Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Sunday, March 28, 2004

This one will stump you.  

This one will stump you.

The Supreme Court of Connecticut knows a megabyte from a pixel as well asa a counter suit from a cross complaint.

Justice Katz is no dummy as is evidenced by her understanding of the facts in the recently decided matter of:

PSE CONSULTING, INC. v. FRANK MERCADO AND SONS, INC., ET AL., 267 cone. 279 (2004)

This matter involved damages under a payment bond issued to the defendant in connection with a city funded construction project. The defendant filed a counterclaim, and where the co-defendant National Fire Insurance Company of Hartford filed a cross claim for indemnity against the named defendant and the named defendant then shot off a counter cross claim against the defendant National Fire Insurance Company of Hartford alleging breach of its duty of good faith and fair dealing; thereafter, the complaint and the counterclaim were withdrawn and the case was tried to the jury on the cross claim and the counter cross claim only and you get the picture.... This stuff makes three-dimensional quadratic equations look like a game of chutes and ladders.

Buried amongst all of this procedural gobble-goose is a piece of evidence that broke this case wide open for the defendant. I'm not talking about the fiercely guarded don't hire Mexicans memo or the panties on the ceiling fan... I'm talcum' about a couple of otherwise innocuous e-mail messages that had they just so happened bubbled to the top due to the sleuthing of some fine attorneys and even finer litigation support perilously. Them little e-mail messages didn't involve male enhancement pills nor where they compelling offers by the disinherited Princess of Tanzania who has five hundred million (US) dollars that you can help her smuggle out as long as you let her store it in your back yard next to your kid's Big Wheel and inflatable subterranean. Nope, folks - these e-mail messages contained settlement offers that attorneys were proposing to their clients and to co-defendants.

Settlement offers put in writing but not intended to be published to the other side. This stuff is about as powerful is powerful. Its mere mention can cause investors to cover their eyes invoking the same instincts that they acquired at one too many Mel Gibson films. This stuff is juicer than the Dole Pineapple factory in a typhoon.

I betcha a bag of extra spicey Cheetos that you're jumping up and down like you haven't done since Mrs. Rodriguez decided to halt all bathroom breaks until after rest period. Attorney-Client privilege. Attorney-Client privilege.

Yeah, like you think you know something that Justice Katz doesn't? Remember, Justice Katz can tell a cross-complainant from a counter-claimant - a feat that was last accomplished by Benjamin Cardozo. Settle down now you wide-eyed newcomer you... This thing has more twists than the Thunder Mountain Express.

Oh, I got it. You can't fool me! I studied for the Bar (six times). I know that even beyond the A/C privilege, settlement offers themselves are inadmissible as per most state Evidence codes. Oh, oh, oh call on me. I am enlightened. I will flaunt my understanding of evidentiary rules and everyone will finally come to know how cool I've been all along.

Pa-leeze you neophyte! Sit the heck back down. In fact, don't sit down, run over to the vending machine out by the elevator and get me a Coke. What's that? Do I have change? Get out there before I...

Anyone else care to step up to the plate when Katz is pitching?

I thought not.

The e-mail came in you buffoons. Of course it did. No A/C privilege because it was not between an attorney and his or her client (do I have to repeat myself again? It was from an attorney to a co-defendant. Tchhhhh. Hello. I'm over here! Yoo-hoo! Now will ya' stop lamenting over that lost bet. I would have gone with Jeff Gordon over Dale warmhearted too. You'll win your case of MIGHT and your lava lamp back next year... Now concentrate damned you!).

And the privilege against revelation of settlement offers didn't stick either for the same reason.

So now you know. When one attorney blabs in an e-mail to the party on the same side of the fence that is not technically his or her client (the co-party) then few of the traditional privileges attach and them damning e-mail messages revealing how much a party is willing to pay and how culpable it admits it is comes rolling on in...

Hey, didn't I tell you to get me a cup of ice with that. Get your butt back out there fool!

What if the e-mail was also cc'd or bcc'd to the actual attorney of the co-counsel.

Doesn't invoke the privilege for this purpose says Katz. That secret virtual settlement discussion still comes in. Sorry.

Hey, did I ask for Diet Caffeine Free! Do I have to do everything myself around here?

posted by Alexander | 11:13 PM

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Alex Lubarsky is a practicing litigator and legal technology enthusiast. He was elected to the California State Bar Law Technology Executive Committee in 2003. Alex is a certified trainer and regularly teaches litigation support. Alex is frequent guest speaker at numerous legal technology conferences and State Bar events across the U.S. and has authored articles for legal technology publications such as Law Office Computing and The Bottom Line.

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