Toldjah so: The Virginia Supreme Court has unanimously ruled against Lisa Miller of Winchester, who has been ignoring a duly issued Vermont court order providing her former lesbian partner Janet Jenkins with rights of visitation to the child they had been raising together. Miller’s defiance of the law had been backed by Liberty Counsel, the ironically named pro bono group headed by the dean of Jerry Falwell’s Liberty University School of Law, as well as other conservative religious figures such as Chuck Colson. Despite misreporting to the contrary in some quarters of the conservative press, the case had nothing to do with recognition of the former couple’s Vermont civil union, nor did it eventuate in an award of custody (as distinct from visitation) to Jenkins. (AP/Newport News Daily Press; Ed Brayton and more; our earlier coverage).
Author Archive
“People want to find out what the other person is Googling”
And so the divorce case winds up generating massive demands for hard drive contents and other electronic discovery. Draconian spoliation sanctions, as exemplified in the Morgan Stanley-Perelman and Zubulake-UBS Warburg cases, make a potentially fatal trap for the unwary:
Defense lawyers complain that their clients often are forced to supply voluminous information at great cost with little benefit. And because there is so much more information potentially subject to a discovery order, the chances are greater that a client might violate the order by inadvertently deleting data.
“Does this enhance justice? Not usually,” said Tess Blair, a partner at Morgan, Lewis & Bockius L.L.P., who heads the 1,350-lawyer firm’s electronic-data-discovery unit. “It becomes a weapon in many cases.”
(Chris Mondics, “Ediscovery profoundly changing lawyering”, Philadelphia Inquirer, Jun. 8).
“Liability concerns and high water bills”
They’re why the Weymouth, Mass. housing authority is banning residents from using inflatable kiddie pools at municipal housing. The state housing department sent a memo to town authorities five years ago recommending a ban on pools as well as trampolines and swing sets: “Housing authorities routinely get sued for incidents even when a tenant is the responsible party,” it said. (Jack Encarnacao, “Weymouth bans kiddie pools at public housing”, Quincy Patriot-Ledger, Jun. 7).
“Legal ethics is to real ethics as …”
As pro wrestling is to Olympic wrestling? As legal tender is to genuine tenderness? Help John Steele and his readers (riffing off Sasha Volokh) find the best apothegm (Legal Ethics Forum, Jun. 9).
Franco v. Dow Chemical: special prosecutor for Girardi and Lack
Thomas Girardi, of Girardi & Keese, and Walter Lack, of Engstrom Lipscomb & Lack, are among California’s highest-profile plaintiff’s lawyers, often working closely together on litigation; perhaps their best-known case was the “Erin Brockovich” action against Pacific Gas & Electric, which I covered here and again here (highlight: the chartered Mediterranean cruise to which Girardi and Lack invited the three arbitrators soon after winning their split of $133 million in fees). Now both men are in a spot of bother with the Ninth Circuit, where a special master, senior circuit judge A. Wallace Tashima, has recommended hundreds of thousands of dollars in sanctions against them and where a three-judge panel (Kozinski, Reinhardt, Berzon) has just moved to appoint a special prosecutor to recommend further discipline in the case.
The imbroglio arose from a pesticide toxic tort which resulted in a Nicaraguan court’s $489 million judgment against defendants including Shell Oil, Dow Chemical and Dole Food, which plaintiffs had sought to enforce in this country. Amid mounting evidence that many of the various American and Nicaraguan lawyers involved had not been entirely (as they say) candid with the tribunal on a variety of points, the court has been trying to sort out who knew what when. “In his 65-page report, Tashima said Lack had a personal role in asserting repeatedly that a writ of execution made by the Nicaraguan judge to enforce the judgment in America was corrected to name Dole Food Co. and Shell Chemical Co. Girardi, meanwhile, allegedly allowed the misstatements to continue on his behalf without becoming directly involved.” (Evan Hill, “9th Circuit Taps Special Prosecutor for Toxic-Tort Case”, The Recorder, Jun. 10; latest order and March special master’s report from Judge Tashima, both PDF, via California Appellate Report). We understand that changes to California ethics rules have put a crimp in Girardi and Lack’s former practice of throwing luxurious events for judges, but even aside from that, we don’t think judges Tashima, Kozinski, Reinhardt and Berzon would probably have been making any plans to attend.
June 10 roundup
All-free-speech edition:
- Christiansburg, Va. land developer Roger Woody sues local bloggers and two other critics for more than $10 million for speaking ill of big dirt pile on one of his properties [Roanoke Times, editorial; more on Woody’s dealings]
- Lots of developments on free speech in Canada: trial begins in Vancouver in complaint against Mark Steyn and Maclean’s over book excerpt critical of Islam [his site]; after defending speech-restricting network of human rights tribunals, Conservative government in Ottawa now says it will take another look [Ezra Levant, with much other coverage including favorable nods from Toronto literati]; Alberta tribunal orders conservative pastor to “cease publishing in newspapers, by email, on the radio, in public speeches, or on the Internet, in future, disparaging remarks about gays and homosexuals.” [Levant; Calgary Herald; Gilles Marchildon, Egale.ca] (more, Eugene Volokh)
- Brief filed for Kathleen Seidel in her resistance of abusive subpoena, with assistance of Public Citizen [her site, theirs, and our comment section]; Seidel is among autism bloggers profiled in NY mag [w/pic]; profile of thriving Boston “vaccine injury” law firm” Conway Homer & Chin-Caplan [NLJ; Seidel’s critical comments on that firm]
- Views critical of religion unlawful unless expressed in respectful and non-scoffing way? Lots of precedent for that approach, unfortunately [Volokh on Comstock]
- Score one for fair use: judge denies Yoko Ono preliminary injunction against creationist film’s use of 15 seconds of John Lennon’s “Imagine” in context implicitly criticizing song’s point of view [Hollywood Reporter, WSJ law blog, Timothy Lee/Ars Technica]
June 9 roundup
- Florida trial lawyers have funneled millions to Gov. Charlie Crist and GOP state legislators; now guess why Orlando isn’t going to get commuter rail [Bousquet/St. Petersburg Times; Sentinel]
- What his ex-law firm told the world was “extremely inappropriate personal conduct” was in reality no more than a “brief, consensual kiss” with co-worker, charges attorney in $90 million defamation suit; Kasowitz Benson says it was following zero tolerance policy [American Lawyer]
- SCOTUS, 9-0, Thomas writing, narrows scope for money-laundering charges over hiding unexplained cash — but will that curb forfeiture abuse? [Grits for Breakfast, Greenfield]
- After West Virginia high court refuses to review $405 million royalty dispute jury verdict against Chesapeake Energy and another defendant, company scraps plans to build $30 million headquarters in the state [PoL]
- Even after discounting anti-corporate rhetoric, there does seem to be a story here about aggressive seed patent litigation tactics used by agri-giant Monsanto, a firm known to our readers [Barlett & Steele, Vanity Fair; earlier]
- Medical liability consequences of much-promoted concept of hospital “never events” [Buckeye Surgeon]
- Cellphone rage update: Judge Robert Restaino ousted for jailing 46 people after one of the annoying devices rang out in his Niagara Falls, N.Y. courtroom [Buffalo News, earlier]
Detroit Free Press on Fieger acquittal
Detroit’s liberal newspaper voice, which supports extending campaign finance law, has this to say in an editorial:
…There is no doubt that Southfield attorney Geoffrey Fieger completely subverted [the aims of campaign law] when he essentially laundered through employees of his law firm hefty contributions to the 2004 presidential campaign of John Edwards.
But can you make a federal case out of it? A U.S. District Court jury didn’t think so, refusing Monday to convict Fieger and law partner Vernon (Ven) Johnson of doing anything illegal. So congratulations to Fieger for gaming the system and then beating it.
But that doesn’t make what he did right. …
…the system ought to have some integrity, and the limits established by law ought to be enforced. Fieger got around them by being clever, pleading ignorance, then getting a jury to see it his way. It certainly helped that the local U.S. attorney’s office had been frighteningly aggressive in its pursuit of Fieger, and that he had the cash to hire an attorney who reputedly has never lost a case. Yes, money matters in criminal justice at least as much as it does in politics.
No doubt, Fieger’s acquittal gives a little more mettle to other fat cats who want to skirt the law. It’s a victory for him, but a step back for the political process.
Fieger himself has tried to put out the line that it is only because of some mean old plot against politically active trial lawyers that he was ever prosecuted at all. If the Free Press editorial is any indication, it doesn’t look as he’s getting very far with that line. More here and here.
Further: Scott Greenfield, and Freep reporter Dawson Bell (unless your name is Geoffrey Fieger, don’t try to get away with doing what he did: “It’s still a crime.”). Ted in comments adds: “And let’s not forget the all-too-typical and appalling sight of the defendant partying with the jurors he snookered.” Per the account in the Free Press, “Champagne sat on ice at each table” in the Greektown establishment. “A stocked bar was in the corner.” Earlier on post-trial juror fraternization with winning disputants and their lawyers here, here, etc.
Slain in the Spirit: Tennessee case
Another story in a genre we’ve covered before, namely the lawsuit against a church whose congregants commonly faint or swoon during worship, the grounds being that more or better assigned “catchers” would have helped avert injury. This one was filed by Matthew Lincoln against Lakewind Church in Tennessee (Smoking Gun, Jun. 5; Childs, Jun. 5). Our earlier coverage has included the Michigan woman who successfully sued her Pentecostal church on similar grounds, and an Australian plaintiff who lost.
Rob Lowe nanny lawsuits
The other nanny suing Hollywood figures Rob and Sheryl Lowe “was going to settle with the Lowes but then she too wound up being represented by [attorney Gloria] Allred”. So Laura Boyce now finds herself at the center of big legal and publicity hoopla:
Boyce’s claims don’t target Rob Lowe at all but focus on Sheryl Lowe for such off-putting behavior as walking around naked — in her own home — and making “numerous sexually crude, lascivious and racially derogatory comments,” which led Boyce to quit her job. Sheryl Lowe has denied the allegations.
“The home is a workplace for the people who are working in it — the nannies, the chefs, the drivers,” says Allred. “Celebrity employers do not have special rights. They are not insulated from liability because they are in their home. Celebrities are not above the law. They don’t have license to commit sexual harassment because it’s in their home.”
Lowe has pre-emptively sued Boyce and the other Allred-represented nanny, Jessica Gibson. (Rachel Abramowitz, “Rob Lowe’s privacy, nanny woes”, Los Angeles Times, Jun. 4).