Wisconsin Business and Commercial Litigation

The way things are going, I might as well re-name the blog “All About E-Discovery Rules.”  Based on the latest feedback about the 7th Circuit’s pilot e-discovery program, I would be willing to bet that the pilot program is going to take full flight soon.  Have a look at Lawyers USA’s Correy Stephenson’s column about the survey results from the 7th Circuit program.  Apparently, everyone loved it (or at least didn’t hate it), which is pretty incredible coming from a bunch of lawyers.

By the beginning of next year, Wisconsin will have new rules governing e-discovery.  In the Wisconsin Law Journal, Jack Zemlicka writes about the path and content of the new rules.  The rules aren’t final yet, and will require some additional tweaking, but they generally follow the outline of the federal rules on the same topic.

E-discovery, much discussed in the past five years or so, hasn’t made as much of a day-to-day impact as was predicted (buth then again, what ever does?  remember the swine flu epidemic, the avian flu, the year 2000, etc.?).  Nevertheless, in cases where e-discovery is important, it can become one of the central issues in the case, and certainly one of the most expensive components of discovery. 

In federal court, many lawyers have taken to using e-discovery as a crowbar to open opponents’ wallets and get a case resolved through financial blackmail rather than through consideration of the substance of the claims and defenses.  While I don’t at this time quibble much with the details of the suggested rule, my fervent hope is that Wisconsin courts will police the use of the rule in a way that preserves the facts of the case as the most important part of the dispute.

computer photo courtesy dlisbona’s flickr gallery via this creative commons license

In Poston v. Barr, the District 1 Court of Appeals reviews a Milwaukee County Circuit Court decision regarding the foundation for and admissability of opinion evidence by lay witnesses.  In this invasion of privacy suit, the Barrs recorded the Postons making noise and raising a ruckus (as my grandmother used to say).  The recordings were eventually used by the municipal police department to cited to Postons for disorderly conduct. 

Not to be outdone, the Postons sued the Barrs, claiming that the recording invaded the Poston’s privacy in violation of Wis. Stat. 995.50(2).  That statute prohibits:

(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

The Barrs sought summary judgment, arguing that because they placed the recorder on ledge of their bedroom window, there was no evidence that they had violated the statute.  The court denied the motion:

I do think that a reasonable jury could conclude, based on this summary judgment record, that in fact the manner in which … these recordings were secured was something other than simply placing a recorder that only picked up sounds emanating from and into the home of the [Burns-Barrs].

Circumstantially, given what’s on those tapes and given the logistics that are involved here, given what is asserted to be the mechanism by which the sounds were recorded, I think a jury may ultimately conclude, certainly could ultimately conclude that something other than that recorder was used, and by inference, that some type of sophisticated electronic recording equipment was used, which would lead to the conclusion that they are in fact electronically invading the residence of the [Postons] and that that’s an actionable trespass, it’s … a highly offensive intrusion into their home, et cetera, and I think that resolving that claim by summary judgment is inappropriate for that reason.

At trial, the Postons argued that because of the content of the tapes, it stood to reason that the Barrs had used a sophisticated listening device. 

In closing, the Postons’ trial counsel told the jury that “my clients [the Postons] … don’t believe that [the recording] was done … with a digital recorder placed in the window sill.”  Trial counsel asked, “Do you want us honestly to believe that they were able to make recordings of that quality with just that Olympus recorder?”  Trial counsel also speculated that the Burns-Barrs might have used a specialized microphone to make the recordings, stating:

Now, there are microphones that allow you to direct a microphone and I’m not an expert on all that kind of stuff, but I’ve seen them. In the NFL they have specialized microphones…. I guess [football teams] use that, steal defense signals of other teams or something like that. But you know, I don’t know what there might have been…. I have no way of knowing. There’s no possible way for us to know because we don’t have the equipment. We don’t know what equipment they have.

No expert witness testified regarding the necessity of “more sophisticated” equipment.  Only the plaintiffs provided evidence that they thought the recordings could not have been made from the window ledge.  The jury agreed, finding for the Postons.

The Court of Appeals reversed:

Here, the Postons’ case was premised on their “belief” that the fifty-dollar Olympus recorder was not the one used to record the Postons’ behavior in relation to the Burns-Barrs. There is not a scintilla of evidence in the record to demonstrate any knowledge whatsoever by the Postons as to the technical capacity of the disputed recorder, or any other electronic recorder. The Postons offered no personal experience, no academic or technical training and no competent expert testimony to support their “belief” that something more sophisticated must have been used. Moreover, both of the Postons acknowledged at trial that they had no affirmative evidence that another recorder had been used. Nonetheless, at the summary judgment argument, the trial court accepted the Postons’ argument that a jury could use its “common sense” to determine the technical capacity of the recorder in evidence and the Postons were permitted to offer their lay opinions that another recorder had to have been used. This was error.

Lay witnesses are often called upon to provide opinion testimony.  That testimony should be carefully measured against the bounds set by the courts.

Tape recorder courtesy Jen SFO-BCN’s flickr gallery via this creative commons license.

In the Wisconsin Law Journal, Jack Zemlicka comments on a so-called “litigation prenup” that aims to make litigation more efficient.  These types of agreements may limit the amount or type of discovery, require pre-litigation dispute resolution techniques, both formal and informal, or identify particular issues or information that is off-limits in the event of a later dispute.  As always, Zemlicka makes good points, but in this case he doesn’t discuss the risks of agreeing now on how to disagree later. 

Negotiating the agreement early in the relationship, when each party is anxious to do business with the other, carries both risks and benefits.  One obvious benefit is that, during the honeymoon stage, neither party believes that the relationship will later sour, much less end in the courtroom — as a result, the negotiation of limits on future litigation is much easier than hammering the same agreements out between opposing counsel after the suit’s been filed.  On the other hand, that same honeymoon stage feeling can cause a party to give away more than is prudent to get the deal done, perhaps negotiating away the one unforeseen advantage it may have when the process server comes knocking.  As we trial lawyers are fond of saying (at least I am), you can plan for everything but what actually happens.

While the litigation prenup is based on a great theory — that everyone wants efficient litigation — it has its drawbacks, and should be entered into carefully, if at all.  Many of the same benefits can be later realized by hiring reasonable counsel (as I’ve previously written about) without the risk of dealing away advantage. 

Handshake courtesy AndyRob’s flickr gallery via this creative commons license.

The Wisconsin Supreme Court will decide whether you get to be represented by the attorney you choose when that attorney has previously represented a third-party witness to the litigation.  In Foley-Ciccantelli v. Bishop’s Grove Condo Assoc., the District II Court of Appeals (which includes Waukesha County) was faced with a situation where the plaintiffs hired counsel of their choice to represent them in a slip and fall that occurred on Bishop’s Grove property.  Unfortunately, that lawyer’s firm had previously represented the property manager for Bishop’s Grove condos.  Although not a party, the property manager, as you can imagine, was a witness who would figure prominently in the litigation.  The Wisconsin Law Journal has more detail on the facts of the case.

The issue, as phrased by the court of appeals, is:

Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action where the attorney previously represented a nonparty witness for the opposing side?

Moving for disqualification of the opposing party’s counsel is, unfortunately, not uncommon, but not generally successful.  The Supreme Court will, hopefully, provide additional guidance to Wisconsin practitioners on this issue.

My firm regularly publishes an employment law update, filled with summaries of the latest cases.  Have a look at the most recent edition:

http://www.hinshawlaw.com/employment-practices-alert-05-03-2010/#Employer