaino heard the remaining cases and then recalled the cases of defendants who had already been released to question them about the phone, according to the commission report. After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours. According to the report, Restaino decided to release defendants only after learning reporters were inquiring about their incarceration.

ex parte interviews -- talk to 'em if you got 'em

The Court of Appeals recently held, in Arons v. Jutkowitz, 2007 WL 4163865 (Nov. 27, 2007), that an attorney may speak with an adverse party's treating physician when the adverse party has placed his or her medical condition in controversy. Arons resolved several appeals including one from the Fourth Department, Kish v. Graham, 40 A.D.3d 118 (4th Dep't 2007) (precluding attorneys from conducting ex parte interviews of non-party treating physician(s) of an adverse party).

Under Arons, to speak with a non-party treating physician (or other health care professional), an attorney "must simply reveal the client's identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in scope to the particular medical condition at issue in the litigation." The Arons Court assumed "'that attorneys would make their identity and interest known to interviewees and comport themselves ethically.'" Id. (quoting Niesig v. Team I, 76 N.Y.2d 363, 376 (1990)).

Arons held that a plaintiff who puts medical condition at issue must sign HIPAA-compliant authorizations. Nevertheless, neither a signed HIPAA-compliant authorization nor a HIPAA court order requires "a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place." Consequently, physicians may speak with counsel if they chose to do so.

Arons also held that an interviewing attorney need not disclose "copies of all written statements and notations obtained from the physician during the private interviews, any audio or video recordings or transcripts, and interview memoranda or notes (excluding the attorneys' observations, impressions or analyses)."

Surcharge Bd. of Appeals of Division of Insurance

Terriers Win @ MSG!

Speaking of Christmas gifts. . .

I always wanted a replica 1942 Willys Jeep.

A less ambitious gift is "Western New York 101: The 101 Greatest Moments in Buffalo History." For more information and an overview of the book, please visit http://www.buffalobooks.com/wny101.html.

Decoding your DNA - a unique Christmas gift

Retail genomics is amazing!

Happy Thanksgiving

An apropos sentiment for today, courtesy of MICKEY H. OSTERREICHER's review of the Buffalo News:

“Gratitude unlocks the fullness of life. It turns what we have into enough, and more. It turns denial into acceptance, chaos into order, confusion into clarity. It can turn a meal into a feast, a house into a home, a stranger into a friend. It turns problems into gifts, failures into success, the unexpected into perfect timing and mistakes into important events. Gratitude makes sense of our past, brings peace for today and creates a vision for tomorrow.”

— Melodie Beattie of the New York Times

fun with deposiitons #356

Q: Okay, and I'm not trying to be a picky lawyer but I am a picky lawyer. When you said "mainly", was it just on the phone?

BUSL rocks

Speaking of BUSL, a classmate of mine is renting his Breckenridge, CO condo by the slopes. Tell them ABL sent you!

www.vrbo.com/113311

Desmond meeting on 12/05/07

The Desmond Inn of Court meeting is on 12/5 at 12:00 in the Ceremonial Courtroom. Details to follow.

COA's Harris decision is not retroactive

In Wilk v. Genesee & Wyoming R.R., the Fourth Department held today that CPLR 205(a) tolling does not apply where a plaintiff commences a pre-action discovery proceeding and, without obtaining a new index number, commences suit. The first suit was dismissed under then-existing 4th Dep't precedent on the ground that the failure to obtain an index number constituted a non-waivable subject matter jurisdiction defect. Plaintiff never appealed. After the time to appeal passed, the Court of Appeals issued its decision in Harris v. Niagara Falls Bd. of Educ., 6 NY3d 155, 158(2006), which held that the failure to obtain a new index number is a waivable defect. Plaintiff commenced a 2d action. Defendants moved to dismiss, which was denied. ABL and his colleagues argued on appeal that the 2d action was not properly "commenced" within the meaning of CPLR 205(a). The Fourth Department agreed. It further held that Harris was improperly applied retroactively to the dismissal in the first action, noting that "[r]etroactivity analysis does not permit application of new law to cases already resolved" (quoting Cutler v. Travelers' Ins. Co., 159 AD2d 1014, 1015).

The Complete Lawyer

It's like Oprah for lawyers.

On a related note, ABL just attended a great workshop for teaching children to read led by Patty George of Canisius College. You can find many great materials for teaching children to read at www.carlscorner.us.

Graham v. Dunkley is a lone wolf

In Traitouros v. Goldstein et al., Justice Anthony Parga of Nassau County declined to follow Graham v. Dunkley, 2006 WL 2596327 (Sup. Ct. Queens County), which held that 49 USC 30106 was an unconstitutional exercise of the Commerce Clause. Traitouros followed Kuryla v. Halabi, 39 AD3d 485 (2d Dept., 2007) (http://www.nycourts.gov/reporter/3dseries/2007/2007_02895.htm) in holding that the Graves Amendment (preempting VTL section 388) is constitutional -- and dismissing a claim against a lessor based on vicarious liability. Traitouros was decided October 23, 2007.

Thank you to Robert M. Conti of the Bee Ready firm (http://www.beereadylaw.com/) for bringing this decision to my attention.

Clarence Darrow returned to Buffalo

The opening meeting of the Charles S. Desmond Inn of Court saw a return of "Clarence Darrow: A Search for Justice." The two hour presentation in the ceremonial courtroom was an energy-filled and well-researched re-enactment of some of Darrow's infamous closings and narrative about his life and career. "I laughed. I cried. It was better than Cats!"

Pictured here with Clarence and ABL are several Desmond Officers, Mary Wydish (President of WNYTLA), Frances M. Letro, and Robert Brucato (Counsel Press) -- all of whom generously co-sponsored this event.

Federalist Society hosted innaugural luncheon

Professor John Yoo of Boalt Hall was the inaugural speaker for the Buffalo Chapter of the Federalist Society. He discussed the Schlesinger anecdotal study of Presidential greatness and a more recent survey of college professors on the same topic. The "top ten" lists for both studies were remarkably consistent, with the exception of the recent study, which listed Reagan as no. 8. The top three are Washington, Lincoln, and FDR. Other top ten Presidents are Truman, Jefferson, and Jackson. Professor Yoo has written that "great" Presidents are often those Presidents who take an aggressive or expansive view of Presidential power (with the example of the counterthesis being Nixon). Jefferson made the Louisiana purchase despite a lack of Constitutional authority to do so. Jackson ignored the Supreme Court's ruling in McCulloch v. Maryland to veto the national bank. The event was well attended and the FS looks forward to promoting debate on legal issues. Professor Yoo later gave the 25th Frank J. Raichle presentation, which has included a number of Supreme Court Justices including Justices Rehnquist (as Chief), Scalia, O'Connor, White, and Ginsburg while she was on the DC Cir.

BOTW - Wait A Second

Too much litgation - ridiculous!

"Judges and lawyers often complain that the courts are inundated with a flood of litigation, but the fact remains that litigation is as American as apple pie." von Bulow by Auersperg v. von Bulow, 657 F.Supp. 1134, 1143 (S.D.N.Y. 1987).

BOTW - Tillers on Evidence