Wisconsin Business and Commercial Litigation

Although Wisconsin’s rules of civil procedure don’t currently deal specifically with e-discovery, the spectre of continuing increases in the number of cases that require it may force action sooner rather than later.  Jack Zemlicka of the Wisconsin Law Journal writes:

According to the Wisconsin Judicial Council, about 25 other states are considering or have already implemented rules incorporating elements of the 2006 amendments to the Federal Rules of Civil Procedure pertaining to e-discovery.

The Judicial Council recently presented a petition to the state Supreme Court seeking many of the same updates, including enabling parties to specify the form or forms in which electronically stored information is to be produced and a “safe harbor” provision that would prohibit court sanctions if a party fails to produce electronically stored information lost as a result of routine operation of a system

The Council is also recommending that business records be allowed to be produced in electronic form and that parties be permitted to request an opportunity to test or sample materials sought in addition to inspecting and copying them. However, the petition includes commentary from the Federal Rules of Civil Procedure Advisory Committee notes stating that “courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

One of the major problems with the current proposal, points out Zemlicka, is that there is no claw-back provision.  Given the volume of production and the time required to review the information, claw-back has become a mainstay of the federal system.  Of course, nothing official has happened yet, but stay on your toes — it’s sure to impact you one way or another.

Photo courtesy Robert S. Donovan’s Flickr gallery under this creative commons licence.

The free and unfettered access enjoyed to the public records available on Wisconsin Circuit Court Access may soon be limited, thanks to Wisconsin Assembly Bill 340.  Jack Zemlicka discusses the bill in an article from the Wisconsin Law Journal.  Apparently, the bill would require an access fee for most users, and would limit information available online.  There’s not an argument that the information isn’t public or that it shouldn’t be accessible, just, apparently, that it shouldn’t be so easily accessible.  The price tag for making the information more difficult to obtain:  $500,000.

When the whole world is heading the other direction, I wish it were more surprising that some in government want citizens to have less, rather than more, access to public records.

Read what Hinshaw & Culbertson LLP’s Steve Puiszis writes about the Seventh Circuit’s new electronic discovery pilot program.  As everyone’s aware, electronic discovery necessitated changes to procedural rules in courts across the country.  The Seventh Circuit’s program is road-testing approaches to the issue.  If you or someone you know is involved in a case that’s been selected to take part, have a look at Puiszis’s post.  It’ll be worth your time.

If you’ve read my blog over the past several weeks, you’ve seen a few mentions of the recent impact of computer useage and the internet on the law.  I’ve also discussed social networking problems that can arise for both employers and employees.  Similar problems can, and do, arise in the courtroom, along with impacting ethical rules and the nature of advocacy.

Mike Downey, a partner in my firm’s St. Louis office, appeared yesterday on NPR’s Talk of the Nation, to discuss how social networking technologies tend to transform the courtroom and legal experience and how lawyers and judges need to be aware of the special problems they pose.  You can find the audiocast and transcript here. 

Perhaps the most interesting piece is a caller at the end who served as a juror in a medical malpractice trial, and had one of the expert witnesses identified as a good match by the dating site she used.

Because of the prevalence of the cell phones and computers, and each new generation’s complete familiarity and comfort with the devices and instant sharing, communication, and research, preventing occurrences like those discussed in the NPR program will be like trying to hold back a rising tide (see or hear the comments from caller Nathan). 

If you work in courtrooms, or if you get to see them more than you’d like, it’s good to be aware of the complete change in socialization that is under way right now (and has been for some time), and how it may and will impact the next trial.

Brilliance Business Solutions, Milwaukee-based website design and search engine optimization firm, has invited me to post on the Brilliance blog.  I will briefly discuss the use of social networking sites by lawyers and employers.  The information that’s available on any one person has multiplied astronomically in the last few years. 

Some information is put out on the web in first-person format (facebook, myspace, etc.) and some is put out there by others (check out Sorry I Missed Your Party and the facebook open group 30 Reasons Girls Should Call It a Night ).  Regardless of how it gets there, the information can come back to haunt you. 

These sorts of sites provide fertile ground for lawyers seeking to obtain information about a plaintiff or witness.  Employers doing due diligence before hiring may run across all sorts of things that should not impact the hiring decision, but why take the chance?  That applies equally to either – it’s no good for the potential employee, and creates the possibility of litigation for an employer who misuses the information. 

For lawyers, doing a quick search on the deponent or party is always a good idea.  You  never know what might be behind the next mouse click.

A recent e-discovery decision out of Minnesota federal district court (the Zurn Pex plumbing products litigation) reminded me of the high stakes involved in cases dependent upon electronic information.  The staggering cost of discovery of electronic information can alter the entire economic balance of a lawsuit. 

Plaintiffs request roughly 361 gigabytes of data. . . .  Zurn represents that by using the generally accepted standard of 75,000 pages per gigabyte, Plaintiffs’ request amounts to nearly 27 million pages of documents. . . .  If the K drive were not searched, the remaining data consists of 48 gigabytes.   Zurn also states that a search of the custodians’ emails and J drive files will require approximately seventeen weeks and cost $1,150,000, exclusive of vendor collection and processing costs, to review and process the data.

A couple other issues of note — the court mentions that counsel worked through discovery “amicably.”   It’s a sign of the declining level of professionalism in law practice when counsel who work amicably together are sufficiently anomolous to warrant comment. 

For clients, this decision provides something for you to consider.  Counsel who fight bitterly with opposing lawyers, while sometimes scratching an emotional itch on the part of the client, often succeed only in increasing the cost and length of litigation.  Professionalism and civility can make a distasteful event like a lawsuit a little less distasteful.  And as this decision proves, having counsel that are reasonable can, in the end, save millions in discovery and motion costs. 

In Racine County v. Oracular Milwaukee, Inc., et al., dated April 8, 1009, the court of appeals was clear about one thing – computer consultants (whatever that means) are not professionals as that term is used in the tort of professional negligence.

Racine County contracted with Oracular for the installation of software and related training.  When the project lagged, Racine County terminated the agreement and sued Oracular for breach, and violation of Wisconsin’s false advertising statute (p 9).  Oracular moved for summary judgment, arguing that because the contract was one for professional services, and Racine County had not disclosed an expert witness, the claim should be dismissed.

The court could have simply decided that this case was not one for professional malpractice, and been done with it.  In fact, it pointed out that

A plaintiff who is injured by a professional’s malpractice wants to be made whole.  But the case at bar is not a malpractice action;  it is a contract action.  The County wants the benefit of the bargain; it does not seek to be “made whole.”

You’d think that would have been enough.  But, judges being lawyers too, more talking was required.  The court went on to address whether or not the contract was for professional services, and if so, whether expert testimony was necessary in litigating a breach. 

From two lower Federal court cases, the court pieced together the following characteristics of a profession:

(1) a requirement of extensive formal training and learning; (2) admission to practice by a licensing body; (3) a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace; (4) a system of discipline for violating the code of ethics; (5) a duty to subordinate financial gain to social responsibility; and (6) an obligation of all members to conduct themselves as members of a learned, disciplined and honorable occupation, even in nonprofessional matters.

And

“professional” is commonly understood to refer to the learned professions, such as medicine and law.  .…  The court went on to remark, “[A] professional relationship is one of trust and confidence, carrying with it a duty to counsel and advise clients.”

Finally, the court reminded us that expert testimony is “not generally required” to prove negligence, and is an “extraordinary step” to be used for “unusually complex or esoteric issues” are involved.  The general rule, applicable “across the entire spectrum professional negligence cases,” is

While not required in every malpractice case, expert testimony will generally be required to satisfy this standard of care as to those matters which fall outside the area of common knowledge and lay comprehension.  Stated differently, but to the same effect, expert testimony is not necessary “in cases involving conduct not necessarily related to legal expertise where the matters to be proven do not involve ‘special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of [persons], and which require special learning, study or experience.’”

While this is not a Supreme Court case (and it doesn’t appear that the case was appealed), the guidance is worth noting.  If you’re suing a computer consultant, it just became safer to prosecute a case without expert opinion.  On the other hand, to do so may invite unwanted motion practice.  In any event, it’s best to make this decision after a thorough discussion with the client about the costs, risks, and benefits of retention versus non-retention.