File pass-off can’t pump fee award

As March Madness wanes, like a hoopster’s fadeaway jumper, indulge us please in one more basketball reference. We can’t let a good one get away.

Charlottesville’s U.S. Magistrate Judge B. Waugh Crigler already had decided to award fees to lawyers for Pacel Corporation in Calkins v. Pacel Corp. for its opponent’s violation of federal discovery rules and the parties’ own joint discovery plan. But the amount the lawyers asked for on March 25 made Crigler blow the whistle.

Pacel’s lawyers requested $23,498.60, based on hourly rates ranging from $215 to $370. The hourly rate was the first sticking point. Crigler pointed out that Western District courts generally find $250 to be a reasonable hourly rate. Beyond that, he was “concerned with how many attorneys were reasonably necessary to pursue discovery compliance” in the case, especially in light of the $155 per hour spread in lawyer rates.

“While in basketball, the ‘three touch’ rule may lead to effective scoring opportunities, such a practice raises substantial issues of reasonableness in the context of fee shifting. In other words, a party’s default in providing discovery does not, ipso facto, expose that party to all that could be billed to a client who voluntarily engages the services of a well-stabled law firm,” Crigler wrote. Paring the hourly rate, he ultimately awarded $18,850.

So if you’re feeling like a Harlem Globetrotter, save it for that other court.

Game on? Judge not happy over discovery

Pretrial discovery can be a matter of strategy, and some lawyers even approach it as a game.

But one circuit judge in Norfolk isn’t pleased with what he saw as game-playing in a medical-malpractice case. In Oakley v. Warren, Judge Everett A. Martin Jr. reamed both plaintiff’s and defense lawyers, resorting to elementary school terms.

“If this case is representative of the way expert witness disclosure is usually handled in medical malpractice cases, the noble aims of discovery have been twisted into a grown-up version of hide-and-seek,” he wrote.

He castigated the plaintiff’s lawyers for not timely disclosing information, but defense counsel wasn’t blameless. The judge called a defense maneuver a “game of blind man’s buff.” The defense had proposed setting aside a number of days for depositions, but neither side would need to disclose names or specialties.

Ultimately, the plaintiff’s side lost this round, since the judge disallowed the use of their two belatedly designated experts. But the judge fired a parting shot at both: “In future cases, rather than delaying designations until the deadline and scheduling depositions in a 'blind' fashion I suggest counsel follow the rules and the scheduling order and try, instead, honesty and candor.”

Ouch.

Discovery: voice-mail recording admissible

What happens when a speaker leaves a voice-mail message for an attorney, whose recording device doesn’t shut off?

The message left on the machine can come into evidence in a real estate case, according to Loudoun County Circuit Judge Thomas D. Horne. In Pacific Century Development & Realty Inc. v. Wheatland Farms LLC (VLW 005-8-197), a developer is asking for specific performance of a contract to buy a vineyard.

On March 28, Horne handed down discovery rulings in the case, including denying the plaintiff developer’s motion in limine to exclude evidence of the conversation between two parties to a planned three-party call that was inadvertently left on the attorney’s voice mail.

The parties apparently planned a three-way call. When the attorney’s voice mail answered, the callers left a message. But “the device, unbeknownst to the parties to the conversation, continued to record a conversation between the two parties,” Horne wrote in his March 28 decision (VLW 007-8-112).

Any lawyer who has had her voice mail roll over on a long-winded caller knows what she is hearing is a monologue, not a conversation. The law agrees, according to the court.

Virginia’s statute on using recorded conversations, Va. Code § 8.01-420.2, deliberately uses the word “conversations,” not “communications,” which doesn’t cover the one-way message left on a voice mail.

Experts’ reports

A discovery ruling in a black lung case may have ramifications for protecting work-product and confidential communications in other kinds of litigation.

Elm Grove Coal Company was trying to overturn black lung benefits awarded to a retired miner named Ivan Blake. The two physician experts who supported Blake’s claim admitted that Blake’s lawyer might have had something to do with the substance of their factual reports.

That being the case, Elm Grove may have a right to get a copy of draft reports and communications between Blake’s lawyers and the experts, according to the 4th Circuit in Elm Grove Coal v. Director, OWCP. The mine actually was trying to get at the “trustworthiness and reliability” of the doctor experts, the panel wrote, so the reports and communications were fair game. But the court said the situation might be different when it comes to consulting experts, as opposed to testifying experts.