“Ancient Gesture of Insult” Does Not Justify Traffic Stop

By Stacey Rose Harris
DiMuroGinsberg, P.C.

Don’t flip off a traffic cop. But if you do, they can’t pull you over. At least, they can’t pull you over JUST for that. The U.S. District Court for the Western District of Virginia has decided that a police officer was not justified in stopping a vehicle whose passenger flipped him the middle finger. In 2016, Brian Clark had been a witness in a civil proceeding in the Patrick County Courthouse, a Courthouse from which he had been banned except under certain circumstances, as a result of his behavior. Lieutenant Coleman was aware of Clark and had observed him during the case. When Court adjourned, Lieutenant Coleman proceeded to the parking lot of a nearby grocery store to stop and check his messages. The car in which Clark was driving passed him, and as it did, Clark flipped him off. Coleman proceeded to stop the car, and when he radioed dispatch, learned that Clark had outstanding papers to be served on him. Coleman served the papers, and then let Clark go.

Clark sued Coleman for violating his constitutional rights in conducting an illegal stop, arguing that there was not probable cause. Coleman argued that he has never been given the middle finger unless that person was intoxicated, and that was his justification for the stop. However, his testimony that he had seen Clark in court immediately before, where he had not appeared to be intoxicated, contradicted his assertion that he pulled Clark over for such a suspicion. At trial, the jury found that Clark’s rights were not violated. The Court, however, granted his motion to set aside the verdict, as contrary to law, on the grounds that Coleman lacked reasonable suspicion to detain Clark. The Court denied Clark’s motion for a new trial on the issue of damages, and awarded him $1 and attorneys’ fees.

Under well-settled law of the Fourth Amendment, the Court held, any search or seizure must be based on reasonable suspicion to believe the plaintiff had committed or was committing a crime. “Displaying one’s middle finger is not illegal, nor does the gesture ‘on its own create probable cause or reasonable suspicion’” that Clark violated the law. The mere fact that, in Coleman’s experience, he has never been flipped off unless the person stopped is intoxicated, is not enough, particularly when Clark had seen Coleman just minutes before in Court, where he appeared fine. Nor did either exception to “reasonable suspicion” apply, that is, there was no basis for application of the community caretaking doctrine (routine procedures such as impoundment of a vehicle that impedes traffic or entry into a car after an accident to assess passengers’ conditions), nor were there exigent circumstances (emergencies of any nature or danger to public safety).

DiMuroGinsberg has decades of experience in representing parties to proceedings with constitutional issues like this one, including which raises both Fourth Amendment (search and seizure) and First Amendment (freedom of speech and expression) questions. Our attorneys have represented both plaintiffs and defendants subject to these types of claims, and have a depth of experience in a broad array of civil rights cases, including issues like the ones presented here, as well as excessive force and other Section 1983 actions. Reach out to our firm if you would like to speak to someone further about representation in connection with a constitutional rights claim.

Americans with Disabilities Act Recent Case Law Developments

By Jonathan R. Mook, Esq.
DiMuroGinsberg, P.C.

Title I – Employment Provisions

Is Plaintiff Actually Disabled Under ADA?

In order to have an actual disability cognizable under the Americans with Disabilities Act, an individual must be able to demonstrate that he or she has a physical or mental impairment that substantially limits a major life activity. Merely having an impairment, even a permanent one, is not sufficient, as the Eleventh Circuit Court of Appeals explained in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019). In that case, the court considered whether a police officer who had suffered a heart attack that left her with a permanent injury to her heart was disabled under the ADA. The court concluded that she was not because the only limitation resulting from the officer’s heart impairment was a periodic shortness of breath.

Broad Construction of Disability

In passing the ADA Amendments Act in 2008, Congress sought to broaden the interpretation of the definition of disability and to increase the number of individuals protected by the statute. Thus, in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), the Sixth Circuit Court of Appeals held that an employee had presented sufficient evidence to raise a fact question for the jury as to whether she was disabled under the amended ADA. The employee suffered from a number of back impairments, and after working an eight to twelve-hour shift, she had difficulty walking, standing, lifting and bending and experienced pain constantly. The employee testimony was supported by that of the employee’s daughter, who reaffirmed her mother’s limitations. The Sixth Circuit said that because the ADA Amendments Act requires that coverage under the statute is to be construed broadly, the employee had presented sufficient evidence for her case to be heard by the jury.

Regarded as Disabled

Even if an individual does not come within the definition of having an actual disability under the ADA, the person still may be protected by the statute if the employer regards the person as disabled. That was the case in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019) in which the Eleventh Circuit Court of Appeals held that a police officer who had suffered a heart attack had raised a jury issue as to whether her employer had regarded her as disabled by placing her on leave without pay due to concerns about her heart condition.

Qualified Individual with a Disability

Not every person who has an ADA disability is entitled to the statute’s protections. The individual must be a qualified individual with a disability, that is a person who, with or without reasonable accommodation, can perform the essential functions of the job. What constitutes a job’s essential functions was the subject of the Fifth Circuit Court of Appeals’ decision in Clark v. Champion Nat’l Sec., 947 F.3d 275 (5th Cir. 2020). The case involved a diabetic employee, who would fall asleep at his desk during the work day. Since the employee’s job was to perform uniformed security services, the court held that the employee was not qualified because maintaining consciousness is a basic element of any job.

Retaliation

It is unlawful to retaliate against a disabled employee for seeking a reasonable accommodation. That principle was reaffirmed by the Sixth Circuit in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), where a former employee claimed that her employer had targeted her to work a twelve-hour shift even though she had been medically restricted from doing so because the employee had requested a reasonable accommodation consistent with her medical restrictions. The circuit court said that the employee’s requests for an accommodation constituted protected activity, and the employer’s refusal to adhere to the employee’s medical restrictions was retaliatory and unlawful.

Reasonable Accommodation

An employee need not use any magic words such as “ADA” or “reasonable accommodation” to trigger the ADA reasonable accommodation interactive process with the employer. That principle was highlighted by the Eighth Circuit in Garrison v. Dolgencorp., 939 F.3d 937 (8th Cir. 2019), where the court held that an employee had made a sufficient request for a reasonable accommodation when the employee informed her employer that she suffered from depression and anxiety and made it clear that she was seeking a leave of absence due to her medical condition.

Title III – Public Accommodations and Commercial Facilities

What is a Disability Under Title III?

Learning disabilities are covered under Title III of the ADA. That is the case even though an individual diagnosed with a learning disability is able to achieve academic success. That was the situation in Ramsay v. Nat’l Bd. of Med. Examiners, 2019 U.S. Dist. LEXIS 222782 (E.D. Pa. Dec. 31, 2019)where the federal district court for the Eastern District of Pennsylvania held that a medical student who had been diagnosed with ADHD was disabled despite her prior academic successes and her performance on standardized tests.

Are Websites Covered by Title III?

In Thurston v. Midvale Corp., 2019 Cal. App. LEXIS 830 (Cal. App. Sept. 3, 2019), the California Court of Appeals ruled that Title III of the ADA applies to a restaurant’s website and that the restaurant was obligated to make its website compliant with the Web Content Accessibility Guidelines under both Title III of the ADA and California state law.

Service Animals

As an accommodation under Title III of the ADA, a public accommodation may need to alter a no dogs allowed policy to allow an individual with a disability to be accompanied by a service animal. In Matheis v. CSL Plasma, Inc., 936 F.3d 171 (3rd Cir. 2019), the Third Circuit Court of Appeals held that it would be for a jury to determine whether a plasma donation center was obligated to alter its no animals policy to allow a patient who suffered from anxiety to be accompanied by her service animal.

Franchisor/Franchisee Liability

If a franchisee is sued for its failure to remove architectural barriers, can the franchisor be sued too? In most cases the answer is no because the franchisor had no specific control over the franchisee’s accessibility to the disabled. This was the outcome in Sullivan v. Doctor’s Assocs. LLC, 2020 U.S. Dist. LEXIS 11562 (S.D.N.Y. Jan. 17, 2020), where the federal district court for the Southern District of New York dismissed a franchisor as a defendant in a Title III lawsuit alleging that the franchisee had failed to remove architectural barriers. In doing so, the district court reasoned that the plaintiff merely alleged that the franchisor exerted “general control” over the franchisee’s restaurant, but had failed to allege any facts to show that the franchisor specifically controlled the restaurant’s accessibility.

Jonathan R. Mook, Esq.; DiMuroGinsberg, P.C. Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises : Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.

Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. Mr. Mook is a co-editor of the Mid-Atlantic Employment Law Letter and is a regular contributor to several legal publications, including Bender’s Labor & Employment Bulletin. He is included in Best Lawyers in America (2019 ed.) for employment law.

Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. He earned his Juris Doctor from Yale Law School.

The ADA Thirty Years Later:
An Interview with Jonathan R. Mook

By Corey Pray
DiMuroGinsberg, PC

This year marks the 30th anniversary of the Americans with Disabilities Act (ADA). The enactment of the ADA in 1990 was a major step forward for persons with disabilities in the United States, many of whom faced significant forms of discrimination in the workplace. Corey Pray spoke with Jonathan R. Mook, a partner at DimuroGinsberg and nationally recognized authority on the ADA, about the development of the ADA and its continuing positive impact for both persons with disabilities and employers. Mr. Mook is also the author of two treatises published by Matthew Bender Company, “Americans with Disabilities Act: Employer Rights and Employee Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”

Q: How did you become interested in the ADA?

A: About 30 years ago, when I was practicing employment law, Congress was considering passage of a statute that would provide legal protections for persons with disabilities in the private sector along the lines of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, age, national origin, etc. I knew at that point it was clear that legislation which had been talked about in the past was probably going to get passed and would have incredible ramifications for the country by imposing new obligations on employers and other entities. I started reading up on the ADA and discrimination law. At that time, a federal statute still in existence today, the 1973 Rehabilitation Act, accorded protections for persons with disabilities who worked for the federal government, government contractors, or entities who receive federal funding. The statute, however, applied to a more limited scope of employers, so the ADA was going to pick up on the protections in the Rehabilitation Act and apply them to all private employers of 15 or more employees. At the time, I was considering that the ADA would probably become law. I was fortunate to get a contract with Matthew Bender, which now operates as a division of LexisNexis, to write a law book about the ADA, the manuscript of which would be due within a year or so of the ADA’s enactment. I started researching the ADA, the status of people with disabilities, and the reasoning for the legislation, which was all incorporated into the book I wrote.

Q: Before the ADA, what was the status of people with disabilities in the United States? What sparked efforts in the late 1980s to create and pass the ADA?

A: The period during which the ADA was passed was a remarkable time because both Republicans and Democrats were in agreement that there was widespread discrimination against people with disabilities in our society. We were really ignoring a great resource for our country both in terms of people with disabilities becoming more employable and participating more fully in society. Legislation was needed to combat the myths and stereotypes against people with disabilities, and overall would make our country a much more productive place if enacted. In 1990, during the presidency of George H.W. Bush, a coalition of Republicans and Democrats, including Ted Kennedy and Bob Dole, the latter of whom had a war injury to his arm, all came together to pass the ADA. The ADA was passed in spring 1990 with overwhelming bipartisan support in both the House and Senate, and a signing ceremony took place on the White House lawn on July 26, 1990. July 26, 2020 will be the 30th anniversary of that signing ceremony. The ADA was a remarkable piece of legislation, one that had been fought for by disabilities advocates for many years and represented a great triumph for the legislative process. It had great buy-in by the business community, who understood that persons with disabilities have many talents that we have overlooked and with reasonable accommodations they could participate in society and help society grow.

Q: The ADA is a sizable piece of legislation. Can you describe, in your opinion, its most important provisions?

A: At its core, the ADA requires all private employers of 15 employees or more to (1) not discriminate against persons with disabilities and (2) make reasonable accommodations for persons with disabilities to enable them to work. These were strong add-ons to traditional non-discrimination statutes, particularly Title VII. The ADA introduced these general concepts of non-discrimination and reasonable accommodation. It was the responsibility of the enforcement agencies, most frequently the Equal Employment Opportunity Commission (EEOC), to write regulations to enforce the ADA. The regulations were promulgated in 1991, exactly one year after the ADA was enacted. The Act took effect in 1992 for larger employers and in 1994 for smaller employers which included employers of 15 or more.

Q: Turning to how the ADA is applied, how has this played out in the courts?

A: While the EEOC is responsible for issuing regulations, in a granular fashion it is left up to the courts to apply the ADA in specific situations. Who is disabled? The statute and regulations say a person is actually disabled if he or she has a “physical or mental impairment that substantially limits one or more major life activities.” This is a broad definition. Additionally, the definition encompasses having a record of disability or regarded as having a disability, so even if you do not have a disability but an employer thinks you do and won’t hire you, you are deemed to be disabled to enforce the nondiscrimination portions of the statute. How does this apply to someone who has a leg impairment who is able to walk just fine but has difficulty running? Or what about someone with an eye impairment who can see fairly well with glasses but without glasses cannot? What about someone with very high blood pressure who needs to take medication but can perform the job with medication? These represent just some the various issues that courts face on a daily basis. Further, what is a reasonable accommodation? The statute and regulations say an employer must accommodate a person with a disability unless it would create an “undue hardship.” An undue hardship is defined as a “significant difficulty or expense.” It was left to the courts to figure out what this means. For one employer, making an accommodation that costs $1,000 may be an undue hardship, but for a larger employer it may not be. The courts are still addressing these issues on an individual basis.

Q: Have courts treated the ADA consistently since 1990? If not, what has changed?

A: My interest as a lawyer has been in the case law development of the statute. There have been some significant developments since the ADA was passed. In 1999, the Supreme Court significantly narrowed the interpretation of who is disabled under the ADA. In many cases, even if a person was able to meet the Supreme Court’s definition, he or she might not be able to perform a job even with a reasonable accommodation. In 2008, during the final year of the George W. Bush administration, Congress reversed several prior Supreme Court decisions by enacting the ADA Amendments Act of 2008. This piece of legislation significantly broadened the definition of disability. Now, if an individual has a diagnosed impairment that limits to any significant extent that individual’s ability to perform any major life activity (e.g. seeing, hearing, walking, lifting, bending, sleeping, thinking), that person will be disabled under the ADA. So what counts as a reasonable accommodation now? There is no single answer and court decisions are issued almost every day on this.

Q: What should lawyers keep in mind when advising clients on issues that fall under the ADA?

A: The job of a lawyer is to understand the trends of where courts have been going on specific issues and to predict for your client how a court might rule in the fact-specific situation that a client is asking advice for. It continues to be an interesting area of the law because there are no easy answers and there is no one answer. The answer you give to a client is the best answer that you as an attorney can construct, as well as the reasons for the answer that you believe a court would accept. But you can’t tell your client yes or no in terms of compliance with the ADA. You can only say, “this is my best analysis and here are the reasons for it.” So attorneys need to be creative because this was a statute that was not intended to provide a specific yes-or-no answer. It set forth principles that needed to be applied in specific, fact-dependent circumstances.

Q: Are there any current ADA cases or issues to watch out for?

A: One area that has been percolating for a number of years is to what extent obesity is covered by the ADA. In 2013, the American Medical Association designated obesity as a disease. The extent to which it constitutes a physical or mental impairment for purposes of the ADA is somewhat up in the air. Courts are faced with questions such as, “what substantial limits on life activity are caused by obesity?” This issue is an interesting trend because the case law is still developing.

“You’re in Trouble,” Says Judge to Bladder Injury Plaintiff Who Failed to Disclose Doctor’s Visit in Discovery, and Awards $21,000 in Sanctions

By Stacey Rose Harris
DiMuroGinsberg, PC

Plaintiff Richard Robbins sued Sentara Hospital in Norfolk Circuit Court, alleging that he suffered permanent injury to his bladder following knee surgery, due to negligent bladder management by the nursing staff (likely arising out of catheter care). During discovery, Robbins’ counsel did not disclose that Robbins had visited a bladder specialist in Baltimore, and Sentara’s counsel caught wind of it when they saw reference to a John’s Hopkins appointment in other medical records. The records revealed the Hopkins’ specialist opinion that the bladder issues likely arose “over the span of many years” and were not the result of treatment during his surgery stay.

This revelation was explosive, and Sentara’s counsel sought dismissal of the case or to have the issue of causation taken from the jury, arguing that “Plaintiff and/or his counsel deliberately gave evasive and incomplete responses to avoid production of dispositive evidence.” Sentara’s counsel also pointed to the fact that they had asked for Plaintiff’s counsel to authorize a medical subpoena, and he has put a tight expiration date on it—three weeks. This delayed their obtaining the records. Further, even after being made aware of the existence of new records, he did not supplement Robbins’ discovery responses. Robbins, in an affidavit to the Court, swore that he never disclosed the Hopkins visit to his lawyer. The lawyer, for his part, and represented by his own counsel, stated that he had not seen the Hopkins records until Sentara moved for sanctions, and that his clients had not mentioned the doctor’s statements.

Sentara’s lawyers were galled at Robbin’s position. Nevertheless, on their motion for sanctions, they asked the Court, “What’s your analysis?” The Court found that they “should have disclosed a visit to a world-renowned hospital for a second opinion about the very condition that caused Plaintiff to bring this malpractice suit; and once that omission came to Plaintiff’s attention, he and his counsel should have addressed the oversight immediately. They did not.” Although that omission was suspicious, the Court decided that there was no evidence that this information was intentionally concealed, and declined to dismiss the case or find that Robbins should be precluded from presenting evidence on causation. It did enter an award of sanctions against the Plaintiff of over $21,000, with a stern warning that this type of relevant discovery must be leaked much earlier in the case.

The lawyers at DiMuroGinsberg regularly represents attorneys who find themselves similarly situated to Robbins’ lawyer. Ben DiMuro, managing partner of the firm, has over 30 years of experience in counseling other attorneys on professional responsibility matters and defending them against sanctions motions and before the Virginia State Bar in ethics proceedings.

Johnny Depp’s Defamation Suit Against Ex-Wife Survives Dismissal Motion in Fairfax County

By Stacey Rose Harris
DiMuroGinsberg, PC

Judge Bruce White of the Fairfax Circuit Court has ruled that three out of the four statements on which movie star Johnny Depp has sued his ex-wife, Amber Heard, are actionable, and can go forward to trial.

Although neither party lives in Virginia, because the Washington Post’s servers are here, and the article was published in the online version of the paper, the Court previously ruled that it has jurisdiction over the case.

Depp’s suit arises out of Heard’s 2018 op-ed in the Washington Post, to some degree re-caps prior statements that she made about being a survivor of domestic abuse. Judge White’s opinion reaffirms the viability of a claim of defamation by implication in Virginia, that is, when the defamatory statements are not explicit on their face, but their derogatory meaning can be fairly inferred.

While the article does not explicitly accuse Depp of abuse, the three defamatory statements in it that survived dismissal were:

  • “I spoke up against sexual violence – and faced our culture’s wrath. That has to change.”
  • “Then, two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
  • “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”

In none of these statements—nor in the article itself—is Depp referenced by name. Nevertheless, under the leading Supreme Court of Virginia case of Pendleton v. Newsome, 290 Va. 192 (2015), Judge White ruled that the statements could reasonably be construed by a jury to clearly implicate that Depp sexually abused Heard.

In Pendleton, the Supreme Court of Virginia made clear its approval of claims for defamation by implication. In that case, a child died at school after suffering a fatal peanut allergy reaction. The plaintiff was the child’s mother, who had unsuccessfully asked the school to keep an Epi-Pen on hand for her child. After the child’s death, the school issued a public statement that stated that it is “a parent’s responsibility to provide the school with accurate, timely information; a health emergency plan…and the medicine necessary to execute the plan․ If any one of these items is missing, the doctor’s orders cannot be carried out. The school…relies on parents to follow through.” The Court held that statement can fairly be interpreted to imply that the child’s mother failed to properly equip the school to deal with such an emergency, and accordingly the case could proceed to trial.

Thus, relying on Pendleton, Judge White held that the facts, as pleaded, “would reasonably cause the three statements above to convey the alleged defamatory meaning that Mr. Depp abused Ms. Heard.”

One statement upon which Depp sued did not survive, and that is Heard’s statement that she had to change her phone number weekly to evade death threats, and that she “felt as though I was on trial in the court of public opinion – and my life and livelihood depended on myriad judgments far beyond my control.” This statement, the court held, was too subjective and opinion-based to be actionable.

In the same opinion, the court also rejected Heard’s statute of limitations defense. She claimed that article only re-iterated statements made in 2016. The court did not agree, finding that re-publication triggered the running of a new statute.

Seeking Compassion for Those That Society Forgets

by Zachary Deubler
DiMuroGinsberg, PC
After an eight-day jury trial in December 2017, the defendant was found guilty on thirty-one counts related to money laundering and wire fraud. He was sentenced to a total of 96 months imprisonment, followed by three years of supervised release.

Shortly after his sentencing in January 2017, but before his incarceration for his underlying conviction, the defendant suffered a grand mal seizure. A subsequent CT scan showed a mass in the right temporal lobe of his brain, and a later MRI showed an infiltrative mass-like lesion suggestive of glioblastoma multiforme (GBM). That same January, the defendant underwent subtotal tumor resection which postponed his incarceration.

A postoperative MRI showed that the bulk of the tumor had been removed, though some residual tumor was still seen in scans. After his surgery and his initial round of radiation therapy, the defendant self-reported to the Bureau of Prisons to begin his sentence. Subsequent tumor pathology conducted in prison showed that mass was consistent with a high-grade (WHO Grade III) GBM.

In July 2018, the prison’s doctors evaluated the defendant and projected that he had less than 18 months to live.

That’s when DiMuroGinsberg began its hard-fought battle to obtain a compassionate release for this dying prisoner. On December 21, 2018, the President signed the First Step Act of 2018 into law. Among other reforms, the First Step Act amended 18 U.S.C. § 3582 to permit defendants to file their own motions for compassionate release when, among other requirements, there are extraordinary and compelling reasons to warrant the reduction of the prisoner’s sentence to time served. Among the accepted “extraordinary and compelling reasons” to justify a reduction in sentence is the diagnosis of a terminal illness, such as brain cancer.

Though a defendant might qualify under the First Step Act for a reduction in sentence, the defendant must nevertheless prove that they are deserving of such a reduction; by no means is the diagnosis of a terminal illness grounds for an automatic reduction in sentence. As was the case here, the government often fights the release of those who seek compassionate release under the new First Step Act.

The type of cancer the our client suffered from tends to present mild symptoms—headaches, mild seizures, and fatigue—until the very end life where the patient can suffer from a sudden and sharp decline in health. This presents its own obstacles in convincing a court that a particular defendant is sick enough to warrant a reduction in their sentence, when at first glance they appear to be fine. Though the defendant’s symptoms in this particular case were initially mild, his health deteriorated while in prison; an MRI in August 2019 showed an enhancing mass, and an MRI in November 2019 showed a new brain mass. Given his disease progression, the prisoner’s oncologist took him off the standard chemotherapy regimen and placed him on different drug regiment in a last-ditch attempt to stave off the cancer—it was still a fight to get the release.

In February 2020, the defendant was found unconscious on his cell floor by his cellmate, suffering from yet another grand-mal seizure. After the defendant was brought to the prison’s urgent care center, he continued to suffer from uncontrollable seizures that did not respond to anti-seizure medication.  When he was partially stabilized the prison’s medical staff transferred him to a local hospital’s ICU where he was subsequently intubated and placed in a medically induced coma surrounded by prison guards and cut off from all non-approved contact.

This sudden progression of his illness was enough to finally secure a reduction in his sentence. The defendant subsequently died several days later in the hospital ICU. It was March 4, 2020.
Even though DiMuroGinsberg is pleased to have secured his release, which enabled his family to see him in his final days, we are reminded of those still suffering in our nation’s prisons who are unable to spend their final moment surrounded by those who care for them.

DiMuroGinsberg received an Outstanding Achievement Award from the Washington Lawyers’ Committee for the work we did on this compassionate release case. This was done pro bono by DimuroGinsberg’s Nina Ginsberg and Zachary Deubler in conjunction with the FAMM (Families Against Mandatory Minimums), Washington Lawyers’ Committee, NACDL Compassionate Release Clearinghouse.

When Does an Order Qualify as a Final Order? How Does This Affect Bankruptcies?

By Jarrad Wright

Failing to notice an appeal in time is a classic pitfall that has led to numerous malpractice claims. One key problem plaguing counsel is determining whether or not an order qualifies as a final order for appellate purposes. As a general rule, a trial court decision becomes final for appellate purposes only after the entire case is finished and when there is nothing more for the trial court to do but execute a judgment. While simple in concept, practical application of this general rule can become complicated, especially when there are different types of claims and parties involved. Indeed, in the bankruptcy context, the United States Supreme Court’s recent decision in Ritzen Group, Inc. v. Jackson Masonry, LLC held that the finality requirement for filing an appeal requires creditors to file an appeal of denials of motions to lift the automatic stay within fourteen days, which is often long before the value of the underlying claim would be decided let alone a bankruptcy would be concluded. This understanding of finality could initially seem counterintuitive but, as Justice Ginsburg explained when writing for a unanimous Court, the “ordinary understanding of “final decision” is not attuned to the distinctive character of bankruptcy litigation.”

When a company or individual files for bankruptcy an automatic stay stops all pending and future civil litigation and attempts by creditors to collect on debts. Creditors wishing to proceed with these efforts outside of bankruptcy court are required to file a motion to lift the automatic stay with the bankruptcy court. Using a variety of factors, the bankruptcy court then decides whether to allow the creditor to proceed independently in another forum or whether the matter should be decided as part of the overall bankruptcy case. In the Ritzen case, the creditor waited until after his claim had been adjudicated and the plan of reorganization had been confirmed, to appeal the denial of the motion to lift the automatic stay. However, the Supreme Court held that “the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case.” The upshot of the Ritzen case is that parties involved in a lift stay proceeding must be ready to file an appeal within the fourteen-day period of the bankruptcy court’s determination.

The Court’s reasoning is that moving to lift the automatic stay is a separate issue from the determination of the creditors’ claim itself and the Court explained that “[i]mmediate appeal, if successful, will permit creditors to establish their rights expeditiously outside the bankruptcy process, affecting the relief sought and awarded later in the bankruptcy case.” Moreover, the Court explained that it does not matter whether the bankruptcy court’s decision on lifting the stay implicates other issues to be decided later in the bankruptcy case as long as it “conclusively resolves the movant’s entitlement to the requested relief.” Therefore, in the narrow context of a motion to lift the automatic stay, a bankruptcy court’s determination to grant or deny lifting the automatic stay is a “final” order in which a litigator should quickly move to notice an appeal in order to avoid waiving such an appeal.

However, litigators should be wary of applying Ritzen outside of this narrow context. Routinely in non-bankruptcy cases a pre-judgment decision can have a significant impact on the course of litigation and can affect the relief sought and to be awarded later, yet the decision may not be final for purposes of appeal. In other instances such as a decision dismissing a party for lack of personal jurisdiction may be appealable immediately. Ultimately, careful consideration of the circumstances and type of order involved remains necessary to avoid the classic pitfall.

eDiscovery and How to Best Use it

by Bethany Coan, eDiscovery Project Manager
eDiscovery (electronic discovery…I know you knew that) is here to stay! With thousands of emails and documents connected to individual parties, the amount of discovery law firms are receiving is not getting any smaller. Communications, containing incredibly important information for review, have expanded from simple emails, apps like “What’s App”, Facebook Messenger and Slack just to name a few. New online programs are available to make these communications easier for all, but knowing the most efficient and safest ways to use eDiscovery or any form of communication you choose, is of the utmost importance to your success.

Here are some of the most crucial tips to effectively working with eDiscovery

  1. Create a Timeline! Whether you are using online programs or reviewing your documents the old-fashioned way, creating a timeline using all of your documents will allow you to see exactly how all of the emails and their attachments fit together. The timeline will make it easier to find emails and events by certain dates. A timeline can also help you sort by sender, recipient, date, subject, etc. so you can track various points of information which is helpful to identifying key documents. Some eDiscovery review platforms offer this on their site, but you can create your own timeline using Excel (and save it to a central location available to all team members working on the case). I have found this incredibly helpful for finding hot documents and their connected email chain. It’s a great way to see everything laid out in a visual way instead of endless pages of emails. If the documents have been Bates-numbered, it is ideal to add the page numbers to the timeline for additional reference.
  2. Use Tags! This is the best way to identify key documents that you want to return to at a later point on any eDiscovery platform. The tags can be highly nuanced or much broader, but, either way, it can shave off valuable time searching for documents previously identified. Once the tags have been added, you can review all the documents that have been identified by these tags at one time. The online reviewing platforms will allow you to add as many tags as you would like. I have used tags like “Hot Docs,” “For RFAs,” “Exhibit [X],” and “Deposition” to identify important documents that are necessary for the many stages leading up to trial. The tagged names (i.e. Confidential, Attorneys Eyes Only) can be stamped at the bottom of the chosen pages once you are ready to download the production.
  3. Don’t Remove Metadata! If at all possible, it’s always better to upload an email in its native format rather than a PDF version of the same email. These eDiscovery programs are capable of performing searches based on the time/date an email was sent, who it was sent to, a specific phrase, etc., but once the metadata is removed, it is a flat image and it can be much harder to find the desired email. When receiving emails and documents from clients for discovery, strongly encourage them to give it to you in a native format to keep from losing that valuable and pertinent information. It will make the search process so much easier and faster. The eDiscovery platforms will detect the words in the PDF emails, but it is not nearly as accurate.
  4. Be Specific with Your Search Terms! The key to any good search is using the right search terms. Search terms that are too vague will produce an overwhelming number of documents to sift through. Utilizing Boolean Terms to combine keywords with operators and modifiers such as “AND”, “OR”, and “NOT” will create a richer context among the search terms you explore. The more specific you get, the smaller number of hits that will be returned. Include as much relevant information as you possibly can. eDiscovery platforms offer advanced searches for date ranges, email addresses, lists of names or numbers, etc. You can even designate words to be highlighted automatically when found from page-to-page.

To sum up: be organized, think ahead, be specific and let the programs work for you. You almost have to think like a program thinks as you use the program. Don’t be intimidated. eDiscovery is here and it’s the now and the future of how we will work to bring the best to our clients. Get on the bus.

The Basic Cyber Tool Box for Lawyers

By Zachary Deubler

It’s hard not to have your eyes glaze over when someone mentions the word “technology” and the legal profession in the same sentence. When technology experts using phrases like VPN, Block-chain, encryption, the Cloud, Artificial Intelligence, Data Recovery, lawyers tend to tune out and understandably so. However, since February of 2019, thirty-five states have expressly included knowledge of technology in the official comments for their Rules of Professional Conduct.1 Most states have adopted language similar to comment 8 of the ABA Model Rule 1.1, which states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”2 Moreover, in 2012, Model Rule 1.6 was amended to include the following section “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”3 The amalgamation of these two rules require that lawyers keep up-to-date, to a reasonable degree, with changes in technology while at the same time making reasonable efforts to prevent disclosure of client information. All of this to say, a lawyer needs to have a basic understanding of how Computers and IT play a role in their practice. 4

While we do not pretend that this article addresses all of the complex areas of technology in the practice of law, we do highlight some key areas to consider while you move into the new year. We encourage you to think about the implementation of some of the basics like VPN, Cloud File Sharing, and Data Recovery.

VPN:

Though Virtual Private Network (“VPN”) technology has been out for quite some time, there has been a resurgence of the technology in the news as of late. There are two different uses for VPN technology. The first is a VPN server, and the second is a VPN service. Though they are very similar because they use the backbone technology, their uses are totally different. A VPN server is a business solution for accessing your office files on the road through a secure connection. A VPN server is nothing more than a software program that runs on your office PC 24 hours a day, waiting for you (the VPN client) to connect to it remotely. Once the connection is made to the VPN server, you will have access to your office PC files and other resources in the office – just as if you were physically sitting in front of your computer at your physical office. VPN servers can even be used to get your iPhone, iPads, and Android phones onto your work network and access your client files. Depending on how your VPN server is set-up, it will also include all the benefits of a VPN service, discussed below. A VPN server is not simple to set-up and will require an IT contractor to come for installation and maintenance.

A VPN service is not used for accessing files, but instead, is used to protect your online activity – banking, e-mailing, and other sensitive tasks – from being intercepted and observed. A VPN service allows you to conduct sensitive online activities on public networks – such as coffee shops, trains, hotels, courts. Normally, you would avoid these public networks when working, but with a VPN service, you can conduct your sensitive transactions online knowing your internet traffic is encrypted. To use a VPN in this manner requires that you pay for a VPN service, which can cost anywhere from $35 a year to $10 a month. Though not as fully functional as a VPN server, the VPN service is a DIY project and can easily be accomplished on your own without having to hire outside help.

Cloud File Sharing:

Clients have come to expect an easy way to collaborate with their lawyers. This is due in large part because the internet has gone mainstream and enabled simplicity of services – from banking to ordering a pizza. This has conditioned consumers to expect real-time communication and collaboration. To meet this demand, the vast majority of lawyers use unencrypted e-mail as the primary means of collaboration – e-mail is the default file sharing service – with little regard to the security of the documents contained within that e-mail.5 As discussed above, lawyers have an ethical obligation to ensure that their client’s confidential information remains secure, which includes the way we send and receive documents.

First, assume the worst. Law firms may face different risks depending on the practice area, but every firm should assume that someone is trying to access your files and recognize that though some file-sharing providers can get close, there isn’t a service or company available that can ensure data remains 100 percent confidential.6 Second, educate your clients and staff that “smart” (and not easy) collaboration is the goal of a legal practice. This education can come in the form of retainer agreements and an upfront conversation at the beginning of the matter regarding the way the firm shares and receives documents. Third, and perhaps hardest of all, is stick to your plan. It will be hard to scrap the plan when the first client (or staff member) complains that they have to enter a password every time they receive a document, or that the attachment won’t open on their phone. There are a number of venders to choose from, but there are several key things to keep in mind when picking a vendor: (1) use [a] reliable company or product to feel secure with confidentiality and ease of use; (2) know from the beginning that the product you are using is in your control and is safe for the firm and the firm’s clients; and (3) understand the geographic location of the file sharing services systems, their security, and what they have the ability to do with the files that are shared via their system.7

Data Recovery:

Imagine this: An employee at a firm opens an email attachment and, unbeknownst to them, there’s a program called Cyberlocker hidden in the e-mail, searches their computer and all of the computers on their network for MS Office documents, PDF files, JPG files, and a variety of other types of files. Once this Cyberlocker finds all the files, it encrypts (locks) them with a key only known to the hacker. Now, no one can open any of the firm’s files, move/copy them, or do anything with them without a key to unlock the files. That key is being held for ransom and their data is in someone else’s control. Depending on if the firm was prepared with data backup, they could be back up and running within the same day; or they could be down for days/weeks with massive amount of work product destroyed. In fact, “the FBI has reported that law firms are often viewed as “one-stop shops” for attackers (with information on multiple clients) and it has seen hundreds of law firms being increasingly targeted by hackers.”8

The mantra of all firms, as it relates to security breaches, should be “when, and not if.” Indeed, in 2012 then-FBI director Mueller said “I am convinced that there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.”9 In 2014, the ABA adopted a resolution on cybersecurity that “encourages all private and public sector organizations to develop, implement, and maintain an appropriate cybersecurity program that complies with applicable ethical and legal obligations. A program that is tailored to the nature and scope of the organization and the data and systems to be protected. The organizations covered by it include law firms.”10

As a first step in realizing that goal, all firms should have an individual(s) designated to be responsible for developing and coordinating a security policy. For those starting out, a good basic rule is to have at minimum two back-up locations: one back-up in your office (a local back-up drive) and the second is off-site in a secure cloud (just in case the building burns down, or a power surge damages your in office computer).

Conclusion:

Follow the advice that we often give our clients, “recognize when you’re out of your element and get professional help and guidance.” We are primarily lawyers, and though we enjoy the immense benefits of the digital world that we practice in, we did not go to school to get a degree in cybersecurity or computer coding. Making sure we protect ourselves and our clients will often require that we seek the advice of the experts and work with trained professionals to ensure that we are conducting ourselves in the most efficient, and secure, manner possible. While we don’t pretend to be experts ourselves, we think that it’s incumbent upon our profession to help each other make better and smarter moves as we all progress in this ever-increasing digital universe.

 

1 Tech Competence, https://www.lawsitesblog.com/tech-competence (last visited 12/9/19).
2 ABA Model Rule 1.1 Competence-Comment, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/ (last visited 12/9/19).
3 ABA Model Rule 1.1 Competence-Comment, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/ (last visited 12/9/19).
4See ABA Opinion 477R—Securing Communication of Protected Client Information, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_477.authcheckdam.pdf (last visited 12/9/19).
5 File-Sharing in the Legal Industry, LexisNexis Survey (2014) https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&ved=2ahUKEwjG_ImDgqnmAhVlTd8KHRsiBtkQFjAKegQIChAC&url=https%3A%2F%2Fwww.lexisnexis.com%2F__data%2Fassets%2Fpdf_file%2F0017%2F46061%2Fdocument-security-report.pdf&usg=AOvVaw00yr_xnLqoMSVqzjiR28dG (last visited 12/9/19).
6 See What The Dropbox Hack Means for Lawyers, Above the Law (2016) https://abovethelaw.com/2016/09/what-the-dropbox-hack-means-for-lawyers/?rf=1 (last visited 12/9/19).
7 Law Firm File Sharing: Attorneys in Their Own Words, ABA, (2017) https://www.americanbar.org/groups/gpsolo/publications/gpsolo_ereport/2014/august_2014/law_firm_file_sharing_attorneys_in_their_own_words/ (last visited 12/9/2019). See also 2018 Cloud Computing, ABA, (2019) https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018Cloud/ (last visited 12/9/19).
8 2018 Cybersecurity, ABA (2019) https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018Cybersecurity/ (last visited 12/9/19).
9 Id.
10 Id.