Follow-On Class Action to an Individual Suit = Double Jeopardy?

[quincy]

Exactly a year to the day after the filing of the defendants' motion to dismiss, and one day after I filed a letter-brief asking for discovery to start, despite the pending motion, a magistrate judge issued a 105-page report & recommendation ("R&R") dismissing all but one of my claims. As you might expect, I found the R&R biased: it contained material errors, omitted material facts and mischaracterized others, while adopting a skewed interpretation of various legal issues, using tortured logic. Virtually the entire text and language of the R&R to dismiss one of the claims could even have come straight from the defendants.

I have two weeks to file an objection.

Question: What's the likelihood of the case's new presiding judge, appointed less than a year ago to the bench, of over-ruling a senior magistrate's R&R: close to zero?

That is the type of question that is impossible for any of us to answer, Paul.

A 105 page report and recommendation, huh? Geez. If there are material errors, however, and you have the time and energy, you could file an objection.

What claim survived?

 

[You Are Guilty]

Question: What's the likelihood of the case's new presiding judge, appointed less than a year ago to the bench, of over-ruling a senior magistrate's R&R: close to zero?

Impossible to answer without knowing the MJ, DJ and reading the R&R.

At a minimum, in that it took the MJ a year to issue it, (and its 105 pages), I'd at least consider asking for more than 2 weeks to review and file objections. After a year's delay, now there's a rush?

{edit}
If it's any consolation, your case didn't make the SDNY's front page "interesting cases" section. The latest one is still the guy who somehow won a $12M punitive damage award for 24 bottles of fake wine.

 

[quincy]

... {edit}
If it's any consolation, your case didn't make the SDNY's front page "interesting cases" section. The latest one is still the guy who somehow won a $12M punitive damage award for 24 bottles of fake wine.

Yikes. I think it is time for me to invest in some (hopefully fake) wine.

 

[ecmst12]

There was an episode of CSI about fake wine not too long ago.

 

[Paul84]

Impossible to answer without knowing the MJ, DJ and reading the R&R.

At a minimum, in that it took the MJ a year to issue it, (and its 105 pages), I'd at least consider asking for more than 2 weeks to review and file objections. After a year's delay, now there's a rush?

{edit}
If it's any consolation, your case didn't make the SDNY's front page "interesting cases" section. The latest one is still the guy who somehow won a $12M punitive damage award for 24 bottles of fake wine.

Thanks for the replies. I did manage to get the objections filed on time. If the district judge ("DJ") sides with the magistrate, or even partially agrees with the recommendation, what then is the procedure? Would I do a motion for the DJ to reconsider, go directly to appellate court with an appeal, or is such an appeal not even an option at this stage for dismissed claims if one claim survives?

 

[Paul84]

Admissibility of Evidence from Private Investigator

If a law firm hires a private investigator to solicit information by interviewing individuals without disclosing that s/he (the investigator) is working on behalf of a law firm involved in an ongoing or prospective lawsuit, is information obtained by the investigator via these interviews admissible as evidence for that lawsuit?

 

[ecmst12]

Under what rule or statute would it NOT be admissible?

 

[quincy]

If a law firm hires a private investigator to solicit information by interviewing individuals without disclosing that s/he (the investigator) is working on behalf of a law firm involved in an ongoing or prospective lawsuit, is information obtained by the investigator via these interviews admissible as evidence for that lawsuit?

How is this private investigator soliciting the information (is he pretending to be someone he is not?), and is the private investigator recording the interviews (and, if so, are those who are conversing with him aware of the recording)?



(as an aside: Thank you, Paul84, for always being so pleasant to everyone on this site. It is appreciated.)

 

[Paul84]

How is this private investigator soliciting the information (is he pretending to be someone he is not?), and is the private investigator recording the interviews (and, if so, are those who are conversing with him aware of the recording)?

(as an aside: Thank you, Paul84, for always being so pleasant to everyone on this site. It is appreciated.)

Thanks for the replies and comments. I assume the law firm would hire a professional investigator who knows the rules (e.g. whether the jurisdiction allows a recording or not). If s/he takes handwritten/typed notes, either verbatim (which would be discoverable)* or as a summary (which would not)*, could this person pretend they were calling with questions for another purpose? I ask because the surest way to get a potential interviewee to clam up would be to say you were calling about a potential/existing lawsuit.

* Am not completely sure about this discoverability aspect, but it's my impression from some reading on the subject a while ago ...

 

[quincy]

With some luck, You Are Guilty (a New York attorney) will see this thread and respond.

In the meantime, the following is a link with information you might find helpful. It was designed as a law school class supplement on New York evidence law and explains evidence law well (I do not believe there have been any significant changes in the law since this was written): http://www.law.syr.edu/pdfs/0ny evidence law 2006 updated.pdf

The reason for my questions about how the interviews were to be conducted is that evidence can be excluded if it is obtained in violation of a law. In addition, anyone interviewed who felt his/her rights were violated could potentially have civil or criminal actions to pursue against the interviewer/investigator (and perhaps the law firm that hired him). Deception in order to obtain information to use as evidence can be problematic, as can surreptitious recording - even in "one party consent" recording states.

 

[Paul84]

With some luck, You Are Guilty (a New York attorney) will see this thread and respond.

In the meantime, the following is a link with information you might find helpful. It was designed as a law school class supplement on New York evidence law and explains evidence law well (I do not believe there have been any significant changes in the law since this was written): http://www.law.syr.edu/pdfs/0ny evidence law 2006 updated.pdf

The reason for my questions about how the interviews were to be conducted is that evidence can be excluded if it is obtained in violation of a law. In addition, anyone interviewed who felt his/her rights were violated could potentially have civil or criminal actions to pursue against the interviewer/investigator (and perhaps the law firm that hired him). Deception in order to obtain information to use as evidence can be problematic, as can surreptitious recording - even in "one party consent" recording states.

Thanks again, Quincy. Parts of that linked file nicely supplement notes from Thomas Mauet's books on trial evidence and pretrial procedures.

The investigator would be asking former (or possibly current) employees about potentially illegal actions of their firm and one or more other companies, so I don't think there could be claims that the investigator violated individuals' rights or any laws. Most interviewees would not even realize that the companies' actions were illegal or that they were in any way "disparaging" the firm, even if they happened to have signed a non-disparagement contract as condition for severance. Nor do I think that a business's claim of "confidentiality" can protect illegal acts. However, if anyone can prove me wrong, please do so.

 

[You Are Guilty]

This is so incredibly fact-specific that it is near pointless to answer, but generally, investigators are permitted to speak to witnesses and obtain whatever statements they are able. The admissibility of these statements still depends on compliance with the FRCP and the mere fact that the investigator did not disclose which party employed them certainly may be raised in an a motion in limine to bar the use of the statements in court. But unless there are some other grounds to keep them out, I doubt many courts will care who the PI worked for. (And to the extent there is some sort of constitutional argument being raised to prevent introduction of the statements, even assuming one exists, it is likely personal to the declarant and the opposing party would lack standing to raise the issue. No fruit of the poisonous tree doctrine in civil cases).

PS: I happened to be an unemployed hairdresser from Peoria. Don't want anyone to get the wrong idea here.

 

[quincy]

PS: I happened to be an unemployed hairdresser from Peoria. Don't want anyone to get the wrong idea here.

Attorney. Hairdresser. I personally fail to see the difference.

But how I could mistake Peoria for New York is a bit of a puzzle. I guess I was low on caffeine. Sorry.

 

[Paul84]

This is so incredibly fact-specific that it is near pointless to answer, but generally, investigators are permitted to speak to witnesses and obtain whatever statements they are able. The admissibility of these statements still depends on compliance with the FRCP and the mere fact that the investigator did not disclose which party employed them certainly may be raised in an a motion in limine to bar the use of the statements in court. But unless there are some other grounds to keep them out, I doubt many courts will care who the PI worked for. (And to the extent there is some sort of constitutional argument being raised to prevent introduction of the statements, even assuming one exists, it is likely personal to the declarant and the opposing party would lack standing to raise the issue. No fruit of the poisonous tree doctrine in civil cases).

PS: I happened to be an unemployed hairdresser from Peoria. Don't want anyone to get the wrong idea here.

Thanks, You Are ... a Hairdresser (!). It's always great to hear from someone who has experience with splitting hairs

 

[tranquility]

If a law firm hires a private investigator to solicit information by interviewing individuals without disclosing that s/he (the investigator) is working on behalf of a law firm involved in an ongoing or prospective lawsuit, is information obtained by the investigator via these interviews admissible as evidence for that lawsuit?

General facts looking for specific answers are not going to be that useful. One problem I can think of if the investigator interviewed a represented opposing party. I suppose there could be others. (Though none off the top of my head.)