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Young litigators are routinely taught that if the plaintiff does not demand a jury trial in its complaint (or counterclaim), it permanently waived this important right. This time-worn lesson is not necessarily correct, however. There is still hope.
“Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefore in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.”
Fla. R. Civ. P. 1.430(b).However: The Judge “may allow an amendment in the proceedings to demand a trial by jury or order a trial by jury on its own motion” Fla. R. Civ. P. 1.430(d). All may not be lost. Continue reading →
Last week, the Third DCA’s opinion in Gulliver Schools, Inc. v. Snayserved as a lesson to the Facebook generation to once again think before posting. The former Gulliver headmaster sued the school for wrongful termination and the parties reached a settlement whereby Snay was to receive $10,000 in back pay, an $80,000 lump sum payment and $60,000 to Snay’s attorney. As a condition to settlement, Gulliver required a confidentiality provision as to the terms of the settlement. But just four days after the parties inked the agreement, Gulliver notified Snay that he had breached the agreement based on his daughter’s Facebook post:
“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
Gulliver notified Snay that it would pay the attorney’s fees but not Snay’s portion because he had breached the confidentiality provision. The Third agreed with Gulliver, reversing the trial court and setting a precedent that should make social media users think twice before posting. Those of us who rely on electronic discovery have been shouting from the rooftops about the dangers of social media use in litigation for many years. But the result in Snay is one of the first where a litigant has suffered greatly as a result of social media use. This should serve as a reminder to those who use social media to think before you post.
Recently I read a series of articles addressing the question of whether the e-discovery process violates a defendant’s due process rights because it forces the defendant to part with its property (in this case, money) without due process of law. The rationale for this argument is that because e-discovery costs can be significant and generally the producing party must bear the costs, defendants are being deprived of their money simply by being named in a lawsuit, and without due process – the opportunity to be heard before being deprived of a right. This issue tends to be most prevalent in federal courts where the e-discovery process is being evaluated, questioned, and modified by opinions issued on what seems almost like a daily basis.
As a general rule, the producing party must bear the cost of producing its discovery. As electronic discovery becomes the norm in many cases, compliance may become extremely expensive in instances, for example, where the discovery sought exists only on backup tapes, which require intervention from IT specialists to retrieve. In fact, plaintiffs may use the discovery process to pressure a defendant to settle the case simply to avoid the cost of compliance with discovery. While there is the opportunity for abuse in the discovery process, I disagree that a defendant is without due process protections.
Last week I blogged about how social media is impacting businesses in litigation and discovery. This week, let’s look at the issue of employees and how their social media usage can impact discovery in litigation. The social media opportunities are seemingly endless: Facebook, Twitter, LinkedIn, Pinterest and Instagram, to name the biggest players. It is likely that most, if not all employees at a given company have an personal account with at least one or more of these services.
A variety of discoverable information may exist in an employee’s personal social media account. For example, in a dispute over commissions, an employee’s Facebook posts and Tweets may disclose information about the employee’s whereabouts that could support (or rebut) his claims against his employer. Or an employee may tweet, from his desk, confidential information about a company, such as a pending merger or upcoming layoffs.