Archive for January, 2012

Key West Florida

Key West FL is the southernmost city in the Continental United States. Key West is a city and an island by the same name near the southernmost tip of the Florida Keys and encompasses the namesake island, the part of Stock Island north of US 1, Sigsbee Park and Sunset Key.

Many passenger cruise ships utilize Key West as a seaport. Key West International Airport also serves the area. Naval Air Station Key West offers a training site for Naval Aviation.

Key West is officially known for having the nation’s first and oldest continuous gay and lesbian chamber of commerce. Thus the city’s motto “One Human Family”

Kay West was inhabited by ancient peoples known as the Calusa People in Pre-Columbian times. Juan Ponce De Leon was the first European to visit the area and the island was known as Cayo Hueso. It was established as a fishing and salvage village with a small fort to protect the Spanish colony.

Cayo Hueso literally means “bone key” as it is said that the island is littered with the bones from an Indian battlefield or burial ground. It is thought that the name changed to Key West is an Anglicization of the word “Hueso” that could mean west in English. Many businesses on the island use the name.

Great Britain took control of Florida in the late 1700’s and relocated the Spaniards and Indians to Havana. Florida passed back to the Spanish 20 years later but they did not formally resettle. The island was used by fishermen from Cuba and joined by fishermen from the United States.

The island was deeded to Juan Pablo Salis in 1815 but when Florida was transferred to the United States Salas was eager to sell the island. First he sold it for a sloop valued at $575 and then to a US businessman named Simonton for about $2,000. The sloop trader sold it to a man named Geddes who could not secure rights to the property because Simonton had help from influential friends in Washington and gained clear title. Simonton bought the island because he had learned of the opportunities presented by the strategic location. Simonton’s friend John Whitehead, once stranded on the islands by a shipwreck had seen the deep harbor.

Lying 90 in a strategic location on the deep shipping lane Straits of Florida the harbor was considered the “Gibraltar of the West”. Matthew Perry said into the harbor in 1822 and physically planted the US flag to claim it as US property. He reported on the piracy problems and renamed it “Thompson’s Island” and named the harbor “Port Rodgers”. Neither name stuck. In 1823 Commodore David Porter took charge and tried to rule the island as a military dictator under martial law.

Simonton soon subdivided the island into plots and sold 3 undivided quarters of each plot to private individuals. Simonton spent the winter in Key West and then the summer in Washington to lobby for development of the island and for the establishment of a naval base. Among other first founders are Pardon Green who moved there permanently and became a prominent businessman. John Whitehead lived there for 8 years and partnered with Greene in the firm of “P.C. Greene and Company”. He left the island for good in 1832 returning only once during the Civil War. John Fleeming, active in the mercantile business in Alabama was a friend of Simonton. He spent only a few months in Key West before leaving to marry in Massachusetts. He returned to Key West intending to develop the slat manufacturing of the island but died soon after. The names of these founding fathers of modern Key West used as names for the main arteries of the island.

Many residents of Key West emigrated from the Bahamas. They were known as Counch. They arrived in ever increasing numbers after 1830. Sons and daughters of Loyalists fled to the nearest British soil during the American Revelation. Many of residents of Key West refer to themselves as Conchs and the term is now generally applied to all residents of Key West. The term “Fresh Water Counch” refers to a resident not “native born” but who has lived there for more than seven years. The name is derived from the tradition of placing a conch shell on a pole at the home of a new born baby.

“Bahama Village” is an area of Old town next to the Truman Annex largely inhabited by Bahaman immigrants.

Fishing, salt production and ocean salvage were major industries in the early 19th century. The salvage operations made Key West the largest and richest city in Florida and residents had a high concentration of fine furniture and fancy chandeliers which the locals used in their homes after taking them from shipwrecks on the Florida reefs.

During the Civil War Fort Zachary Taylor was established in Key West after Florida seceded and joined the confederate States of America. It was an important outpost and now contains the largest collection of Civil War cannons ever discovered in a single location.

In 1912 Key West was connected to the Florida mainland via the Overseas Railway extension. The railway created a landfill at Trumbon Point for rail yards. In 1935 the Labor Day Hurricane destroyed much of the railroad and hilled hundreds. About 400 World War I veterans living in camps there working on federal road projects and mosquito control projects in the Middle Keys were also killed. It was too expensive to restore the railroad. In 1938 The Federal Government rebuilt the rail lines as an automobile highway. Completed in 1938 it became an extension of the US Highway 1. The portion of US 1 running though the Keys is called the Overseas Highway.

Numerous artists and writers have come to the Keys but the two most associated with the island are Ernest Hemmingway and Tennessee Williams. Hemmingway reportedly wrote 2 novels “A Farewell to Arms” and “To Have and Have Not” while living in the Keys. The Ernest Hemingway House and Sloppy Joes Bar have become important tourist’s attractions. The Hemingway House is currently inhabited by six or seven toed polydactyl cats descended form Hemingway’s original pert named “Snowball”. The cats live on the grounds and are cared for by the Hemingway House even though the USDA complains about the number of them housed there. The Key West City Commission exempted the house from a law prohibiting more than four domestic animals per household.

Tennessee Williams is said to have written the first draft of “A Streetcar Named Desire” while staying at the La Concha Hotel. He bought a permanent house and listed Key West as his permanent residence. Williams’ home in the “unfashionable” New Town neighborhood is quite the contrast to the elegant Hemingway house. It is a very modest bungalow. The house is privately owned and is not open to the public. The Tenn4essee Williams Theatre is located on the campus of Florida Keys Community College on Stock Island.

Key West is much closer to Havana than to Miami. In 1890 it had a population of nearly 18,800 which made it the richest and biggest city in Florida. The population was nearly half Cuban descent and the city had a succession of Cuban mayors. Cubans were reportedly active in nearly 200 factories in town producing cigars.

The Battleship Maine was blown up after sailing from Key West to Havana which ignited the Spanish American War.

Pan American Airlines was founded in Key West to fly visitors to Havana.

John Kennedy used the phrase “90 miles to Cuba” in his speeches against Fidel Castro.

There were regular ferry and airplane services between Key West and Havana until the revelation in 1959. Refugees flooded into Key West during the Mariel Boatlift and continue to come across the dangerous stretch of waters.

In 1982 Key West and the rest of the Keys tried to declare independence and become the “Conch Republic” in a protest over US Border Patrol blockades. The blockade was set up in response to the Mariel Boatlift. This blockade created a 17 mile traffic jam when the Border Patrol stopped every car to search for illegal immigrants. The Florida Keys were virtually paralyzed as tourism nearly ground to a halt. Couch Republic flags and T shirts are still popular souvenirs for visitors. The Counch Republic Independence Celebration is celebrated each April 23.

Key West was always an important military post. At the beginning of World War II the Navy built the first water line extending the length of the Keys to serve the Naval Air Station. The main facility on Boca Chica is where the navy trains pilots. There are 3400 civilians and 16oo active duty military personnel along with family members. The area next to the old For Taylor became a submarine pen and was used for the Fleet Sonar School.

Kamyar Shah

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Posted by mark - January 31, 2012 at 7:03 pm

Categories: Founding Fathers   Tags: , , , , , , , , ,

Clawback Agreements in Commercial Litigation – Can You Unring a Bell?

Imagine this scenario: Woe Mart, Inc. – a multibillion dollar corporation – is deep in disputes with suppliers. Woe Mart’s General Counsel is trying to negotiate a settlement to avoid litigation. One day, Woe Mart gets notice from the suppliers’ lawyers of a suit to be filed in federal court along with a request to preserve any/all evidence, including electronic evidence. Woe Mart decides to hire a brilliant, seasoned litigator to defend against this frivolous lawsuit. Naturally, you get the call! You haven’t reviewed any documents, but your chat with Woe Mart’s General Counsel tells you this is a high stakes, multi-party complex commercial case. The first thing you do is have Woe Mart’s General Counsel email all employees instructing them to suspend all document destruction and institute a litigation hold. Next, you meet with Woe Mart’s IT personnel. Being the seasoned litigator, you are aware that discovery disputes are the black holes of complex commercial litigation. Woe Mart’s IT personnel inform you that they possess many types of electronic data that may be subject to discovery: email and attachments, word processing documents, spreadsheets, presentation documents, graphics, animations, images, audio, video and audiovisual recordings, instant messaging and voicemail. After a preliminary review, you realize that responding to discovery requests is a Herculean task – both in effort and cost.

Soon you are in a Rule 26(f) conference with opposing counsel. You discuss a discovery plan and try to agree with them on the repositories of electronically stored information that are relevant to the case. During discussion, opposition tells you they’ll serve discovery requests seeking copies of all emails sent or received by any employee concerning Woe Mart’s suppliers. If they insist on this, it will take months to review the emails for applicable privileges and protections. Opposing counsel proposes that you forgo preproduction review and produce all data under a “Clawback Agreement (CA).” You decide to discuss this with Woe Mart’s General Counsel and promise opposing counsel that you will get back to him. Before calling General Counsel, you decide to brush up your knowledge about CAs in federal courts.

CAs evolved as a safeguard against inadvertent waiver of attorney-client or work product privilege – especially when dealing with a large volume of documents. In a CA, both parties agree in writing that inadvertent production of privileged materials will not automatically constitute a waiver of privilege. If the producing party realizes the disclosure in a reasonable time, he can request the document’s return, or “claw it back” and the other party must comply. The other party is barred from using the privileged document to further his client’s case.

Federal Rules of Civil Procedure were amended to provide for this clawback scenario. The Federal Rules of Evidence appear to follow suit. However, parties (with the apparent encouragement of courts) have been using CAs to clawback the inadvertent disclosure of privileged material even before the amendment of the Federal Rules. The general rule that partial disclosure on a subject will bring in its wake total disclosure can be avoided by entering into a contract. Courts are willing to enforce partial waiver between two parties, whereby the waiver of some privileged materials will not constitute waiver of all between the two parties.

During your research on CAs, you come across a case that jolts you – Victor Stanley, Inc. v. Creative Pipe, Inc. Stanley highlights the danger of not using a CA. In Stanley, defendant’s counsel, acknowledging the vast volume of documents to be produced, initially requested that the court approve a CA. The court was willing, but upon obtaining a time extension to produce documents, defendant’s counsel withdrew his request for a CA. Parties did not enter into a CA prior to discovery production. Unfortunately, defendant’s counsel erroneously produced documents that were within parameters of privilege and should have been withheld. The court ruled that defendant’s counsel was aware the case involved review of voluminous material and that there was a danger of inadvertent production of privileged info. The court also observed that the defendant’s counsel had initially wisely sought the protection of a CA. Had the defense not abandoned his request for a court-approved CA, he would have been protected. However, having abandoned the request for a CA, the defendant’s counsel waived any privilege for these documents. Once the disclosure of privileged material is made, any order issued to redress the disclosure – in absence of a CA – would be the equivalent of closing the barn door after the animals have run off. After reading the Stanley opinion you make a note to include CAs as a standard tool in your litigator’s toolbox.

However, upon doing further research you find out that CAs may not be the right answer in every situation. A CA, despite all its protective clauses, can’t guarantee against privilege waiver in other litigation contexts. Courts have rejected parties’ claims of privilege pursuant to protective agreements from prior litigation. In Genentech, Inc. v. U.S. International Trade Commission,  the plaintiff inadvertently disclosed 12,000 pages of privileged documents in a multi-district patent infringement suit. After the district judge held that privilege as to those documents had been waived, the administrative law judge presiding over another patent suit involving Genentech and different defendants ruled that the privilege waiver extended to that proceeding. Genentech argued that no general waiver applied to the second case because the parties to the district court case had been subject to a protective order. Because the appeals court determined that Genentech had failed to use adequate procedures to review for privilege in the first action, the court’s finding of waiver in the second proceeding was sustained.

Also, CAs will be of little help if used to offer selective waivers. This is where a party is willing to disclose privileged information to one party, for example a governmental agency, and not to other parties. Federal courts – including the Sixth Circuit– have struck down selective waivers (even when unconditional confidentiality agreements are entered into prior to the disclosure). Although some decisions have held that entering into an unconditional confidentiality agreement might, under some circumstances, protect the materials from subsequent compelled exposure, litigators shouldn’t bank on this. As the court in Navajo Nation v. Peabody Holding Co, upbraiding a party for strategic use of disclosures, held: “Parties should not be permitted to disclose documents for tactical purposes in one context, and then claim attorney-client privilege in another context.” 

Now you pause. You wonder about a strategic dilemma of using CAs. It is impossible for the receiving lawyer in such an arrangement to erase from memory the privileged material that he glimpsed. Can you unring a bell? Regardless of whether a court decides to enforce a CA, the fact remains that the receiving attorney has been exposed to privileged information and may still be able to use it to further his client’s case. Even if that attorney does not formally seek to enter an inadvertently disclosed document into evidence, he can use the information contained therein as a springboard to related documents or testimony. In effect, you fear that you may very well assist your opponent in developing his trial plan.  This however is a matter of strategy and a decision to use or not use a CA would have to be made on a case by case basis.

Your research also tells you that there is a danger that use of a CA in federal litigation may be deemed as a waiver of the privilege in subsequent state court litigation.  Clawback provisions in the Federal Rules, while respected in federal courts, may be deemed a common law waiver of privilege in state courts – not only for the document in question but also as a broad waiver of the subject matter involved.  Therefore, care must be taken to identify the controlling law in each jurisdiction.  You decide to find out the controlling law in your state – Michigan.

Michigan has recognized the attorney-client privilege as “the oldest of the privileges for confidential communications known to the common law.”  It has long held that a waiver of the privilege does not arise by accident.  Michigan courts have set forth principles explaining privilege and its waiver:

(1) In Michigan the attorney-client privilege has a dual nature – it includes both the security against publication and the right to control introduction into evidence of such information;

(2) This dual nature of the privilege applies where there has been inadvertent disclosure of privileged material;

(3) An implied waiver of the privilege must be judged by standards as stringent as for a “true waiver,” before the right to control the introduction of privileged matter into evidence will be destroyed, even though the inadvertent disclosure has eliminated any security against publication;

(4) A “true waiver” requires an intentional, voluntary act and cannot arise by implication or the voluntary relinquishment of a known right and

(5) Error of judgment where the person knows that privileged information is being released but concludes that the privilege will nevertheless survive will destroy any privilege.

You are happy to note that in Michigan a document “inadvertently” produced that is otherwise protected by the attorney-client, privilege remains protected. Absent a “true waiver,” a document retains its privileged status, regardless of whether it has been publicly disclosed. You happily note that unlike some federal courts, Michigan courts have held that counsel’s failure to take reasonable precautions to protect from inadvertent disclosure of privileged or protected material is not enough to be a true waiver.

However, you are troubled by the fact that in Michigan, once privileged info is disclosed to a 3rd party by the one who holds the privilege, privilege disappears. Privilege need only be validly waived once to be conclusively destroyed. Unfortunately, no Michigan case discusses a CA.

Also, you find that in Michigan “involuntary disclosure” of info by court order doesn’t amount to waiver of privilege.  You finally see light at the end of the tunnel. You decide the best option is for the parties to agree to a CA and then request the court to incorporate the clawback provisions into a scheduling or protective order. However, you make sure that your participation in drafting the protective order is not interpreted in any manner as a waiver of privilege.

You now turn to the issue of protective orders. You are aware of the recent amendments to the Federal Rules of Civil Procedure whereby clawback provisions can be adopted and incorporated into a protective order. Protective orders – often negotiated by the parties and entered by the court on a stipulated basis – have become commonplace prior to producing documents in discovery. In complex commercial litigation, it is not unusual for a court to enter a detailed protective order fleshing out all the contours for production and exchange of information, including inadvertent disclosure of privileged material. Three rules potentially govern the entry of such protective orders: the court can issue a scheduling order under Fed. R. Civ. P16; a protective order under Fed. R. Civ. P26(c); or a discovery management order under Fed. R. Civ. P26(b)(2). You correctly reason that having a CA provision incorporated into a protective order would allow your client to contend in a later proceeding that disclosure of privileged/protected info in the former case was involuntary and pursuant to court order. Where there is a protective order in place, courts have allowed the terms of the protective order to trump existing case law – in some cases, a protective order may operate to change the effect of unforgiving case law.

Of course, being an experienced litigator, you are also aware that the existence of a protective order does not allow a privilege holder to sit on its right to retrieve the privileged document. A cavalier attitude or failure to act promptly to retrieve the document may nullify any CA.

Having researched federal case law on CAs and having found little on this in Michigan, you review your options. You are aware that federal courts have continued to encourage the use of CAs in commercial litigation – more so after the rules were amended. It is highly likely that your court would agree to a proposal of incorporating CA provisions in a protective order to speed up discovery. Without a CA, you are faced with an exhaustive and complete pre-production review of physical and electronically stored documents with privileged material. You know this would be time consuming, expensive, and unrealistic. Even then, prudence mandates that you utilize the safety net of a CA for any inadvertent disclosures. Finally, you distill the essential rulings of the federal courts regarding the CAs, juxtapose them against existing Michigan jurisprudence and come up with three conditions that should protect your inadvertent disclosure from a challenge in your current federal litigation or any future state litigation: (a) the party claiming the privilege took reasonable steps – in view of the volume of data to be reviewed, the time permitted in the scheduling or protective order to do so, and the resources of the producing party; (b) the producing party took reasonable steps to assert promptly the privilege once it learned that some privileged information inadvertently had been disclosed, despite the exercise of reasonable measures to screen for privilege and, importantly; (c) the production had been compelled by court order that was issued after the court’s independent evaluation of the scope of electronic discovery permitted, the reasonableness of the procedures the producing party took to screen privileged material and the amount of time that the court allowed the producing party to spend on production. 


You surmise that a properly drafted CA that has been incorporated into a court order would achieve its goal: unring a bell in case of an inadvertent disclosure. You are now ready to call the General Counsel.

For resources/citations, see this article on our website at

Ashish Joshi

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Posted by mark - January 1, 2012 at 2:35 pm

Categories: Rule of Law   Tags: , , , , , , , , , , ,