CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

The Preservation Maze

June 12, 2023 — Sofya Uvaydov - Kahana & Feld LLP
To appropriately preserve an issue for appeal is frankly confusing to many attorneys due to differing rules depending on the issue or procedural posture (presumably why appellate attorneys are more commonly used during trial). On May 25th, the US Supreme Court handed down Dupree v. Younger, 598 U.S. __ (2023) clarifying preservation requirements from denied summary judgment orders. When a federal court denies summary judgment on sufficiency of evidence grounds, a party must raise the argument again post-trial to preserve it for appeal as per the Court’s prior ruling in Ortiz v. Jordan, 562 U.S. 180 (2011). When a court denies summary judgment on a purely legal issue, the Court unanimously held that the issue is preserved in an appeal from a final judgment without having to raise it again post-trial. The Supreme Court distinguished this from their prior rule in Ortiz by explaining that sufficiency or factual issues which were previously denied at summary judgment must be evaluated based on the totality of the evidence adduced at trial. A purely legal issue decided on summary judgment is not changed by factual evidence at trial. Read the court decision
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Reprinted courtesy of Sofya Uvaydov, Kahana & Feld LLP
Ms. Uvaydov may be contacted at suvaydov@kahanafeld.com

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Attorney-Client Privilege in the Age of Cyber Breaches

October 18, 2021 — Shaia Araghi - Newmeyer Dillion
Investigations and forensic reports relating to a cybersecurity breach may not always be protected by the attorney-client privilege or work product protection. Companies seeking such reports after a data breach must take caution to protect them from a possible waiver of privilege in the event of subsequent litigation relating to a data breach. The following recent cases highlight the potential waiver of privilege in light of the preparation of a forensic report.

1. In re Capital One Consumer Data Security Breach Litigation, 2020 WL 3470261 (E.D. Va. June 25, 2020)

• After a data breach occurred, Capital One retained a law firm that later entered into an agreement with Mandiant for various cyber-related services (including incident remediation), which required that Mandiant provide deliverables to the firm, rather than to Capitol One. In re Capital One Consumer Data Security Breach Litigation, 2020 WL 2731238, at *1 (E.D. Va. June 25, 2020). Plaintiffs sought release of the report created by Mandiant (regarding the factors leading to the breach), arguing that it was prepared for business and regulatory purposes and therefore was not privileged, while Capital One argued that the report was privileged because it was prepared in anticipation of litigation. Ibid. The Court determined that Capital One did not carry its burden of establishing that the report was protected by the attorney work-product doctrine and ordered that Capital One produce the report. Id. at *7. In its reasoning, the Court stated that the fact that there is litigation does not, by itself, provide prepared materials with work-product protection. Ibid. The work-product protection applies when a party faces a claim following an event that may result in litigation, and the work product would not have been prepared in a substantially similar form but for the prospect of that litigation. Ibid.

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Reprinted courtesy of Shaia Araghi, Newmeyer Dillion
Ms. Araghi may be contacted at shaia.araghi@ndlf.com

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Depreciation of Labor in Calculating Actual Cash Value Against Public Policy

February 16, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The insurer's depreciation of labor in the calculation of actual cash value was found to be against Arkansas public policy. Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. LEXIS 460 (Ark. Dec. 10, 2015). Shelter Mutual's policy provided that it would pay the insured "the actual cash value of all the damaged parts of the covered property." "Actual cash value" was defined as "total restoration cost less depreciation." The policy explained, "When calculating depreciation, we will include the depreciation of the materials, the labor, and the tax attributable to each party which must be replaced to allow for replacement of the damaged part, whether or not that part is damaged." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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San Diego Appellate Team Prevails in Premises Liability Appeal

December 06, 2021 — Corinne Bertsche, Jeffry Miller & Tracy Forbath - Lewis Brisbois
San Diego, Calif. (October 28, 2021) - San Diego Appellate Practice Partners Jeffry A. Miller and Corinne C. Bertsche, along with Associate Tracy D. Forbath, recently obtained a win on appeal when California's Court of Appeal for the Second Appellate District, Division Four affirmed the trial court’s grant of a client homeowners association’s motion for summary judgment. In the underlying matter, the plaintiff alleged claims for premises liability and negligence for injuries he sustained when tripping over an uplift of two misaligned adjacent slabs of concrete sidewalk, measuring 1.25 inches and located next to a condominium complex. The appellate court agreed that the defect in question was a trivial defect as a matter of law, despite the plaintiff’s arguments that there was a triable issue of material fact as to whether the uplift’s dangerousness was exacerbated by the presence of aggravating factors. The appellate court found that the plaintiff’s expert declaration did not support the alleged aggravating factors with admissible evidence, and that the trial court did not abuse its discretion in excluding it. Reprinted courtesy of Corinne Bertsche, Lewis Brisbois, Jeffry Miller, Lewis Brisbois and Tracy Forbath, Lewis Brisbois Ms. Bertsche may be contacted at Corinne.Bertsche@lewisbrisbois.com Mr. Miller may be contacted at Jeff.Miller@lewisbrisbois.com Ms. Forbath may be contacted at Tracy.Forbath@lewisbrisbois.com Read the court decision
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Technology and the Environment Lead Construction Trends That Will Continue Through 2019

June 03, 2019 — Ryan Gould - Construction Executive
There are common factors that have always defined trends in the construction industry. Elements such as labor (be it shortages or surpluses), the economy and technology determine what gets built where, when and how. These elements have led to the rise of entire philosophies to boost profits and maximize value, such as the lean construction movement. Often these trends appear in the form of answers that help construction companies eliminate waste, curb overproduction, use talent properly, manage inventory more effectively, boost process workflow, reduce defects, and help to plan and schedule projects more efficiently. In 2019, two factors are driving trends that are overtaking the industry: technology and the environment. They’re not only informing construction industry trends today, but they’re going to last and evolve into the foreseeable future. Offsite construction becomes standard Obviously, this isn’t a new trend. The earliest origins of this method, at least in North America, date to colonists importing pre-packaged construction materials from Europe to the New World in the 17th century. Then there were the kit homes sold by Sears, Roebuck, and Co. at the turn of the 20th century. And of course, the trend reached its zenith in the World War II construction boom with pre-fab companies selling ready-to-go homebuilding components to builders. Reprinted courtesy of Ryan Gould, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mortenson Subcontractor Fires Worker Over Meta Data Center Noose

April 19, 2022 — James Leggate - Engineering News-Record
A worker on a data center project for Facebook parent company Meta in Utah was fired after admitting to tying a noose at the worksite where racist graffiti had also been found months earlier. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Outcry Over Peru’s Vast Graft Probe Prompts Top Lawyer to Quit

January 15, 2019 — John Quigley - Bloomberg
Peru’s Attorney General Pedro Chavarry quit his post amid allegations he sought to sabotage a plea deal with a major construction company and derail the country’s biggest corruption probe. The board of supreme prosecutors accepted his resignation Tuesday and appointed Zoraida Avalos as his replacement, according to a post on the account of the attorney general’s office. Chavarry will continue to sit on the five-member board. Read the court decision
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Reprinted courtesy of John Quigley, Bloomberg

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Fourth Circuit Questions EPA 2020 Clean Water Act 401 Certification Rule Tolling Prohibition

August 10, 2021 — Karen C. Bennett - Lewis Brisbois
Last week, in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, the Fourth Circuit Court of Appeals suggested that Congress did not intend for the states, or tribes, to take final action on Clean Water Act (CWA) Section 401 applications within a year of filing. The opinion conflicts with the Environmental Protection Agency's (EPA) 2020 final rule that sought to limit state and tribal certifying authorities’ ability to delay federal projects through various tolling schemes. 85 Fed. Reg. 42210 (Jul. 13, 2020). EPA’s rule, codified in existing regulations, states that the CWA imposes a strict one-year deadline for certification decisions, otherwise certification is waived. However, the Fourth Circuit’s view suggests that this waiver is not triggered in cases where the certifying authority has acted on the application, even if it takes longer than a year to make a final certification decision. The court ultimately decided the case on other grounds, leaving a resolution on the statutory interpretation question for another day. Read the court decision
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Reprinted courtesy of Karen C. Bennett, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

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