There is an old saying that there is no such thing as a free lunch. But in the e-discovery arena, there are times when counsel can “pass the check” for e-discovery to the opposing party. Many courts treat e-discovery the same way they treat paper discovery, and presume that parties must pay their own costs. See Dahl v. Bain Capital Partners, L.L.C., 655 F. Supp. 2d 146, 148 (D. Mass. 2009)(internal citations omitted). In fact, the Southern District of New York in the landmark Zubulake case found that cost-shifting should be considered only when electronic discovery imposes an “undue burden …
A True “Black Swan”: How unpaid internships were good, but are now bad
I love when a movie comes out that makes me smarter, even without watching it. A good example is The Black Swan. I had never heard of such a thing and had no idea what it symbolized before Fox bombed the airwaves with commercials featuring dark, elegant-looking shots of Natalie Portman in ominous poses. Intrigued, I looked up the metaphorical use of a black swan in literature and film. I learned that a black swan represents an event that surprises the observer, has a major effect on the observer and others, which is usually negative, but is often inappropriately rationalized …
Motions to Dismiss Still A Possibility
In spite of the Second District Appellate Court decision in Sacksteder v. Senny, 2012 Ohio 4452 (2012), which declined to adopt the more stringent pleading standards set out by the U.S. Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), it is still possible to get inadequately pled complaints dismissed via a motion to dismiss or for judgment on the pleadings. Coolidge Wall recently succeeded in having an intentional infliction of emotional distress count dismissed in a discrimination suit because the plaintiff had not pled facts sufficient to demonstrate the …
Ohio Approves Medicaid Expansion Under Affordable Care Act
The Controlling Board, a state legislative panel which oversees spending federal funds, voted October 21, 2013 to accept $2.56 billion from the federal government to extend Medicaid coverage to approximately 300,000 low income Ohioans. The expansion would allow, among others, childless adults earning up to 138% of the federal poverty level (approximately $16,000 for one person ) to be eligible for health care under Medicaid. Under the Affordable Care Act, the federal government will fully fund the Medicaid expansion for three years. After three years, the federal funding is gradually reduced until it reaches 90% in 2020. Critics of the …
How to Increase the Odds that the Loser Really Pays
Often, a client seeking our advice asks if they can recover their attorney’s fees in a lawsuit. We explain that an award of attorney’s fees to a prevailing party only occurs in a few situations: when a Federal or State law mandates an attorney fee award to the lawsuit’s winner, or when a court, in its discretion, determines that the behavior of the losing party is so egregious that punitive damages and attorney’s fees should be awarded. We explain that the necessary egregious behavior needs to almost rise to the level of criminal activity before a court will even consider …
New 3.8% Medicare Tax Law Provides Some Exceptions for Real Estate Industry
Medicare Tax law generally. The new Medicare Tax law (I.R.C. § 1411) was added to the Internal Revenue Code by the Health Care and Education Reconciliation Act of 2010, in part to offset some of the costs of Obamacare. Very generally, the tax is imposed on an individual’s unearned income (i.e., net investment income including, in part, net income from rents and a trade or business that is a passive activity with respect to the taxpayer). The tax does not apply to an individual who either (1) has no net investment income for the year, or (2) has modified adjusted …
When Charity Invites Liability, a Simple Contract Can Help
If you are a small business owner, you may often consider how you can give back to the community or make a charitable use of your commercial property. Picture this: A local nonprofit is hosting a 5K race and asks to use your business’s parking lot as a pre-race staging area. While you would like to help out the nonprofit (and get some good PR in the process), you are concerned about liability. If someone gets hurt at the race, could your business be sued for its involvement? The old saying is that “no good deed goes unpunished,” but, with …
Record Payout for Racial Discrimination by Merrill Lynch
A recent case demonstrates how dangerous it is when an employer does not monitor the workplace to ensure equal opportunity. In what could be a record payment to settle an American class action suit for racial discrimination, Merrill Lynch agreed in August to pay $160 million to black brokers and trainees who worked at the firm since 2001. The lead plaintiff in the case, 68-year-old George McReynolds, has worked at the firm since 1983 and remained at the firm during the pendency of the suit. An estimated 1,200 people may have a claim in the settlement. Allegations made during the …