Tuesday, August 13, 2013

The Duty to Preserve Evidence in a Civil Case

I received the following e-mail from a very experienced and knowledgeable personal injury trial attorney. I think it bears repeating and I think Randall Ogg, Esquire from Washington DC for this information:

"  The case law is now clear that a party's  duty to preserve evidence commences at "the moment that litigation is reasonably anticipated. "  Victor Stanley, Inc. v. Creative Pipe, Inc, 269 F.R.D. 497, 521 (D. Md 2010)(citations omitted). This standard applies equally to plaintiffs and defendants.  The notion that the duty to preserve does not commence until suit is filed or a document request is received is outdated.  Judge Grimm's opinion in Creative Pipe outlines some of the cases in which parties and counsel have been sanctioned for both intentional and unintentional failures to preserve electronically stored information pre-suit, including evidence that could be lost by routine auto-deletions.  His opinion and those of others recently on the subject also emphasis that the party failing to preserve potentially relevant information better not set themselves up  as an early "judge" as to what is relevant in the case.  In the specific example that has been discussed on this forum - - negative Facebook postings - - it would be extremely risky for any plaintiff to start deleting  postings and then try to claim that they did so because they thought the postings were "irrelevant" to the case.   As several spoliation cases have noted, the fact that the party "deleted" the materials is pretty strong evidence that they believed it to be relevant and negative. Indeed, there are cases which hold that improperly deleted data will be presumed to be adverse to the deleting party.  The presumption may do more harm than the actual photo or comment that was deleted.

                In light of the emerging case law, not only would it be ethically impermissible for any attorney to advise a client with a PI claim to clean-up the existing Facebook postings, it would be negligent not to fully inform the client from the outset of the representation as to the scope of the duty to preserve and the potential ramifications of the client's failure to do so.     The case law makes clear that waiting until  a document request is received  is too late to start the preservation.   Moreover, if you have not told your PI client about the duty to preserve and your client on his or her own begins to clean up the social media accounts   and the defense finds out about this and some sanctions are imposed and a good case is impaired, you may have to answer to a lawsuit from your former client for failing to give proper warning as to what the client was supposed to do.  I would not want to be before any of the local federal Magistrate Judges  and have to argue that they should go easy on my client because my client was  not informed of the preservation duties about social media accounts  until after the first discovery request was served.

                The short of all this is that the emerging case law makes clear that the duty to preserve starts very, very early AND that the law has begun to impose on counsel new obligations to fully educate our clients (both on the defense and plaintiff side) as to the duty to preserve.  For this reason, the number of scary spoliation cases is growing as attorneys are not getting the message.

                Finally, what is sauce for the goose is sauce for the gander.  As plaintiff attorneys, none of us would suggest that  a defendant's duty to preserve does not start until a document request is received  or that it would be permissible for defense counsel to delay implementation of a preservation plan until the first document request is served.  As a whole, it is the plaintiff side that benefits more  from strong evidence preservation obligations being imposed. "

When a .07 Blood Alcohol Content Is Not a .07 Blood Alcohol Content

Recently I was presented with a fairly normal drunk driving case. The officer in his report stated that he saw the defendants vehicle lose control while going around the corner. After coming upon the defendant the officer smelled the strong odor of an alcoholic beverage, the defendant did poorly on the field sobriety tests and when the defendant elected to take a breath test results for .07 blood alcohol content. This is certainly sufficient information to charge driving while impaired in the state of Maryland. It also can have a disastrous consequence on the driving privilege of a driver who is under 21 years of age as my client was.

What is fairly normal on the surface can be different when the facts of the case are explored. In my particular case my client was a type I diabetic and has been such for over 12 years. At the time that my client was stopped by the police he was having a diabetic reaction based on an unusual set of circumstances. We were able to present a physician who had an expertise in diabetes. This physician was able to testify that the "alcohol smell" that the officer noticed was not actually alcohol but a byproduct of the diabetic reaction. Further, she was able to testify that the poor field tests were a result of the diabetic reaction which include dizziness and unsteadiness. Finally, she was able to give the opinion that what the breath machine read was not actually alcohol but ketones which again were a result of the diabetic reaction.

We had this expert in court and in court the prosecution dropped the driving under the influence as well as the driving while impaired charge. My client did not sustain a conviction at all.

Before the motor vehicle administration my client was facing up to a one-year suspension of his license as a result of the allegations. At the motor vehicle administration the expert testified consistent with the above. My client testified very credibly as did his father. At the end of the hearing the judge was persuaded that we had presented sufficient evidence as to cast into doubt the evidence presented by the state of Maryland. No action was taken against my client.

DWI usually means driving while impaired, for your defense attorney it should mean "defending with ingenuity". When you are selecting an attorney to defend you in a drunk driving case choose somebody who has the experience and insight to best represent you.

Friday, August 2, 2013

Defendant Corporation and Individual Workout Successful Settlement

I represented an individual and a Corporation who were in financial trouble.  They were unable to pay a substantial creditor and suit was filed against the president individually as well as his Corporation.  The problem was that the president had guaranteed the debt personally.  It is one thing if the claim were only against the corporation.  The corporation was in bad shape and had no assets.  The corporation was basically judgment proof.  The individual on the other hand would be exposed and whatever assets he had could be taken by the creditor to satisfy the judgment.  This would of course include his house, cars, bank accounts, other items of value.

Based on the economic plight of both the individual and his Corporation we were able to settle this case for substantially less than was originally demanded by the creditor.

If you are sued for debt, contact me.  You need to answer the complaint and defend yourself.

Marijuana Charges Dropped against Juvenile

My client was charged with possession of marijuana in juvenile court.  The state's case was fairly strong.  They observed her with marijuana close to school property.  She was a juvenile who had never had juvenile delinquency charges in the past.  The state had their witnesses available and the evidence was analyzed.  It would not have been a difficult case for the state to prove.  Rather than fight the case we were able to successfully negotiate a resolution wherein the charges would be dismissed if my client attended a drug education class, performed some community service, wrote an apology letter, stayed out of trouble and otherwise did the right thing.

These projects were easy because my client is a good student and a decent person.  Because she did these things the prosecution outright dismissed the charges in juvenile court and the delinquency petition is dismissed and the case is closed.

If you are charged with a drug offense, please contact me.  Since 1986 I have handled all manner of drug cases including possession, distribution, possession with intent to distribute, conspiracy as to all manner of drugs.

Thursday, August 1, 2013

When Is a Hit-And-Run Not a Hit-And-Run?

Answer: when the victim does not show up.  And in this case my client at best tapped the victim's car at a stoplight.  He got out of the car.  She got out of the car.  She was on her cell phone and remained on her cell phone.  He asked if she was okay and she responded that she was.  She kept talking on her cell phone.  My client looked for damage on her car.  Out of habit he took pictures of the back of her car indicating no damage.  She would not get off of her cell phone so my client left.

Apparently the victim contacted the police and complained of injuries and of a hit and run accident.  My client was charged with the crime.  I reviewed the pictures that he had.  They showed no damage whatsoever.  The woman apparently went to the hospital.  I was suspecting that she was basically making a fraudulent insurance claim.  No damage to her car.  Telling my client that she was okay.  I did not share the photographs with the prosecutor because I wanted to trap the woman during cross examination.  I wanted her to testify that my client left the scene of the accident almost immediately after the accident.  My client had at least five pictures.  I suspect it takes at least a minute if not more to take five pictures.  Not to mention his one-sided conversation with her.

The prosecutor kept us there all afternoon waiting for the victim to show.  In this case the victim pressed charges and ran.  My client did not hit and run.  The case was dismissed.

Maryland has a comprehensive scheme regarding hit and run.  Common sense and the law dictates that after an impact, no matter how minor, you should stop and exchange drivers license information as well as insurance information.  If there is injury you should take reasonable steps to help the injured person.  If you have any doubts about the other person's motivation you might call in the police.

Fools Rush in Where Angels Fear to Tread

I was hired at the last minute for a serious traffic case.  My client was from out of town so I never met with him but I had a chance to speak with him for about one half hour not long before court.  He told me that he was charged with possessing and presenting a fraudulent license, having no insurance on his vehicle and falsified registration and plates.  He told me that he was stopped on his way to New York.  He showed the officer his legitimate drivers license, showed him car registration and showed him proof of insurance.  Despite this evidence the officer confiscated the car and put these serious charges against my client.  My client's car was searched for weapons and contraband with negative results.  My client was marooned in Maryland for 10 hours with his passenger and baby waiting for help from out-of-state.  My client was just passing through.  I found my client's story to be compelling and I was outraged at the conduct of the officer.  I was wondering if there was racial motivation and my client was the subject of racial profiling.  I asked my client if there were any facts needed to tell me which might have a negative impact on his case.  Nothing that he knew about.

I met my client at the courthouse.  The courthouse was many miles from where I usually practice.  I did not know the judge nor the prosecutor.  I spoke with my client briefly and reviewed his documentation.  It did indeed appear that his license was legitimate, his insurance was in order, and the vehicle had proper registration.

I approached the prosecutor keeping my indignation in check at the civil rights violations my client suffered.  The prosecutor did not know what was coming.  He was looking to see if my client would pay one of the underlying tickets and the serious charges would be dismissed.  I told the prosecutor that my client was in no mood to deal and that we were inclined to contact the Department of Justice and begin a civil rights investigation against the conduct of the officer.  I wanted the prosecutor to call the case so that the officer would have to testify under oath and I could examine the officer fully as to the events of that day.  The prosecutor was not so interested in my crusade and elected to drop the entire case.  Of course my client was pleased with this result.

Out of habit even after the prosecutor committed to dropping the case I requested to review the state's evidence.  The state's evidence was merely a several page police report.  In the report the officer stated that he stopped the vehicle because it had temporary registration in the back window and he was unable to see the expiration date.  In my mind that is a legitimate reason to stop the vehicle.  The officer further stated that the passenger claimed that she had just purchased the vehicle two days earlier and showed a bill of sale which in my mind was grossly disproportionate to the actual value of the car.  The officer then ran the VIN number and was able to determine that the passenger had actually owned the vehicle for several years and that there was an insurance block from out-of-state on the vehicle.  Further, the passenger then admitted that the registration plate was fraudulent.

The case was done and over and I am certain my client had a legitimate license and did have legitimate insurance on the vehicle.  I have my doubts about the registration plate.  Had I seen the discovery prior to my crusade I might have tempered my approach somewhat.  Fools rush in where angels fear to tread.*

*Fools rush in where angels fear to tread is used by Edmund Burke in his work Reflections on the Revolution in France (1790)