Comments on Recent Cases: July 2020

Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions.

Courts Order Disclosure of Sensitive Documents

Even very sensitive documents are subject to document discovery.

A Manhattan appellate court recently held that a sexual harassment plaintiff needs to disclose in discovery the application she submitted to stay in the United States through a visa program for the survivors of human trafficking.  

The court held that the plaintiff’s objection to producing the application did not specify any ground, and so it waived any objection “based on any ground other than privilege or palpable impropriety.” It also held that a federal statute that protects the confidentiality of visa applications does not protect disclosure of those applications in state court discovery.

I think the plaintiff has a good case to appeal to the Court of Appeals, where she may argue that her initial objection was sufficient. But this also provides a warning to litigants that their objections to document requests must be specific so that a court may not consider them waived.

Courts Strictly Enforce Contract Language

Courts often enforce contract language, even when litigants claim the contract meant something else.

In a recent decision, an appellate court in Manhattan affirmed a decision that the buyers of a medical building breached their agreements by not making payments, even though they had not gotten government approval to operate the facility. The buyers claimed that the contracts should not be enforced because their ultimate goal was frustrated by the lack of government approval. The courts rejected this argument because the language of the contracts did not reflect the parties’ intent that the agreements be canceled without government approval.

The decision illustrates why contracting parties should make their intents clear in their agreements, including plans for problems that may arise.

Court Punishes a Dishonest Lawyer and Copyright Troll

Although virtually all of the lawyers I know take seriously their obligations to be truthful in their work, it is prudent to investigate some unusual claims.

A federal judge recently punished a lawyer in New York who repeatedly lied in court about the death of his grandfather. Another judge had called the same man a “copyright troll,” suggesting that his thousands of copyright lawsuits were frivolous. Among the punishments, the court ordered him to pay opposing counsel’s $855 per hour fees, even though that lawyer had been working for free.

Attorneys should investigate suspicious claims by adversaries, both to ensure that lawyers like this do not harm the public and to minimize the burden dishonest conduct poses to their clients.

Court Weighs the Application of Different Countries’ Laws to a Dispute over a Diamond

A major issue in many lawsuits is whether local law applies, or instead whether the law of another jurisdiction applies. When a transaction or incident took place in another jurisdiction, a court may apply that jurisdiction’s law instead of its own when deciding a case.

This question was considered in a recent case in New York concerning the sale of a diamond. A major Manhattan auction house purchased a diamond in Switzerland and then resold it in New York. In a lawsuit about whether the diamond actually belonged to an Italian family, the auction house asked the New York court to apply Swiss law; the Italian family asked it to apply New York law. An appellate court held that New York law applied since, among other things, New York has an interest in regulating the market in its own state.

When evaluating a lawsuit, it’s important to consider its merits under the laws of multiple jurisdictions and, if there are differences between them, whether good arguments exist to apply the more favorable law.

Court Orders Online Depositions During the Covid-19 Pandemic

It used to be, in another era, that parties to a lawsuit demanded in-person interviews of witnesses. These depositions were held in conference rooms, where people gathered around a table and looked at documents together. I defended such a deposition way back in late February 2020, and I smile when I think of the strange fashion choices and musical tastes in style at the time.

Today, depositions take place over internet video. In a recent decision, a federal court in New York rejected a party’s request to demand that a deposition take place in person. The court held that in person depositions are too dangerous and that the lack of an in person deposition was no reason to indefinitely prolong a lawsuit. The court did, however, extend the time for the deposition (from seven hours to eight) and rule that the parties should split the cost (instead of having only one side pay, as is the norm).

I find internet depositions to be more cumbersome than live ones, but many people disagree with me. In any event, they are unavoidable for now.

Court Dismisses Class Action In Which Plaintiffs’ Expert Report Was Insufficient to Support Their Claims

Class action lawsuits are extremely technical and, among other things, require lawyers to establish that the same set of facts caused injury to the whole group of plaintiffs. This can be straightforward, such as where proving a defective design in a product can show how all of its buyers are owed compensation. But it can be difficult in other cases where each individual injury may be different from others.

In a recent decision, a Manhattan federal court dismissed a class action lawsuit against various players in the aluminum industry. It alleged that the defendants conspired to increase aluminum costs. But the court held that an expert report was necessary to attribute their actions to the plaintiffs’ common injuries. And because it found flaws with the plaintiffs’ report, it dismissed the claim.

This case highlights the need for plaintiffs in technical cases, including class action plaintiffs, to take great care in preparing expert reports and to make sure that they can establish that a class action is the appropriate vehicle for complicated claims.