Ten years ago, U.S. Southern District of New York Judge Shira A. Scheindlin issued a series of opinions in Zubulake v. UBS Warburg regarding the scope of a litigant's duty to preserve electronic documents and the penalties for noncompliance. In her recent decision in Sekisui American v. Hart, Judge Scheindlin set a new standard in the fast-changing world of electronic discovery regarding the appropriate penalty for intentional and permanent destruction of email files despite knowledge of the likelihood of litigation.

Sekisui concerns a breach of contract action arising out of a stock purchase agreement. Sekisui acquired America Diagnostica Inc. (ADI), a medical diagnostic products manufacturer, whose CEO was Richard Hart. Hart stayed on with the company after the stock purchase agreement. However, suspecting non-compliance with certain representations and warranties made by Hart in the agreement, Seksui fired Hart and sent him a notice of claim on October 14, 2010. Sekisui did not implement a litigation hold until January 2012 and filed its complaint against Hart on May 2, 2012. Sekisui did not notify its outside vendor in charge of managing its information technology systems of its duty to preserve electronic documents until July 2012.

During the litigation, in February 2013, Sekisui's counsel revealed to Hart's defense team that Hart's email files were deleted in March 2011 by the outside vendor at the direction of a former ADI employee, despite recommendations to the contrary by the outside vendor's personnel. The reason for the deletion of the email file was to free up space on the ADI server since Hart was no longer receiving work-related email. Sekisui maintained that prior to deleting the email file all emails deemed pertinent to the company were identified and deleted. Hart's counsel moved for sanctions.

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Ronald M. Shapiro is a well-known sports agent, and has represented the likes of Cal Ripken, Jr., and Kirby Puckett. He famously negotiated the $184 million contract of Minnesota Twins catcher Joe Mauer.

Shapiro is also an attorney, an educator, a well-known negotiator and now an author. He recently wrote a guest blog post on Forbes.com discussing his systematic approach to negotiations -- what he calls the 3 Ds -- Draft, Devil's Advocate and Deliver.

Make No Excuses to Perfect Your Pitch
By Ronald M. Shapiro

How often in the aftermath of an important discussion or negotiation do you reflect on the outcome and wonder how you might have achieved a better result? How often were you left thinking, "I wish I had done/said that differently?" During the course of my career, I have encountered countless communication challenges. As I managed these challenges, I developed a systematic approach, the 3 Ds -- Draft, Devil's Advocate, and Deliver -- that made it less likely to have regrets.

Draft is about venting emotions and getting down every thought whether or not you ultimately use them all in a pitch. Devil's advocate is about having someone you trust help you refine your message and maximize its impact. And Deliver is about practicing and preparing for questions or statements the other party might raise -- to get comfortable with your message, so you can communicate it effectively with confidence.

To read the full article, click here >>

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With less than two months until the start of the 2014 Winter Olympic Games, it is important to keep in mind that any unauthorized commercial use of the Olympic trademarks, logos or symbols is prohibited and will be enforced vigorously by the U.S. Olympic Committee (USOC).

Federal law gives the USOC exclusive rights to the symbol of the five interlocking rings, the Olympic flame and torch, and to the words "Olympic," "Olympiad," "Team USA," and "Sochi 2014," among others. The statute is further extended to prohibit any advertising that tends to suggest a connection with the Olympics or the USOC. The USOC's rights, however, are limited to situations where these words or symbols are used (1) to offer goods or services for sale; or (2) to promote a theatrical exhibition, athletic performance, or competition.

In addition to the exclusive statutory rights, the USOC holds trademark rights to Olympic-related words and symbols. Section 43(a) of the Lanham Act prohibits the use of trademarks when they (1) are likely to deceive or create a false impression of affiliation or endorsement; or (2) misrepresent in adverting certain aspects of the product. Unauthorized use of the trademarks could subject a user to possible claims of false endorsement or affiliation, which operate separately from USOC's exclusive statutory rights. Although there are certain exceptions to infringement based on fair use, with the heightened exclusivity in regard to its trademarks, the USOC is not afraid to object to use of one of its trademarks by another party.

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Around the Appellate Bench
  by Patrick McCormick, Esq.

In a decision dated November 13, 2013, the Appellate Division, Second Department decided a case involving a contractor, Matell Contracting Co., Inc., who performed work for a commercial tenant, attempting to enforce a mechanic's  lien against the owner of property, Fleetwood Park Development Co.¹

Fleetwood leased certain property to a new tenant and, pursuant to an agreement with the new tenant, permitted the tenant to renovate the leased property for use as a supermarket. The tenant retained Matell Contracting as general contractor. The tenant failed to pay $1,800,000 allegedly due for work performed by Matell and Matell filed a mechanic's lien against the property. Matell then commenced an action to foreclose the mechanic's lien against, inter alia, Fleetwood Park. Fleetwood asserted several affirmative defenses including that it did not consent to the subject work. Matell moved for summary judgment on the complaint on the ground that Fleetwood consented to the work and to dismiss several affirmative defenses asserted by Fleetwood Park. The Supreme Court denied the motion and Matell appealed.

In affirming that portion of the order denying Matell's motion for summary judgment on the complaint and to dismiss the affirmative defense relating to consent, the Appellate Division examined the knowledge required of an owner before the owner will be liable for work performed for a tenant. The Appellate Division confirmed that Matell "presented evidence showing that Fleetwood Park had knowledge of, and acquiesced in, the work performed to convert the leased property into a supermarket . . ." But, of primary importance, the Appellate Division determined that Matell nevertheless failed to make a prima facie showing that Fleetwood Park actually affirmatively consented to the subject work. The Court confirmed the distinction between the situation where an owner has simply approved or agreed that the work be performed and where the owner affirmatively gave consent for the specific work directly to the contractor. It is this specific consent by the owner directly to the contractor that is required to be proved by a contractor attempting to hold an owner liable in connection with the foreclosure of a mechanic's lien.

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Well, it's about that time for New Year's resolutions. Hopefully one of them is to do a Will. But once you do the Will, where do you put it? A safe deposit box seems like the perfectly logical place to store a Will and other estate planning documents. They are probably the most important documents you will ever have, so shouldn't they be kept in the safest place?

But is it a safety deposit box the best place? Or should you keep it in a fireproof safe in your home? With your lawyer? The court? Or somewhere else altogether?

One thing that I state now, and I'll state it again (because it's just that important): Whatever option you choose, make sure your executor knows what you did!

Although clients often instinctively want to put Wills in a safe deposit box, I personally prefer not to have my clients put their important estate planning documents there.

The problem arises with the fact that most banks seal a safe deposit box when informed of the death of the owner, and a court order must be issued to request that the box be opened to search for the Will. The banks will do this even if there's a joint owner on the box. Although probate courts will generally issue this order "immediately," in practice there is still a delay until the request is made to the court and the order is actually granted.

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