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E-Discovery meets politics

By November 13, 2007law practice

The Washington Post asks "
Why is it taking White House officials so long to restore millions of deleted e-mails from the backup tapes they claim to have?" The answer is that E-Discovery is daunting, and fraught with peril.  That’s on a good day, in a case with minimal political ramifications.

Ask Morgan Stanley about the insidious perils of producing emails from backup tapes. E-Discovery is not for the faint of heart.

P.S. If you're a practicing lawyer, check out this Law Practice Assessment . After answering a few questions, you'll get detailed recommendations for improving five key areas of your practice.


  • what happens when a company violates its own settlement in a class action against it and continues to act in the same manner after the settlement was agreed to by both sides ?

    in yu vs signet 103 cal app 4th 298,322 capital one agreed not to sue california customers after they had been already sued in virginia in violation of california’s slapp laws.

    yet despite this settlement in which Capital One agreed not to sue, it still took customers to court in other jurisdictions ( the case of yu vs signet was heard in alameda county ). I was sued in contra costa county and the judge in the suit against me REFUSED to listen to my defense when I brought up the settlement in this case.

    no one has ever addressed this issue and probably others were sued as I was.

  • Helen Lerner says:

    Just read your April 15, 2004 post. You may be interested in my Wikipedia article copied below:”GROUNDHOG DAY LITIGATION”— POST-SETTLEMENT LAWSUIT- TERRORIST EXTORTION SCAM

    The term “Groundhog Day Litigation” was coined by Helen Lerner, M.D.In the “Groundhog Day” movie starring Bill Murray, the character is repeatedly forced to re-live the same nightmarish day. Similarly, the term”Groundhog Day Litigation” refers to a real-life legal nightmare in which a party is forced over and over again to re-litigate the same case they already settled.In contrast to the way the mass media presents Court settlements, cases do not necessarily end when the parties formally agree to settle. The media creates the false assumption that settling a case ends the ordeal for a defendant.So most people presume in error that a Court-adjudicated settlement guarantees an end to the lawsuit and frees a party from further worry and expense.However, certain “lawsuit terrorists” have developed a post-settlement extortion scam against their victim. Even after such a lawsuit terrorist agrees and accepts financial settlement payment from their victim in a Court-adjudicated proceeding, they continue to misuse the Court system thorugh a variety of filings. Such post-settlement filings include appeals and even re-titled lawsuits on the same issues that they already had settled. The lawsuit terrorist files more lawsuit papers to harass the victim with the hope of extorting additional money.The hapless defendant is forced into this Groundhog Day legal nightmare with the enabling complicity of the Courts. Most Courts will not protect any targeted victim from this post-settlement extortion racket. They will not block such a lawsuit terrorist from improperly continuing to file and re-file hundreds of papers on any settled case, indefinitely. Nor will the Courts necessarily ever sanction such a lawsuit terrorist.Every such improper filing forces the victim to take action to respond in legal format and under a strict Court deadline. Every such compelled action incurs time and expense for the victim. If the victim does not answer such improper post-settlement filings, they are subject to a mistaken default judgment, with a sheriff confiscating their property.A notable exception to the usual absence of Court oversight and protection of adjudicated settlements is the legislation enacted by North Carolina. In North Carolina, those litigants whom the state identifies as continually abusing the Court system with excessive, repetitious improper filings must first submit any proposed filings to a specific assigned Magistrate Judge familiar with the case. This Magistrate makes a Preliminary evaluation of the filing BEFORE they allow the filing to be accepted by any Prothonotary office. (See North Carolina Court of Appeals, NO. COA01-1231, Filed: 6 August 2002, Elsie M. Lee v. Richard O’Brien and Wife, Hazel O’Brien, Wake County, N.C., No. 00 CVD 2269. This approach ensures access to the Courts for such people but prevents them from continuing to misuse the system to terrorize their victims. This policy also protects all parties involved in litigation, including those who settle matters in good faith, and who reasonably expect the Courts to enforce the settlement and end costly litigation.In states without such protective legislation, the Groundhog Day post-settlement extortion is possible due to four flaws in the Court system: a) The Prothonotary offices of most United States Court systems, including those of Philadelphia, Pennsylvania, indiscriminately accept all filings without any pre-screening whatsoever, even those that illegally violate a Court-adjudicated and approved settlement. This practice allows anyone to re-file redundant, meritless papers even after settling a case.b.) The Prothonotary offices operate under the premise that all citizens must have open and equal access to the Courts. However, Prothonotary departments have a perverse financial incentive to accept all filings, even repeated improper post-settlement filings. All filings require fees, which initially constitute a huge revenue stream to the city and state.. Therefore, the Prothonotary fiefdom and other officials may not want to stop any lawsuit terrorist since the city and state make significant revenues from these improper filings. (A recent Freedom of Information Act report requested from the Pennsylvania Auditor General revealed that Pennsylvania Prothonotary filings are a source of millions of dollars in revenue. Thus, this extra revenue may be why they accept these improper filings.)However, any lawsuit terrorists’ sometime frameseds of post-settlement filings end up costing city, state and thus taxpayers far more than they receive from initial filing fee revenues. This happens because each redundant case entails sizeable Court operating and administrative costs. These Court costs far out-pace any initial filing fee revenues. Further, these excessive filings cause a significant burden upon the precious resources of the Court.c) There are huge expenses required to defend against any filed case, including post-settlement filings..d.) Typically, due to a backlogged Court schedule, it can take years before a Judge addresses such a case. It is true that a Judge eventually dismisses the accumulation of this slew of repetitious and improper post-settlement filings. The Judge usually rules that the settlement violator had long since lost any further legal rights in the case after accepting settlement. Until this dismissal ruling, the defendant-victim is forced to respond within often exceedingly short time frames. Every response to a post-settlement filing must be in the form of a formal Court-specified pleading, not, for example, a simple letter of protest to the Judge. Any failure to meet such deadlines or format requirements can easily precipitate a default judgment in favor of the lawsuit terrorist, by a newly assigned Judge unfamiliar with the previously settled case.However, each eventual post-settlement judicial decision that re-affirms the prior settlement and rules against the lawsuit terrorist, is irrelevant to such an unscrupulous individual. The lawsuit terrorist does not seek to win a Court case. Instead, they seek to extend the already settled litigation with their repeated cycles of new filings, and embroil the victim in the Groundhog Day extortion scam all over again. In this scam, the lawsuit terrorist can file pro se (without a lawyer and the associated lawyer fees.) Although there is nothing inherently wrong in filing pro se, such a lawsuit terrorist then avoids exposure to sanctions the Court might issue against a lawyer for such improper post-settlement Court filings. Thus, that lawsuit terrorist can afford to avalanche his victim with Court filings, and the Court does nothing to stop him.In contrast, the harassed victim has to pay huge legal fees that can bankrupt them and completely disrupt their life. This situation can be so oppressive that the victim may agree to pay the lawsuit terrorist more extortion settlement payments to stop the terrorist’s actions. The victim may do so in a desperate attempt to end the costly litigation.To an uninitiated outsider it may seem obvious that such payments only encourage the perpetrator. However, the only apparent alternative for the victim is more extensive litigation costs. Aggrieved parties can file costly post-settlement Motions against the settlement violator with quashes, temporary restraining orders, protective orders, Court sanctions for contempt of Court, and injunctive relief and fines. Each of these Motions cost additional post-settlement time and money to file. In addition, unfortunately, each of these Motions also provide another opportunity for the lawsuit terrorist to respond and object, and thereby further extend and complicate litigation which had already been formally settled.For example, since a “Quash” Motion can be used as an answer to any and all Court filing, the settlement violator can file an unending ping-pong series of these Quashes. Since Preliminary Objections can be made to Preliminary Objections, the settlement violator can also misuse Preliminary Objections and other types of filings as piggybacked vehicles for additional endless bombardment. The victim is involuntarily drawn in to the legal ping-pong series since they are required to answer all filings in correct and costly legal format and under a time deadline. Also, Courts will not necessarily ever rule on such additional and increasingly costly Motions. The overburdened Courts may have a perverse incentive to remain uninvolved, apparently hoping the targeted victim will collapse and give in to the lawsuit terrorist’s demands. In addition, even if the Courts were ever to indeed eventually rule, this apparent relief would arrive only after the victim had already suffered extensive financial and personal burdens. Also, the lawsuit terrorist would still be free to then file endless appeals through many (at least three if not) more levels of the Court system. In each level of appeal, the lawsuit terrorist can generate hundreds more filings.The irony is that this flaw, in effect, makes the Prothonotary offices and the Court system apparent accomplices to lawsuit terrorists who violate Court-adjudicated and approved settlements as an extortion scam. There is presently no process in place to stop this particular abuse of the Court system, at least not in the state of Pennsylvania. A strong argument can be made that these lawsuit terrorists are committing the crime of Barratry (see 18 Pa. C.S. 5109). According to Black’s law dictionary, “A person is guilty of a misdemeanor of the third-degree if he vexes others with unjust and vexatious suits. Barratry is the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise. Repeated such actions can warrant jail time.(See State v. Batson, 220 N.C. 411.17 S.E. 2d 511,512,513.)”Apparently, neither Courts nor law enforcement agencies, such as the city District Attorney’s office nor the State Attorney General, have responded to complaints and charged lawsuit terrorists with this crime. That is why such such unethical persons can abuse the Court system to extort their targeted victim with impunity.Some Court officials glibly suggest that this specific abuse of the Courts can be solved by the victim either counter-suing the perpetrator or filing a Motion for contempt of Court against the lawsuit terrorist. However, they are well-aware that such proposed actions are either not appropriate or not feasible solutions in most cases for the following three reasons:First, the legal burden is then placed on the aggrieved individual to personally seek redress. The victim of the lawsuit terrorist should not be forced to re-litigate a Court-adjudicated and settled case. The whole point of an adjudicated settlement was to rely on Court supervision to end the huge legal bills and hardships of a lawsuit. Therefore, the victim should reasonably expect that when a party violates a Court-adjudicated settlement with illegal filings, the Court will not accept such filings. The criminal justice system should intervene to deal with such post-settlement extortion scams.Second, many of those who perpetrate this scam actually anticipate the possibility of a countersuit. They protect themselves by becoming “judgment-proof”. They do this under the questionable guise of an “In Forma Pauperis” Court petition, thereby claiming to have no money and therefore to be “judgment proof.”Third, as noted earlier, because these lawsuit terrorists usually file Court papers themselves pro se (without a lawyer) and as so-called paupers, they bypass both filing fees (at taxpayer expense) and the cost of daunting attorney fees. They also avoid the sanctions that Courts might impose on lawyers if they were to file papers that violated a Court settlement.In recent years, the state of Pennsylvania, in the United States, has clearly recognized and tried to grapple with the burgeoning issue of frivolous lawsuits. The State enacted Dragonetti-type statutes for “malicious prosecution” or “abuse of civil proceedings.” One might think such statutes would be a possible solution to deliberate violations of Court settlements. Unfortunately, such well-meaning statutes can not be applied to, and do not stop the extortion-minded individuals described above, for the following reasons:First, the Dragonetti-type statutes allow a countersuit for malicious prosecution only to someone who has won the prior case. However, in most civil lawsuits (including this type of extortion lawsuit), the parties settle. By the very nature of settling a case, no party “prevails” (or wins). Therefore, these Dragonetti-type statutes which always require that a party “prevail” cannot be used in most cases.Second, as explained above, the extortionist does not care about a countersuit for “misuse of civil procedure” or “malicious prosecution.” This is because a strategic element of their racket is that they file pro se, and thereby incur no detrimental lawyer fees in such a counter-suit. Also, another part of their racket is their claim of being “judgment-proof”, Therefore, the victim while sustaining huge legal fees to bring such a countersuit, could never recover monetary damages in such a counter-suit, even if such a favorable ruling was ever made.In Philadelphia, Pennsylvania, there are several unscrupulous individuals who operate this type of scam. One is known by local Court and Philadelphia City Hall officials as a “lawsuit terrorist” and “Mr. Wrongful Use of Civil Procedure, Himself.” For four years now, this person has made hundreds of Orphans’ Court-adjudicated, post-settlement-violating filings. These filings are estimated to have cost the State over a million dollars. This person can keep improperly suing his victim until the day he or his victim dies. Note that he does so entirely at taxpayer expense since as a supposed “pauper” he pays no filing fees, and the significant Court administrative costs are bourne by taxpayers. Like other lawsuit terrorists, he gets away with doing so simply because the Courts don’t stop him.Repetitious Court filings on an already settled case threaten the legitimacy of all settlements, and the underpinnings of the entire Civil Court system. In Pennsylvania, there is currently an initiative to introduce legislation to correct this current flawed Court Prothonotary procedure, following the model already enacted in North Carolina and other states. Concerned citizens continue to contact relevant officials. Such officials include their State Senators; the Chairman of the Civil Procedure Rules Committee, Honorable R. Stanton Wettick, Jr.,[ at 5035 Ritter Road, Suite 700, Mechanicsburg, PA 17055 717-795-2110,] as well as counsel to the Civil Rules Committee, Harold K. Don, Jr., Esq. at the same address and e-mail. Citizens also contact Steve Crawford, Secretary of Legislative Affairs, Governor’s Office Executive Staff, [ at 238 Main Capitol Building, (717)772-3820, e-mail c/o Anne Wonsettler, executive assistant, ]Meanwhile, to be fair and informative, in all Court-adjudicated and approved settled cases, authorities should mandate and provide an official Disclaimer to all litigants, such as the template as proposed below by Helen B. Lerner, M.D. In the spirit of full and honest disclosure, this Disclaimer would confer several benefits: a.) It would at least forewarn parties who seek refuge in settlement as to potential future risks. These risks include the bitter reality that the Court will not protect the settlement if a rogue litigant re-files on the same case to further harass victims to try to extort further shakedown payments b) The routine attachment of such a Court Disclaimer to every Court-adjudicated and approved settlement would also protect and avert possible liability to city and state officials for individual and class-action lawsuits by aggrieved victims for failing to uphold Court-adjudicated and approved settlements. Such officials include Prothonotary officers and Judges, as well as city and state officials who are charged with supervising the Courts.APPENDIX — SUGGESTED (ONLY SOMEWHAT FACETIOUSLY) DISCLAIMER TO ALL LITIGANTS REGARDING COURT-ADJUDICATED AND APPROVED SETTLEMENTS:* We, the Court are delighted and relieved that you were persuaded, however reluctantly, to accept this settlement. By doing so, you will measurably relieve our heavy workload and the unwieldy and backlogged Court docket of cases under which we Court officials labor.* In submitting to your settlement, you should be aware that you have sacrificed your constitutional right to have a trial.* We, the Court, however, will NOT be responsible for, nor provide any judicial oversight to prevent any future filings against you by your opponent that violate this settlement despite such settlement having been formally adjudicated and approved by this Court.* Specifically, we, the Court, will NOT necessarily impose any sanctions, fines, disciplinary, or other punitive measures against a litigant who violates this settlement which we adjudicated.* We, the Court acknowledge that you have may been driven to accept these settlement terms, regardless of merit. We recognize that even if you think the settlement terms were unfair, you nevertheless agreed to it in order to end the case. You may have done so only to avoid added costly lawyer fees, stop the waste of time, and end the oppressive harassment of a continued lawsuit. However, even if your opposing party subsequently violates the settlement with more improper filings, we will NOT necessarily compel this violator to return any money that you were required to give that party to settle the case-let alone, a return with penalties and interest.* Even if your settlement agreement formally stipulates that all filings in this case must cease, your opponent will nonetheless be allowed to violate the settlement terms with impunity. Your opponent will be permitted to file papers in various Prothonotary offices; papers that violate this settlement agreement, for the rest of their life or yours.

    * The Prothonotary filing office will welcome and accept any filing without any pre-screening, question, review, or cross-checking. Such filings bring in millions of dollars in initial revenues to the Courts, the City and the State, due to the associated lucrative filing fees. (Of course, in the long run the administrative and operational Court costs bourne by the municipality and eventually by taxpayers far outpace such initial filing revenue.) Such unquestioningly accepted filings include those that violate a closed, settled case, including improper appeals. The Prothonotary will even accept those filings from your opponent which improperly re-title the issues of the same case under a different heading.* The Court will not necessarily rule on any of your Motion filings objecting to any post-settlement violations. Such Motion filings include requests for quashes, temporary restraining orders, protective orders, Court sanctions, and injunctive relief and fines.* The Court acknowledges that it will almost certainly take years, if ever, before any Judge rules to dismiss any of these improper post-settlement-agreement filing violation(s).* If your opponent should re-file regarding the core dispositive issues that were supposedly settled, take note that you will be burdened with a repeated de facto lawsuit. This lawsuit will reproduce many of the same torturous conditions that compelled you to settle the original case, such as huge lawyer bills, harassment, emotional trauma, and expenditure of time.*If you do not answer the improper post-settlement filings of the lawsuit terrorist, for any reason. there may be serious consequences for you. Your reasons may include doing so as an act of protest on your part, or to avoid additional significant post-settlement legal fees and expenditure of time, or because the lawsuit terrorist deliberately does not properly serve you with notice of their redundant lawsuit. Nonetheless, if you do not answer such filings that violate this settlement, you may be placed in Default Judgment by a Judge unfamiliar with the past history of the case. Consequently, if for whatever reason you do not answer (in proper format and within the mandated deadline) you may find your property confiscated for a sheriff’s sale.*If for similar reasons, you do not come to administrative hearings or oral arguments scheduled by Judges unfamiliar with the previous settlement of this case, you may be in danger of being placed in contempt of Court. Penalties for Contempt citations include fines and incarceration.* Your opponent may choose to violate the settlement, and under the guise of “serving” legitimate papers, repeatedly lurk at your home or place of work and distribute these papers to inappropriate recipients there. Thereby, you can expect further public humiliation and exposure of your private affairs, without recourse.* If, after we the Court fail to intervene to stop such continued post-settlement harassment, you attempt to obtain a Protection Order, please note that this maneuver will require yet another Court hearing procedure. Your opponent may use this required procedure as an excuse to generate even more filings and appeals against you in that proceeding. They may even initiate a new lengthy lawsuit alleging “Abuse of Process” on your part, regarding your meritorious request for a Protection Order against their post-settlement harassment.* I,(insert name and signature of party), in addition to the actual Court-adjudicated and approved settlement, also agree to the terms of this Court Disclaimer. I agree to hold harmless the Court, its employees, the City and State and their heirs in perpetuity, for their negligence in failing to protect me and the Court-adjudicated and approved settlement to which I have agreed._________ _____________ _________________Date Signature Notary

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