On March 7, WCM will join with other Philadelphia firms and the Philadelphia Association of Defense Counsel in sponsoring a panel discussion entitled “Leaders in the Courtroom: From the Trial Courts to the United States Supreme Court.” The program (which involves female leaders of the judiciary and legal community) aims to provide insights, observations, suggestions and practical tips for increasing women’s participation as first chair trial attorneys and in other aspects of litigation. For more information about the seminar, please contact Colleen Hayes at ">.
WCM Partner, Bob Cosgrove, and WCM associate, Lauren Berenbaum, published an article entitled Can You Resell Misappropriated Art? in Freeman’s Monthly Business Bulletin. The article discusses the potential copyright issues faced by art collectors who resell misappropriated art. In addition, the article explores the legal challenges posed by artists’ increased use of social media to share their work, advertise upcoming exhibits, and market themselves to a wider audience.
For more information about this post, please contact ">Bob.
WCM is pleased to announce Counsel Colleen Hayes was recently appointed the Co-Vice-Chair for Social Media for the DRI’s Young Lawyers Steering Committee. The selection process draws from a national pool of applicants from all practice areas within the defense bar. In her role as a Steering Committee Member, Colleen recently wrote an article offering advice to young attorneys on how to begin developing business.
For more information about this post, please contact Colleen at ">.
WCM Partner Bob Cosgrove, a CIPM and CIPP-US, published an article entitled Porsches in London: Software, Cars and Recalls, in the December 2018 Defense Research Institute Data and Security Dispatch. The article discusses the gaps between traditional insurance products (i.e. commercial general liability policies, product recall policies and cyber policies) and the ever expanding information world that we live in.
For more information about this post please e-mail ">Bob Cosgrove.
Introduction and Background
As many have experienced, New Jersey Courts can become a quagmire in construction defect (and other complex) cases. To potentially fix this issue, on September 1, 2018 New Jersey implemented brand new Complex Business Litigation Program (“CBLP”) rules – rules that presumptively include all complex construction defect cases with a value above $200,000. This post is a general guideline on (1) what the CBLP changes; and (2) how to effectively utilize the CBLP in an advantageous fashion.
One Judge Per County
The CBLP requires each New Jersey county to designate a CBLP judge to rule on motions or otherwise preside over the inevitable discovery disputes common to CD cases. This particular rule, §4:102-3, should hopefully allow more prompt discovery rulings that allow cases to progress quicker than the current system.
Result: The new CBLP rules will likely result in a more efficient discovery practice as the presiding Judge will be familiar with complex construction actions and the complications of the same.
- §4:103 requires all parties, prior to (a) discovery commencing; and (b) an initial case management conference, to hold a conference among all counsel. This initial conference is where smart litigants can really obtain an advantage. During this conference, counsel is required to:
- Set initial case deadlines, including deposition and discovery end dates;
- Set deadlines for initial disclosures;
- Set limits for discovery requests. The current CBLP rules limit discovery requests to 15 interrogatories per party, including sub-parts, unless otherwise stipulated or ordered by Court.
- Set limits for the hours and amounts of depositions. The CBLP Rules presumptively limit, unless otherwise stipulated by the parties or ordered by the Court, a limit of 70 hours for plaintiff depositions and 70 hours total for all defendant depositions.
This conference is where a smart litigator can utilize the rules in a fashion to craft an advantage for a client. Is the client a 3rdor 4thparty defendant with limited liability? If so, it would be best to limit discovery as much as possible. Is the client the target defendant? If so, it would be best to expand discovery as much as possible.
Result: If played properly, the new rules allow for tactical decisions to benefit the client and/or limit defense costs.
As noted above, initial disclosures are now required in all CBLP cases. The disclosures include the following information: (1) all relevant insurance policies; (2) identity of individuals with discoverable information; (3) initial relevant documents or categories of relevant documents; and (4) alleged damages.
The Initial Disclosures are a blessing for risk-transfer purposes. Often, through the intransigence or indifference of counsel, the actual insurance policies often must be subpoenaed – which is not a short process. Consequently, the new CBLP rules allow the risk-transfer phase of construction litigation to commence at an earlier stage. Specifically, this allows initial tenders and specific responses at an earlier date – which starts the clock for potential reimbursement of costs and/or fees.
Result: The inclusion of the mandated exchange of insurance policies is a massive benefit to the program. Moreover, the disclosures additionally require all parties to disclose the identities of individuals with relevant information at an early stage, without specific requests, This can also allow the early joinder of relevant parties as well as an analysis of possible contribution and/or risk-transfer possibilities.
Meet and Confer
However, with respect to discovery motions, the new CBLP rules also require the parties to “meet and confer” prior to the filing of the motion. This is similar to the requirement in Federal Courts, that require the relevant parties to attempt to resolve the dispute in good faith prior involving the Courts.
Result: Parties will likely no longer unreasonably withhold discoverable information that another party is entitled to. Discovery motions will no longer be commonplace but rather only result where a genuine dispute exists between the parties.
These new rules are designed to streamline the litigation process. Whether or not they actually effectuate change and make construction defect litigation more efficient remains to be seen. We’re only two months into the new rules, so much remains to be seen!
Thanks to Matt Care for his work on this post. For more information about it, please contact ">Bob Cosgrove.
Thanks to WCM’s pro bono efforts, a 32 year-old man fleeing severe religious persecution in Iraq was granted asylum by the New York Asylum Office.
The young man, “KA,” faced religious persecution for being a member of a small religious minority in Iraq called Kakai (also known as Yarsinism). In Iraq, KA received many death threats from religious extremists due to his faith all throughout his education. KA eventually became a physician in Iraq and frequently was not allowed to treat patients because of his faith. KA’s family was forced to flee their homes due to the strong presence of ISIL in the community and KA’s own brother was murdered by ISIL for being Kakai.
Fortunately, KA applied for and received a scholarship to study health administration at a small university in Pennsylvania in 2013. While awaiting his asylum interview, he graduated and received his master’s degree in Health Administration in May 2016.
Attorneys Robert Cosgrove, Chelsea Rendelman, and WCM staff provided pro bono legal services for this case by preparing the asylum application, crafting the affidavit, evaluating and compiling supporting evidence, researching country conditions, obtaining a US work authorization, and preparing for and attending the asylum interview. Our submissions focused on our client’s past persecution as well as his well-founded fear of future persecution based on his religious beliefs. In October 2016, our client appeared for his interview at the New York Asylum Office and a decision was made nearly two years later. After carefully considering all of the evidence and determining that KA could not safely return home or relocate within Iraq, KA was granted indefinite asylum in the United States.
We will now focus our efforts on KA’s path to citizenship so he can continue his education and ultimately pursue his dream of becoming a doctor in America.
For more information about this post, or WCM’s pro bono activities, please e-mail ">Chelsea Rendelman, WCM’s Pro Bono Coordinator.
An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees. The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions).
This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly). In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg. The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services. In the regular course of discovery, the defense attorney identified 16 employee fact witnesses. He then interviewed them and took their statements. Privileged, right?
“No” said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege. The Waste Services’ attorney was ordered to produce all of the interview notes and statements.
Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal. Where the appellate court ultimately comes down remains to be seen. But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent. Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged.
Thanks to WCM’s pro bono efforts, a 32 year-old woman fleeing severe religious persecution in Pakistan was granted asylum by the Newark Asylum Office.
The decision resolves nearly a two-year-long-quest for permanent protection here in the United States. The young woman, “SP,” faced religious persecution for being a Christian and possible death if she continued to practice her faith. This case dates back to 2016, when a pregnant SP fled Pakistan after being beaten and threatened by religious extremists, leaving behind her husband and two young children. In order to protect her own life and the life of her unborn child, SP managed to come to the United States to seek asylum.
Attorney Chelsea Rendelman and WCM staff provided pro bono legal services for this case by preparing the asylum application, crafting the affidavit, evaluating and compiling supporting evidence, researching country conditions, obtaining a US work authorization, and preparing for and attending the asylum interview. Our submissions focused on our client’s past persecution as well as her well-founded fear of future persecution. After an interview and hearing and careful consideration of all of the evidence, the Government agreed that SP could not safely return home or relocate within Pakistan. SP was therefore granted indefinite asylum in the United States.
We will now focus our efforts on SP’s path to citizenship and securing asylum for SP’s husband and two young children who still live in Pakistan. As lawyers, we feel an obligation to help those in need and we appreciate the opportunity to reunite this deserving family in order to help them move onto the next chapter of their lives. We are thrilled with the outcome, knowing that this woman can now live in the United States in peace and out of harm’s way.
For more information about this post, or WCM’s pro bono activities, please e-mail ">Chelsea Rendelman, WCM’s Pro Bono Coordinator</a>.
WCM Partner Bob Cosgrove, who has assumed the presidency of the Philadelphia Association of Defense Counsel, was interviewed by The Legal Intelligencer, the nation’s oldest legal journal. A copy of the interview can be found here.
The heat of the summer has gotten to us! So that we can spend more time in the pool and less time sweltering away, in lieu of a series of blasts, we wish you and yours a happy formal start to the summer. May your drinks be cold, your weather pleasant and all your summer journeys refreshing.
Happy summer from all your friends at WCM!
P.S. For privacy reasons we will not be posting pictures of any WCM partners in their bathing suits. Trust us, it’s for the best.