The Privilege Is All Mine: California Appellate Court Finds Law Firm Holds Attorney Work Product Privilege Applicable to Documents Created by Formerly Employed Attorney
June 29, 2017 —
David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLPIn Tucker Ellis LLP v. Superior Court (A148956 – Filed 6/21/2017), the First Appellate District held that (1) the holder of the attorney work product privilege is the employer law firm rather than the former employee attorney who created the privileged documents while a firm employee, and (2) as a result, the firm did not owe a duty to obtain the former attorney’s permission before disclosing the subject documents to third parties.
In Tucker Ellis LLP, the attorney, while still employed by Tucker Ellis, exchanged a series of e-mails with a consultant retained by the firm to assist in asbestos litigation for a client. The firm also entered into an agreement with the consultant to summarize scientific studies on the causes of mesothelioma in a published review article. After the attorney departed the firm, Tucker Ellis was served with a subpoena in connection with a matter pending in Kentucky for the production of communications with the consultant regarding the article. In response, Tucker Ellis, in relevant part, produced the work product e-mails authored by the former attorney. The e-mails eventually ended up on the Internet and reached over 50 asbestos plaintiffs’ attorneys, resulting in the attorney’s termination from his new firm. After Tucker Ellis ignored the attorney’s “claw-back” letter, he filed suit against the firm for negligence, among other causes of action. The trial court granted the former attorney’s motion for summary adjudication on the issue of duty, reasoning that the firm owed the attorney a legal duty to prevent the disclosure of the work product. Tucker Ellis filed a petition for a writ of mandate with the Court of Appeal challenging the trial court’s decision on the duty issue.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com
Mr. Squillario may be contacted at ssquillario@hbblaw.com
Read the court decisionRead the full story...Reprinted courtesy of
DC Wins Largest-Ever Civil Penalty in US Housing Discrimination Suit
November 15, 2022 —
Kriston Capps - BloombergThree real estate companies operating in Washington, DC, will pay record-breaking penalties in a suit brought by the city for illegally discriminating against tenants who use Section 8 vouchers and other forms of housing assistance.
The attorney general for the District of Columbia, Karl Racine, announced on Thursday a settlement for $10 million. While fair housing cases involving lenders have resulted in larger compensation payouts, $10 million is the largest civil penalty ever levied in a housing discrimination case.
In 2020, the city sued several entities — DARO Management Services, DARO Realty and New York-based parent company Infinity Real Estate, as well as several executives — over housing practices in the District. DARO Management operates and rents some 1,200 residential units in more than a dozen apartment buildings spread across Wards 1, 2 and 3, which include DC’s more affluent areas. (DARO Realty owns the properties, DARO Management operates them, and Infinity owns both affiliates.)
Read the court decisionRead the full story...Reprinted courtesy of
Kriston Capps, Bloomberg
Latest Updates On The Coronavirus Pandemic
March 30, 2020 —
ENR Editors - Engineering News-RecordCoronavirus has struck a heavy blow against the world economy as it forces countries into lockdown with "closed for business" signs, hollows out the tourism, travel and hospitality sectors, turns out the lights on business gatherings and events, sends employees home to work and drives the stock market into a dizzying tumble.
ENR Editors
ENR may be contacted at ENR.com@bnpmedia.com
Read the full story for ENR's ongoing reporting, analysis and commentary on construction sector developments
Read the court decisionRead the full story...Reprinted courtesy of
Condominium Association Responsibility to Resolve Construction Defect Claims
July 23, 2014 —
Nicholas D. Cowie – Maryland Condo Construction Defect Law BlogThe Maryland Court of Special Appeals recently issued an opinion in Greenstein v. Council of Unit Owners of Avalon Court Six Condominium Inc. finding that an association can be sued by its unit owner members if it fails to take timely legal action against a developer. In that case, the association was aware of construction defects, but failed to take action to preserve its claim and then filed a lawsuit against the developer too late, after the statute of limitations expired. As a result, the suit against the developer was dismissed and the association was forced to assess its unit owner members for the $1 million in repair costs. Some of the unit owners then sued their association, seeking to recover the cost of their assessments on the ground that the association was negligent in failing to pursue a timely legal action against the developer.
On appeal, the court was asked to decide whether state law permits owners to sue their condominium association for negligently failing to sue a developer for common element construction defects. The court, in an unpublished opinion, found that an association could be held liable to its members. The court said: “The duty to maintain, repair and replace the common elements together with the exclusive right to initiate litigation regarding the common elements [which was stated in a provision of the association’s bylaws] creates a concomitant obligation on the part of the [association] to pursue recovery from [the developer] on behalf of [the unit owners] for damage to the common elements caused by [the developer’s] negligence, breach of contract or violation of any applicable law.”
Read the court decisionRead the full story...Reprinted courtesy of
Nicholas D. Cowie, Maryland Condo Construction Defect Law BlogMr. Cowie may be contacted at
ndc@cowiemott.com
Architect Norman Foster Tells COP26: Change 'Traditional' City Design to Combat Climate Change
November 19, 2021 —
James Leggate - Engineering News-RecordRegaining control over the climate crisis will require a change in the way cities are designed and built, noted British architect Sir Norman Foster told global attendees at the
COP26 summit in Glasgow, Scotland, in a presentation with John Kerry, President Joe Biden's special climate envoy.
Reprinted courtesy of
James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Consumer Protections for California Residential Solar Energy Systems
September 25, 2018 —
Robert A. James & Alexandra Brandt - Gravel2Gavel Construction & Real Estate BlogIt was already the case that in order to offer to install California residential solar energy systems, a contractor must be licensed by the California Contractors State License Board (CSLB) and must hold an appropriate specialty classification. Under AB 1070 enacted late last year (Chapter 662, Statutes of 2017), special consumer protections are being deployed for the benefit of homeowners. Those protections are steadily rolling out.
Step one is the requirement of new Business & Professions Code (B&P Code) Section 7169 that, as of January 1, 2019, a disclosure document must be provided to consumers prior to sale and included on page 1 of the sale contract. The initial version of this document, which was developed by the CSLB and endorsed on August 23, 2018 by the California Public Utilities Commission (CPUC), is available here. The disclosure requirement doesn’t apply to systems included in new home construction.
Reprinted courtesy of
Robert A. James, Pillsbury and
Alexandra Brandt, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Brandt may be contacted at alexandra.brandt@pillsburylaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Revisiting the CMO; Are We Overusing the Mediation Privilege?
November 19, 2021 —
Michael T. Kennedy Jr. - BERDING|WEILOne of the most common features in construction defect cases is the Case Management Order (“CMO”) or Pre-Trial Order (“PTO”) to govern pre-trial and mediation procedures. CMOs and PTOs arose in the days when the HOA would sue the developer, the developer would cross-complaint against the subcontractors, and each defendant and cross-defendant might have 2 or 3 insurance carriers defending, each of whom may retain their own panel counsel. In a large case there may have been 20 parties and 30 defense attorneys. In order to avoid the cost and chaos of all of those parties propounding their own discovery, and in order to prepare these cases for mediation well before trial and the associated costs, it became standard practice in California to include provisions in the CMO to stay all discovery until just before trial.
Plaintiff would provide a Defect List or Statement of Claims and the parties experts would meet and exchange information as part of the mediation process. All of the information exchanged would be subject to mediation privileges and inadmissible at trial. The benefit of this practice was that the parties (and carriers) would avoid the cost of formal discovery and allow the experts to discuss compromised scopes of repair to help settle the case while being able to take a more aggressive position at trial. The disadvantages are that each party uses its privileged initial expert reports to stake out negotiating positions more extreme than what they would put on at trial, with each side losing credibility with the other in assessing the value of the case, and for those cases that did not settle, the parties would be faced with having to do all of the depositions and discovery in the last 60 days, or delaying trial, or both.
Over the last 10 or 15 years with the advent of wrap-up insurance policies, these cases now usually involve 2 sides instead of 20; only the HOA and the developer remain in the case. However, old habits die hard, and the standard CMO/PTO hasn’t evolved with other aspects of these cases. The practice of staying all discovery and exchanging information only under mediation privileges remains, and as a result insurance carriers don’t receive the admissible evidence that they need to determine coverage and evaluate the real settlement value of the case until just before trial. On the plaintiff’s side, if most of the experts’ work is done under the guise of mediation privilege, those costs may not be recoverable. Outside the context of mediation, costs incurred in investigation of the defects and preparation of a scope and cost of repair are recoverable.
This reflexive claim of mediation privilege over all information exchanged during the case has outlived its usefulness. The CMO can and should remain to regulate formal discovery and to help the parties prepare for mediation, but regulated discovery should be opened early in the case. In California, the SB800 process already provides for the exchange of admissible information during the prelitigation right to repair process. Continuing that exchange during the early litigation allows the parties to continue to prepare for mediation, but waiving privileges had advantages for both sides.
A senior claims manager once commented that Plaintiff’s mediation-protected Statement of Claims “might as well be a stack of blank paper” for all of its usefulness to the carrier in assessing the value of the case. If the Plaintiff and it expects are free to inflate their claims early in the case without having to worry about every supporting those claims in front of a jury, they have little or no credibility. And if those claims are inflated or not “real,” not only can the carrier not properly assess the verdict range and settlement value of the case, but it may also be hampered in making a coverage determination. Simply put, if the exchange of real information through formal discovery is put off until just before trial, the defense cannot be ready to settle until then. Worse, the cost of defense goes through the roof in the last 60 days before trial as the lawyers’ scramble to take all of the depositions and to all of the other work that had been stayed for the previous year or two.
The Plaintiff is faced with the same question of credibility of defense experts where they are free to take a “low ball” negotiating position without having to support that position through cross-examination in front of the jury. Just as the carrier behind the defense attorney needs the Plaintiff’s “real” evidence to assess the claim, so does the HIOA Board of Directors behind the Plaintiff’s counsel. Additionally, in California as in most states, the cost of experts’ preparation for mediation may not be recoverable as costs or damages, but investigation of the defects and preparation of the scope and cost of repair is recoverable.
The biggest challenge is resolving construction defect claims for both sides is how to resolve these cases quickly while keeping costs under control. Practices that worked 20 years ago are no longer applicable with changes in insurance, and in light of some of the bad habits that arise when all of the information exchanged was confidential.
The CMO/PTO process can still be useful to regulate the discovery and mediation schedule given the volume of documents and other information to be exchanged but exchanging “real” information in a form that may come into evidence at trial should foster earlier resolution, resulting in cost savings for the parties. The CMO can provide for the parties to respond to controlled discovery, and the exchange of expert reports and potentially depositions can and should be done earlier in the case, well before the eve of trial. The parties can then assess the true value of each case and prepare for more substantive mediation without waiting until they are on the figurative courthouse steps.
Construction defect cases have a pattern, and it is tempting for busy lawyers to just put each case through the same algorithms that they have used for years. However, these cases have evolved and those of us handling these cases need to reevaluate our approach to these cases. Taking aggressive negotiating positions that no longer have any credibility with the other side has become counterproductive, and the exchange of real evidence earlier in the case would better serve our clients and carriers.
BERDING|WEIL is the largest and most experienced construction defect and common interest development law firm in California. For more information, please visit https://www.berding-weil.com
Read the court decisionRead the full story...Reprinted courtesy of
Michael T. Kennedy Jr., BERDING|WEILMr. Kennedy may be contacted at
mkennedy@berdingweil.com
Wyncrest Commons: Commonly Used Progress Payments in Construction Contracts Do Not Render Them Installment Contracts
December 11, 2023 —
Benjamin J. Hochberg - Peckar & Abramson, P.C.In BIL-JIM Construction Company, Inc. v. Wyncrest Commons, LP, 2023 WL 7276637 (Unpublished, decided November 3, 2023), the New Jersey Appellate Division was asked to consider two issues regarding the interpretation and application of a construction contract that utilized the standard form American Institute of Architects owner/contractor agreement (AIA Document A101-2007) (the “AIA Contract”). Specifically, it was asked to consider: 1) whether a modified AIA Contract was an “installment contract,” whereby each progress payment was subject to its own statute of limitations; and 2) whether and when work had been approved in the context of New Jersey’s Municipal Land Use Law. While the decision is presently unpublished, it provides guidance as to how form contracts utilizing the same or similar terms will be treated by New Jersey’s courts and is a reminder that the potential for future claims must be considered during contract negotiations.
Discussion
The primary issue in Wyncrest was whether an AIA Contract was an “installment contract,” and the remaining issues turned on the resolution of this question. Wyncrest, the owner for the project at issue, did not dispute that its contractor, BIL-JIM Construction Company, Inc., had not been fully paid for work that it had performed in connection with a construction project located in Ocean County, New Jersey. Instead, Wyncrest argued that because its AIA Contract with BIL-JIM required that invoices be presented and paid monthly, it constituted an “installment contract.” As such, older payments would be treated as individual transactions and were time barred by the applicable statute of limitations. The trial court agreed with Wyncrest’s characterization of the AIA Contract as an “installment contract,” and found that BIL-JIM’s invoices were each subject to their own statute of limitations. However, the trial court disagreed with Wyncrest’s argument that BIL-JIM’s claim for retainage—which was submitted at the end of its work at the project—was time barred.
Read the court decisionRead the full story...Reprinted courtesy of
Benjamin J. Hochberg, Peckar & Abramson, P.C.Mr. Hochberg may be contacted at
bhochberg@pecklaw.com
