Claims and Bad Faith Law Blog

Eight Circumstances for Excess Liability in Settlement: ...

... Comparing Limits, Liability, and Damages.

Another case involving small limits, great liability, and great damages is Young v. Hammer, Hewitt, Jacobs & Floch, PLLC, 405 Mont. 65, 491 P.3d 725, 2021 MT 180 (Mont. 2021).  That is "a legal malpractice case for failure to file a timely claim with an insurer" filed by Mary-Ann Young and her daughter Autumn Rose against the law firm which represented them on their bodily injury claims.

Ultimately the Montana trial court and the Montana Supreme Court agreed that Young and her daughter lost nothing, holding that there was no insurance coverage for their underlying claim.

Eight circumstances for excess liability in settlement are explored in an investigation of the decided case law in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 3:36-3:44 (3d edition West Publishing Co., 2022 Supplements in process).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

"UNIVERSAL LIFE INSURANCE POLICIES" DEFINED (AT LEAST THOSE AT ISSUE).

Ever wonder about Universal Life Insurance?   A painstaking definition of at least the UL policies at issue has been given by the District Judge in Adv. Trust & Life Escrow Serv's, LTA v. N. Am. Co. for Life & Health Ins., ___ F. Supp. 3d ___, No. 4:18-cv-00368-SMR-HCA, 2022 WL 883750, at *1 (S.D. Iowa March 22, 2022):

    Universal life insurance is a type of permanent life insurance. Contrasted with standard term life insurance, the Class Policies [i.e., the 2 policies issued by Defendant North American before the Court in this putative class action] combine a death benefit with an investment, savings, or interest-bearing component (“Savings Component”). Typically, life insurance policies such as the Class Policies deposit premium payments into the Savings Component and the insurer will deduct policy-authorized monthly charges. The Class Policies are flexible-premium policies, meaning there is no fixed monthly premium the insured must pay to keep their policy active, aside from the specified monthly charges. If the funds in the policy account are insufficient to pay these monthly charges, the policy will go into grace and lapse after the grace period expires.

Clearly, a universal life insurance policy is not your father's CGL.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

P.S. Another FEDERAL COURT DECLARING STATE INSURANCE FILED RATE DEFENSE.

This is a postscript to the article posted here on Monday, March 21, 2022.  We apparently have more federal court rulings of state filed insurance rate defenses to look forward to.

          The Second Circuit has been one of the most emphatic advocates of federal courts declaring state filed insurance rate doctrine.  In a recent iteration of their view, a panel of the Second Circuit rejected the plaintiff-appellant's resort to state insurance law to resolve the state's filed insurance rate doctrine:

    Finally, [plaintiff-appellant] contends that the district court failed to apply Connecticut law, which he asserts has not adopted the filed rate doctrine. We have repeatedly held, however, that the filed rate doctrine precludes both federal and state claims.

Lewis v. M&T Bank, No. 21-933, 2022 WL 775758, at *3 (2d Cir. March 15, 2022).

          Here's what they were really saying in their last sentence quoted above:

We have repeatedly held, however, that the [federal] filed rate doctrine precludes both federal and state claims.

(Emphasis added.)

This works out in reality to mean, of course, that federal judges know best, and in this case, that means that the federal filed rate doctrine preempts all state law on filed insurance rates.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

NO MORE federal INSURANCE RATE DECISIONS, PLEASE.

Even when a federal court recognizes that states regulate insurance and that as a result the filed rate defense depends on state law in an insurance case, a federal court has been known to apply the federal filed-rate doctrine which it is used to.

          In such a case, federal courts have declared unquestioningly that the state filed insurance rate doctrine is identical to the federal filed-rate defense and apply the federal doctrine without citing a single case from the courts of the state in question.

          Such was the case, for example, in Leo v. Nationstar Mort. LLC, 964 F.3d 213 (3d Cir. 2020).

 

Filed insurance rate issues are discussed in Dennis J. Wall, § 2:17, in John K. DiMugno, Steven Plitt, and Dennis J. Wall, Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters Nov. 2021 ed.).  They will also be addressed in the forthcoming § 11:26.50, tentatively titled Insurance cases and the filed rate doctrine in 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (West 3d ed., 2022 Supplements in process).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

GODSPEED, BOB HUNTER

After half a century of distinguished public service including positions as Director of Insurance at the Consumer Federation of America, and as a member of and contributor to the National Association of Insurance Commissioners, and as the Texas Insurance Commissioner, Mr. J. Robert "Bob" Hunter is retiring.

          I was not aware of all of his many accomplishments until now, when he is retiring.  Here's a brief look at the highlights of Bob's public service record:

1971:  United States Federal Insurance Administrator.  Bob would lead the Federal Insurance Administration first under President Carter, then under President Ford.

1980:  Bob founds the National Insurance Consumer Organization (NICO) and becomes its head in 1982.

1995:  Bob transitions into a post in which he would serve for the next 27 years:  Director of Insurance, Consumer Federation of America (CFA).

1980 through now:  Bob never asked for compensation over his more than 40 years of work with NICO and CFA.

Along the way, Bob served as Texas Insurance Commissioner.

          That is enough.  That is probably already more than Bob would want to have said about him, being a humble person.  This tribute will be short because he would want it that way.

          His professional career showed his enduring belief in the wisdom of insurer good faith.

          Godspeed, Bob Hunter.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

TRAVEL INSURANCE CLAIMS UNDER THE MICROSCOPE: BAD FAITH CLAIMS COMING?

"While travel insurance is becoming more ubiquitous, getting a timely response to a claim remains a challenge."  Elaine Glusac, As Omicron Subsides, Travel Insurance Claims Crawl / An increase in claims has slowed down the vetting and approval process, NEW YORK TIMES, Mon., March 14, 2022, at B2.

          Two developments addressed in this article, and the way they are addressed, signal the likely onset of bad faith claims to come.  First, the article centers on how long it takes for travel insurance claims to be paid.  One of the claims featured in the article "took nearly two months" to get paid, and the article quotes travel agents including one who is quoted with the observation that travel insurance claims "'that typically used to be paid in under two months are now taking as much as five or more months.'"  Elaine Glusac, NEW YORK TIMES, supra.

          Parenthetically, after 44 years of handling insurance bad faith claims my reaction to a claim taking two to five months to get paid is that those claims are actually getting paid pretty fast.  But perception is everything, and if the prevailing perception of policyholders and travel agents and brokers of travel insurance policies is that travel insurance claims are slow getting paid, then insurance bad faith claims will likely not be very long in coming.

          The second development reported in this article is that many players in the travel industry are arranging for travel insurance or are offering it themselves.  The Marriott hotel conglomerate is an example of arranging travel insurance for their customers; the article reports that in January 2022,  "Marriott hotels teamed up with the insurer Allianz to offer travel insurance."  Elaine Glusac, NEW YORK TIMES, supra.  As an example of travel-related companies offering travel insurance themselves, the article mentions that Airbnb has plans to do so.

          All in all, then, given the expanding use of travel insurance especially in a pandemic and given the apparent public perception that it is taking too long to pay travel insurance claims, bad faith claims are not far away.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

CAN INSURANCE BAD FAITH SURVIVE "A CONGERIES OF" JUSTICES?

Some say that the current majority of the U.S. Supreme Court has a tendency to reach a chosen result regardless of the law.  Some even call them the Gang of Six.

          Whatever they may be, something they have recently done, or more accurately, something that four of them have done, caught my eye.  What they did came in the case of Moore v. Harper, 595 U.S. ___, No. 21A455, 2022 WL 667937 (U.S. March 7, 2022), in which a majority of the Court denied an application by the North Carolina Speaker of the House and some of his colleagues to stay the ruling of the North Carolina Supreme Court that the Congressional districts drawn by the North Carolina Legislature violated various provisions of the North Carolina Constitution.

          The four U.S. Supreme Court Justices were led by Justice Samuel Alito who wrote a dissent joined by Justices Clarence Thomas and Neil Gorsuch.  The fourth Justice, Brett Kavanaugh, concurred in the denial of the stay but agreed with the others that the Court should review the districting issue on the merits when and if a petition for certiorari is ever filed in the future.

          The reasoning of the four reached only one of the four reasons that Justice Alito listed for the result in the North Carolina Supreme Court, which were, he wrote, "a congeries of state constitutional provisions."  The provisions of the North Carolina Constitution which were violated by the districting conduct of the North Carolina Legislature were Equal Protection of the Laws including No Discrimination By the State Because of Race, Color, Religion, or National Origin; Freedom of Speech and of the Press;  Freedom to Assemble and to Petition for Redress of Grievances; and that "[a]ll elections shall be free."  To say again, the four U.S. Supreme Court Justices addressed only one of these.[1]

          The one provision of the North Carolina Constitution which they addressed was the only one of these provisions that has no direct counterpart in the United States Constitution, namely, the provision that all elections shall be free, N.C. Const. art. 1, § 10.  In addressing this one provision, the four took the position that the North Carolina Legislature presented a "stronger" argument than the North Carolina Supreme Court partly because this was really a question of Federal law which, they implied, preempts State Constitutions in respect to how the laws are carried out in the States including, in this case, drawing districts in which to vote for candidates for Congress.

          This raises a question that is still playing out in my mind:  If a current majority of the U.S. Supreme Court decides that insurance bad faith cases and claims, which are all creatures of State law, should somehow be prevented or regulated, how would they do it?  Well, I know how they would do it, I suppose, but what would they say were the reasons they did it?

          It is not a huge leap at all in my mind, from interfering with State Constitutions and State Supreme Court decisions, to interfering with State Courts which in many cases have fashioned new causes of action for insurer bad faith.  For that matter, it is not a far distance to interfere with State Legislatures which have enacted statutory provisions for remedies that can be claimed against alleged insurer bad faith.

          So, what might they say?  Perhaps they would rule on the pretext of Interstate Commerce.  There may be an argument that insurer bad faith cases affect the business not only of insurance companies operating across State lines, but of other companies as well.  These can include business policyholders, or interstate businesses providing claim-related services such as adjusting.

          Or perhaps they might rule on the pretext of Due Process.  State insurer bad faith causes of action may deprive corporations of their asserted "right" to arbitrate rather than litigate such claims.  Or perhaps it could be so argued.

          Or perhaps on the pretext of Equal Protection.  The argument might be accepted that the States have only made special causes of action available against insurance carriers, and by and large the States have not made special causes of action available against policyholders.

          There are many possibilities in a congeries[2] of possibilities, to refashion a phrase chosen by Judge Alito in the Moore case, supra, in which he wrote to announce that he would have stayed the North Carolina Supreme Court's decision that the North Carolina Legislature violated provisions of the North Carolina State Constitution.  As we have seen from recent events, there is more to come whether we expect it or not, and at this point, whether we like it or not.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

 

[1] Without distracting from the focus here, it is worth noting that the North Carolina Supreme Court's decision involved "strict scrutiny" under the North Carolina Constitution of the North Carolina Legislature's districting maps in this case.  The majority of the North Carolina Supreme Court held that what the majority called the Free Elections, Equal Protection, Free Speech and Freedom of Assembly provisions in the North Carolina Constitution convey fundamental rights.    Harper v. Hall, ___ S.E.2d ___, No. 413PA21, 2022-NCSC-17, 2022 WL 496215, at ¶ 179, p. *42 (N.C. Feb. 14, 2022).  Together, these provisions of the North Carolina Constitution convey a further fundamental right:   "The right to vote on equal terms is a fundamental right in this state[.]"  Harper v. Hall, 2022 WL 496215, at ¶ 181, p. *43.  The second part of the strict scrutiny test applied in North Carolina requires a compelling State justification for its action.  There was no compelling justification here, the North Carolina Supreme Court ruled:  "Partisan advantage, however, is not a compelling governmental interest."  Harper v. Hall, 2022 WL 496215, at ¶ 181, p. *43.

[2] I looked up the word, "congeries," not because I did not necessarily know what it means but because applying an old tactic I wanted to learn what might be in Justice Alito's mind when he wrote it.  Webster's defines "congeries" as an aggregation or collection.  Among the synonyms given by Roget's Thesaurus are "mass," "lump," and "amassment."  Interesting word to describe fundamental rights, "a congeries" of State Constitutional provisions that went unaddressed in Washington.

P.S. Re: Mr. Eastman's Claim of Attorney-Client Privilege.

P.S.

You Need A Client To Claim The Attorney-Client Privilege.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

FILE A COUNTERCLAIM, SELECT COMMITTEE, BEFORE MR. EASTMAN VOLUNTARILY DISMISSES ...

... THE LAWSUIT HE SO ERRONEOUSLY FILED.

John Eastman, Esquire was served with a subpoena to give testimony to the U.S. House Select Committee to Investigate the January 6 Attack on the Capitol. Mr. Eastman not only refused to testify, he sued the Committee along with others including the Committee Chair, in California. See Eastman v. Thompson, (C.D. Cal. No. 8:22-cv-00099 (DOC/DFM)).

(Perhaps taking a cue from ordinary civil litigation, Mr. Eastman may have thought that filing suit in California would be a burden on the defendants, who work in Washington, D.C., if they had to defend a lawsuit in California. If Eastman and his lawyers did think that, then they overlooked the fact that they were suing a Committee of the United States House of Representatives and the Chair of that Committee, a United States Representative.)

Mr. Eastman sued to quash the Committee's subpoena duly served upon him, once the process server found him. If Eastman had simply refused to testify, that would have forced the Committee to vote to hold Eastman in contempt of Congress, then obtain a vote of the entire House holding Eastman in contempt, and then make a referral to the Justice Department. So far, there is only one other time that the Justice Department has acted on a contempt of Congress referral from the Select Committee, and that is in the case of Mr. Steven Bannon. The judge set trial in that case for July.

Instead, Mr. Eastman's case is coming to a Hearing much sooner than that, and frankly his prospects look dismal. If he had only waited, perhaps he could have dragged things out for a very long time before a judge ever ruled on Mr. Eastman's objection. Mr. Eastman objects to the subpoena because he claims attorney-client privilege. His reasoning appears to be that he is an attorney and so everything that he has to say is privileged.

A problem here is that Mr. Eastman did not have a client leading up to the January 6 Attack on the Capitol. Only a client can claim the attorney-client privilege. If there is no client, there is no attorney-client privilege. You need more than an attorney, which Mr. Eastman is, an attorney. He still needs a client to raise the attorney-client privilege.

Even if you get past that obstacle, there is also the further matter of at least one exception to the attorney-client privilege even when it applies: the crime-fraud exception. We will address that more fully in another article, but suffice it to say here that the Select Committee filed papers with the Court in California that events leading up to the January 6 Attack and afterward may subject the former guy's campaign to criminal liability or liability for a fraud, and that Mr. Eastman allegedly knew this, and that Mr. Eastman allegedly participated in this plan.

In other words, Mr. Eastman's advice would have been given in connection with committing a crime or perpetrating a fraud, and in that case Mr. Eastman could not claim the attorney-client privilege even if an attorney could claim that privilege (which only a client can claim, and Mr. Eastman does not appear to contend that he was his own client in this matter).

There does not appear to be a good reason why Mr. Eastman filed this lawsuit in the first place. I just reviewed the electronic docket of Mr. Eastman's case on PACER (Public Access to [Federal] Court Electronic Records) and I did not find a Counterclaim filed by the Defendants. Without giving legal advice, I highly recommend based upon experience in civil litigation that the Defendants file a Counterclaim immediately. That should prevent Mr. Eastman from unilaterally filing a Notice of Voluntary Dismissal and getting the entire lawsuit dismissed.

That is, filing a Notice of Voluntary Dismissal if he comes to his senses.

Please read the disclaimer. ©2022 Dennis J. Wall. All rights reserved.

 

DOMINATING THE DATA: BIG HEALTHCARE COMPANIES WANT TO BUY SECRETS.

The U.S. Department of Justice, joined by the States of Minnesota and New York, have together raised the prospect of a UnitedHealth Group subsidiary buying a health tech company for the purpose or with the effect of buying its secrets.  See Download USA State of Minnesota and New York State v. UnitedHealth Group Inc. Complaint Doc. 1 filed Feb. 24 2022 (D.C.D.C. No. 1.22.cv.00481).

In discovery confidentiality litigation, large companies are consistent in fighting to keep their secrets including whether they have been sued and how many times for bad faith, for example.

In this case, UnitedHealth is accused of buying secrets:

1. The Complaint against Optum, the UnitedHealth Group subsidiary set to acquire Chicago Healthcare, "a company that offers technology services to insurers," David McCabe, Justice Dept. Sues to Block Deal By UnitedHealth Worth $13 Billion, NEW YORK TIMES, Friday, February 25, 2022, at B6, expresses the governments' concern that when Chicago Healthcare gathers data during the course of helping to "process insurance claims," UnitedHealth as its owner will be able to see the procedures used in processing claims by competing insurance carriers who pay Chicago Healthcare for its claims data services.

This is significant and real, not unimportant or theoretical.  "The lawsuit claims that, according to a UnitedHealth estimate, more than half of American medical insurance claims 'pass through (or touch)' Chicago Healthcare's systems."  David McCabe, NEW YORK TIMES, supra (emphasis added).

2. The Complaint further alleges the governments' concern that UnitedHealth could steer Chicago Healthcare's systems away from UnitedHealth's competitors, or even bar the competing insurance companies from buying those systems, if UnitedHealth is allowed to buy Chicago Healthcare.  This has the clear potential to become a significant competitive advantage in the healthcare insurance industry, especially during a pandemic.
3. The Complaint also alleges that UnitedHealth could end up with a monopoly if this acquisition is allowed to proceed. The resulting monopoly would be over Chicago Healthcare's "type of service that was used to screen insurance claims for errors and speed up processing."  David McCabe, NEW YORK TIMES, supra,

The case has been assigned to Judge Carl Nichols.  A former clerk of Supreme Court Justice Clarence Thomas, he was appointed to the federal bench in 2019.  Since then he has also been assigned to oversee the contempt citation case against Steve Bannon, which has been set for trial in July, 2022.

In the last sentence of the judge's standing order in civil cases, he says:  'The parties shall not file a discovery motion without leave of Court."  Download J. Carl Nichols D.C.D.C. Standing Order.  Putting aside the question of whether this kind of blanket ruling is even valid, it is hard to imagine an antitrust case like this one without lots of discovery.  There are likely to be lots of requests for "leave of Court" to file discovery motions concerning the discovery disputes that will pile up in the future.

Here's hoping they are resolved faster than the contempt citation against Steve Bannon.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ELECTRONICALLY STORED INFORMATION (ESI), AMAZON, AND MODEL ORDERS.

In Crosby v. Amazon.com, Inc., No. 21-1083-JCC, 2022 WL 522953 (W.D. Wash. Feb. 22, 2022), the plaintiffs successfully challenged the use of a U.S. District Court's Model Agreement And Proposed Order, and lived to tell the tale.

The plaintiffs challenging Amazon in the Crosby case are individuals.  They could not agree with Amazon on what a court order should say to regulate the production and handling of Electronically Stored Information (ESI) in that case:

The parties have been unable to come to an agreement whether to adopt, without modification, the District's model agreement governing Rule 34 production of electronically stored information (“ESI”). See [MODEL] AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND [PROPOSED] ORDER, available at https:// www.wawd.uscourts.gov/court-forms.

Crosby v. Amazon.com, 2022 WL 522953, at *1.

The District Court granted the plaintiffs' motion to modify the Western District of Washington's Model Agreement and Proposed Order, in part.  At the plaintiffs' request, the Court added ten additional search terms and granted the plaintiffs' request for an "expanded timeframe."  Crosby v. Amazon.com, 2022 WL 522953, at *1.

The rest of the plaintiffs' requests were denied.  Thereafter, the Court entered a detailed order accordingly, see Crosby v. Amazon.com, 2022 WL 522953, at *2-*5, during the course of which the Court set forth a compelling justification for its actions:

1. General Principles

1. An attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.

Crosby v. Amazon.com, 2022 WL 522953, at ¶1, p. *2.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

THE CONSTITUTION PRESUMES THAT THE PUBLIC CAN ACCESS COURT DOCUMENTS!

I welcome the invitation of the American Constitution Society and Barry Law School to speak at the Seventh Annual Constitutional Law Scholars Forum on Friday, February 25th.  I will be speaking about the Constitution's Presumption of Public Access to Court Files.  The Forum is presented free and online this year, as it was last year.

Join the Forum online!  The Forum is being broadcast from Barry Law School in Orlando, here!  It's free and open to everyone!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

PUBLIC ACCESS TO COURT RECORDS PROTECTED BY THE U.S. CONSTITUTION!

I am grateful to the American Constitution Society and to Barry Law School for their invitation to speak at the Seventh Annual Constitutional Law Scholars Forum.  I will be speaking on Friday, February 25th about the Constitution's Presumption of Public Access to Court Files.  The Forum is presented free and online this year, as it was last year.

Join the Forum online!  The Forum is being broadcast from Barry Law School in Orlando, here!  It's free and open to everyone!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

POSTSCRIPT TO DURHAM DISCLOSURES.

Apparently, John Durham's office practices in front of federal judges who are not like any of the federal judges you and I may have practiced in front of.  Faced with a Motion to Strike allegations from his main pleading, Mr. Durham's Office did not respond.

Instead, they filed a Response all right, but they said they would respond in the future, just not right now:  "Indeed, the Government intends to file motions in limine in which it will further discuss these and other pertinent facts to explain why they constitute relevant and admissible evidence at trial."  USA v. Sussman, Government's Response to the Defendant's Cross-Motion to Strike, Doc. 40 at p. 2, filed Feb. 17, 2022 (D.C.D.C. Criminal Case No. 21-582 (CRC)).  Download USA v. Sussman USA's Response to Defendant's Cross-Motion to Strike Doc. 40 filed Feb. 17 2022 (D.C.D.C. Criminal Case No. 21-582 (CRC)).

It never occurred to me to tell a federal judge that she or he just has to wait for my Response, that's all there is to it.   Did it ever occur to you that you could get away with that?

It occurred to Mr. John Durham.  Or at least to someone in his office.  The pleading was signed by one Brittain Shaw, a relatively new player on the pleadings docket on PACER in this case.

Stay tuned.  More to come....

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

GENERAL OBJECTIONS IGNORED, COURT'S STANDARD STIPULATED PROTECTIVE ORDER OBSERVED.

Once again, general objections repeated endlessly in reply to specific discovery requests are not responses at all.  Stated differently, general objections are not given any attention by the courts whenever specific objections to discovery requests are required by the applicable rules.  See Dyno Nobel, Inc. v. Johnson, NO. 5:21-cv-00322-KKC-MAS, 2022 WL 507431, at *3 (E.D. Ky. Feb. 18, 2022) (Stinnett, USMJ).

Dyno was requested to produce documents in this Kentucky case that were subject to a federal court's standard stipulated protective order in use by the federal court where litigation is pending in Utah.  In this case, the Utah protection was provided in Kentucky as well.  Dyno Nobel, 2022 WL 507431, at *5.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DISCOVERY CONFIDENTIALITY WEBINAR TOMORROW!

It's a real joy and an honor to be invited to moderate the National Association of Consumer Advocates Discovery Confidentiality Webinar on Tuesday, February 22nd.  The Webinar has a fine, experienced panel that will address confidentiality orders used in litigation, Ariana J. Tadler and Jody Thomas Lopez-Jacobs.  NACA vets attendees at its Webinars, so Email training@consumeradvocates.org.  It's an exciting opportunity to share experiences and education!
 

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

JOIN THE ONLINE ACS CONSTITUTIONAL LAW FORUM ON FEBRUARY 25!

Honored to accept the invitation to speak on February 25 at the American Constitution Society's Seventh Annual Constitutional Law Scholars Forum.  I will be presenting on the Constitution's Presumption of Public Access to Court Files.

Join the Forum online at Barry Law School in Orlando, here!  It's free and open to everyone!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DURHAM DISCLOSURES.

Durham disclosures.  They may not be what you think.

On February 11th, Mr. Durham's office filed his Motion to Inquire Into the defense attorneys' Potential Conflicts of Interest.  U.S.A. v. Sussman, Motion, Doc. 35, filed Feb. 11, 2022 (D.C.D.C. Criminal Case No. 21-582 (CRC)).  It alleged dozens of times that the defense attorneys may have had "potential" and "possible" conflicts of interest that would disqualify them as counsel in the case.

Now any attorney that has filed a motion to disqualify opposing counsel, and I have, knows very well that the way to go is to file a motion to disqualify and meet your burden of proof.  If you cannot meet your burden of proof, you do not file a motion to disqualify opposing counsel.

Mr. Durham's office did not file a motion to disqualify opposing counsel.

The motion they filed is a distraction.  It is a distraction from Mr. Durham's previous filings that prosecuted the case against Mr. Sussman, if any, in motions allegedly filled with innuendo and deception.   This one does not cite cases that support any of the "potential," "possible" alleged conflicts of interest.

One case citation does have a glaring typo, however, that proofing would have found if the motion had been proofed.  Even a computer spell check would have picked up this one.  But perhaps this motion that was filed in federal court and submitted to a federal judge should not, in the end, be remembered for a typo in a case citation by a lawyer.  

There may be more to remember than that.  The prosecutor in Mr. Durham's office that signed this motion is one of a team of prosecutors that a federal judge says withheld evidence in another case.  The federal judge, the Hon. Alison Nathan, is a highly respected federal judge, appointed before January 20, 2017.  The federal judge wrote of Mr. Durham's current assistant that "repeated failures to disclose exculpatory evidence and misuse of search-warrant returns" were errors "so severe that following a jury verdict in [the Government's] favor," both parties requested the Court to vacate the jury verdict.  The Court "vacated the jury verdict and dismissed the charges" with prejudice.  USA v. Nejad, Order, Doc. 397, at 1, filed Feb. 17, 2021 (S.D.N.Y. Case No. 18-cr-224 (AJN)).  Download USA v. Nejad Order Doc.. 397 filed 02.17.21 (SDNY No. 18-CR-224 (AJN))-prosec-misconduct-opinion.

In the same Order, Judge Nathan urged "a full investigation by DOJ's Office of Professional Responsibility of all matters related to prosecutorial misconduct in this case."  Id. at 2.

After entering the February 17 Order, Judge Nathan entered another Order on the same date.  The second Order was filed on Feb. 22, 2021.  The Judge ordered that the prosecutors file declarations (affidavits) explaining their conduct and the prosecutors requested that their testimony be kept a secret.  See USA v. Nejad, 521 F. Supp. 3d 438 (S.D.N.Y. 2021).

Back to February of 2022.  Mr. Durham told the Court in his prosecution against Mr. Sussman that he, Mr. Durham, "would make future filings under seal if they contained 'information that legitimately gives rise to privacy issues or other concerns that might overcome the presumption of public access to judicial documents.'"  Charlie Savage, Durham Distances Himself From Right-Wing Falsehoods, NEW YORK TIMES, Friday, Feb. 18, 2022, at A18.

There you are:  Durham disclosures.   

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

WEBINAR ON DISCOVERY CONFIDENTIALITY, COMING UP!

 Readers, here is a link to the Discovery Confidential! page of my website.  Thanks.--Dennis Wall

 Click here for the Mobile/Web Version

Discovery Confidentiality February 22, 2:00 p.m. ET–3:00 p.m. ET Pricing Private Attorney Members: $40 Legal Aid and Public Interest Members: $30 Nonmembers: $90 (if you have not yet been approved to attend NACA webinars, you must email training@consumeradvocates.org to be vetted to attend) Are you interested in learning the methodologies of stipulated protective orders  proposed by defendants’ counsel in every case, large and small? The focus will be on federal court cases, but many of the same principles apply to state court cases, too. The webinar will include a discussion of standards for obtaining protective orders that the parties are bound to follow. This webinar will also provide tips and strategies to improve the pre-discovery stipulated protective orders that judges are most likely to enter in your clients’ cases. In addition, the speakers will examine typical provisions used in actual litigation.  This webinar is useful for practitioners at every level, from those who handle multi-district litigation to individual cases. What You Will Learn How to address negotiations over a stipulated protective order and how you can shape the best possible protections for your client What adversaries will likely propose in their pre-discovery umbrella and stipulated protective orders How to implement preemptive strategies, including judges’ model orders, local rules, and orders approved by the same judge or proposed by the same defendants in other cases Speakers Jody López-Jacobs is a consumer protection attorney based in Philadelphia.  Born in Lancaster, PA, Jody graduated magna cum laude from Temple University Beasley School of Law, where he served on the law review editorial board and won second place in an American Bar Association writing competition. After serving as a federal law clerk in the Eastern District of Pennsylvania, Jody joined the law firm Flitter Milz, PC, where he litigates individual and class actions involving repossessions, credit reporting, and financing fraud. Jody’s advocacy has resulted in millions of dollars in relief for consumers across the country. In 2021, Jody was named as one of Super Lawyers’ “Rising Stars.” Ariana Tadler is the founding partner of Tadler Law LLP, a WBENC-certified, women-owned boutique law firm that offers an array of litigation and legal counseling services. With more than twenty-seven years of experience advocating for consumers and investors against corporate fraud and abuse while litigating and managing securities, consumer and data breach class actions, and complex litigation, Ariana is considered one of the leading women litigators in the country. Ariana is regularly appointed by courts to leadership positions in large, complex federal, multi-district, and state coordinated proceedings because of her extensive experience managing complex litigation. Ariana is also recognized as one of the nation’s leading authorities on electronic discovery and pioneered the establishment of an e-Discovery Practice group within a plaintiffs’ firm structure more than fifteen years ago. Dennis Wall is an experienced litigator, mediator, and expert witness in Florida and federal trial and appellate courts. He is an AV- rated attorney and an elected member of the American Law Institute. He has personally litigated the issues addressed in this webinar. The author of four books, he is currently at work on a book about the presumption of public access to judicial and administrative records. He has dedicated a page on his website to resources on discovery confidentiality.   National Association of Consumer Advocates 1215 17th Street NW, 5th Floor, Washington, DC 20036 Phone: 202.452.1989 | Fax: 202.452.0099 Contact Us

WEBINAR NEXT WEEK: DISCOVERY CONFIDENTIALITY!

 Readers, here is a link to the Discovery Confidential! page of my website.  Thanks.--Dennis Wall

 Click here for the Mobile/Web Version

Discovery Confidentiality February 22, 2:00 p.m. ET–3:00 p.m. ET Pricing Private Attorney Members: $40 Legal Aid and Public Interest Members: $30 Nonmembers: $90 (if you have not yet been approved to attend NACA webinars, you must email training@consumeradvocates.org to be vetted to attend) Are you interested in learning the methodologies of stipulated protective orders  proposed by defendants’ counsel in every case, large and small? The focus will be on federal court cases, but many of the same principles apply to state court cases, too. The webinar will include a discussion of standards for obtaining protective orders that the parties are bound to follow. This webinar will also provide tips and strategies to improve the pre-discovery stipulated protective orders that judges are most likely to enter in your clients’ cases. In addition, the speakers will examine typical provisions used in actual litigation.  This webinar is useful for practitioners at every level, from those who handle multi-district litigation to individual cases. What You Will Learn How to address negotiations over a stipulated protective order and how you can shape the best possible protections for your client What adversaries will likely propose in their pre-discovery umbrella and stipulated protective orders How to implement preemptive strategies, including judges’ model orders, local rules, and orders approved by the same judge or proposed by the same defendants in other cases Speakers Jody López-Jacobs is a consumer protection attorney based in Philadelphia.  Born in Lancaster, PA, Jody graduated magna cum laude from Temple University Beasley School of Law, where he served on the law review editorial board and won second place in an American Bar Association writing competition. After serving as a federal law clerk in the Eastern District of Pennsylvania, Jody joined the law firm Flitter Milz, PC, where he litigates individual and class actions involving repossessions, credit reporting, and financing fraud. Jody’s advocacy has resulted in millions of dollars in relief for consumers across the country. In 2021, Jody was named as one of Super Lawyers’ “Rising Stars.” Ariana Tadler is the founding partner of Tadler Law LLP, a WBENC-certified, women-owned boutique law firm that offers an array of litigation and legal counseling services. With more than twenty-seven years of experience advocating for consumers and investors against corporate fraud and abuse while litigating and managing securities, consumer and data breach class actions, and complex litigation, Ariana is considered one of the leading women litigators in the country. Ariana is regularly appointed by courts to leadership positions in large, complex federal, multi-district, and state coordinated proceedings because of her extensive experience managing complex litigation. Ariana is also recognized as one of the nation’s leading authorities on electronic discovery and pioneered the establishment of an e-Discovery Practice group within a plaintiffs’ firm structure more than fifteen years ago. Dennis Wall is an experienced litigator, mediator, and expert witness in Florida and federal trial and appellate courts. He is an AV- rated attorney and an elected member of the American Law Institute. He has personally litigated the issues addressed in this webinar. The author of four books, he is currently at work on a book about the presumption of public access to judicial and administrative records. He has dedicated a page on his website to resources on discovery confidentiality.   National Association of Consumer Advocates 1215 17th Street NW, 5th Floor, Washington, DC 20036 Phone: 202.452.1989 | Fax: 202.452.0099 Contact Us

DISCOVERY CONFIDENTIALITY WEBINAR!

 Readers, here is a link to the Discovery Confidential! page of my website.  Thanks.--Dennis Wall

 

 Click here for the Mobile/Web Version

Discovery Confidentiality February 22, 2:00 p.m. ET–3:00 p.m. ET Pricing Private Attorney Members: $40 Legal Aid and Public Interest Members: $30 Nonmembers: $90 (if you have not yet been approved to attend NACA webinars, you must email training@consumeradvocates.org to be vetted to attend) Are you interested in learning the methodologies of stipulated protective orders  proposed by defendants’ counsel in every case, large and small? The focus will be on federal court cases, but many of the same principles apply to state court cases, too. The webinar will include a discussion of standards for obtaining protective orders that the parties are bound to follow. This webinar will also provide tips and strategies to improve the pre-discovery stipulated protective orders that judges are most likely to enter in your clients’ cases. In addition, the speakers will examine typical provisions used in actual litigation.  This webinar is useful for practitioners at every level, from those who handle  multi-district litigation to individual cases. What You Will Learn How to address negotiations over a stipulated protective order and how you can shape the best possible protections for your client What adversaries will likely propose in their pre-discovery umbrella and stipulated protective orders How to implement preemptive strategies, including judges’ model orders, local rules, and orders approved by the same judge or proposed by the same defendants in other cases Speakers Jody López-Jacobs is a consumer protection attorney based in Philadelphia.  Born in Lancaster, PA, Jody graduated magna cum laude from Temple University Beasley School of Law, where he served on the law review editorial board and won second place in an American Bar Association writing competition. After serving as a federal law clerk in the Eastern District of Pennsylvania, Jody joined the law firm Flitter Milz, PC, where he litigates individual and class actions involving repossessions, credit reporting, and financing fraud. Jody’s advocacy has resulted in millions of dollars in relief for consumers across the country. In 2021, Jody was named as one of Super Lawyers’ “Rising Stars.”   Ariana Tadler is the founding partner of Tadler Law LLP, a WBENC-certified, women-owned boutique law firm that offers an array of litigation and legal counseling services. With more than twenty-seven years of experience advocating for consumers and investors against corporate fraud and abuse while litigating and managing securities, consumer and data breach class actions, and complex litigation, Ariana is considered one of the leading women litigators in the country. Ariana is regularly appointed by courts to leadership positions in large, complex federal, multi-district, and state coordinated proceedings because of her extensive experience managing complex litigation. Ariana is also recognized as one of the nation’s leading authorities on electronic discovery and pioneered the establishment of an e-Discovery Practice group within a plaintiffs’ firm structure more than fifteen years ago.   Dennis Wall is an experienced litigator, mediator, and expert witness in Florida and federal trial and appellate courts. He is an AV- rated attorney and an elected member of the American Law Institute. He has personally litigated the issues addressed in this webinar. The author of four books, he is currently at work on a book about the presumption of public access to judicial and administrative records. He has dedicated a page on his website to resources on discovery confidentiality.   National Association of Consumer Advocates 1215 17th Street NW, 5th Floor, Washington, DC 20036 Phone: 202.452.1989 | Fax: 202.452.0099 Contact Us

 

CONFIDENTIALITY: THE NEXT FRONTIER.

Confidentiality is an issue in every dispute.  There do not have to be lawsuits for confidentiality to be an issue.  It is an issue between people and organizations whenever they have a dispute.

          In some disputes, the issue arises in "Nondisclosure Agreements."  In lawsuits in particular, the usual vehicles used to raise the issue are called "Stipulated Protective Orders."

          In all disputes, confidentiality is an issue.  Beginning your research in a dispute involving confidentiality and in lawsuits in particular, discovery confidentiality?  Begin your research into Confidentiality including into Discovery Confidentiality by checking out the in-depth sources I am making available on the Discovery Confidentiality page.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

PUBLIC ACCESS TO RECORDS: STATE MAKES PUBLIC ACCESS THE DEFAULT.

Thanks to Penn's The Regulatory Review for publishing my essay on the new default of public access to administrative and judicial records as a matter of public policy. You can read my candid thoughts in New Public Access to Court Records on PENN REGULATORY REVIEW, online on Feb. 7, 2022, here:  https://www.theregreview.org/2022/02/07/wall-new-public-access-court-records/

For further research into Discovery Confidentiality, visit the Discovery Confidentiality page of my website.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

NO "SPECIFIC, IDENTIFIABLE" CLAIM OR CASE? NO FEDERAL JURISDICTION.

In State Auto Prop. & Cas. Ins. Co. v. Williams, No. 20-CV-1420, 2021 WL 2106488, at *4 (C.D. Ill. March 15, 2021), the District Judge applied a rule of federal jurisdiction which is summarized in the title of this article:  No "specific, identifiable" claim or case?  No federal jurisdiction.

          In that case, the federal court did not have jurisdiction to issue declaratory relief as between a liability carrier and Norfolk Southern Railway Company, "a purported additional insured" under a policy the carrier issued to one Williams.  Williams, in turn, was doing business as Jandi Services, a cleaning company.  Norfolk contracted with Williams d/b/a Jandi Services for cleaning services.  State Auto Property, 2021 WL 2106488, at *1.  Although the underlying claimant provided Norfolk with an unfiled draft complaint against Norfolk, State Auto Property, 2021 WL 2106488, at *2, there was no underlying action against Williams.  State Auto Property, 2021 WL 2106488, at *2.

          Making a complicated story simpler, there was no "specific, identifiable" claim or case in the eyes of the District Judge.  The Court accordingly granted the defendants' motion to dismiss the carrier's complaint seeking a declaration that it has no duty to defend.  State Auto Property, 2021 WL 2106488, at *6.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

FREEDOM OF INFORMATION ACT GUIDANCE FROM NCLC DECEMBER 2021 WEBINAR.

Excellent guidance to navigating the Freedom of Information Act was on display in a December 2021 Webinar of two experts, both of whom are academics and practitioners.  If you get the chance to navigate this Webinar sponsored by the National Consumer Law Center, take the chance and don't look back.  Look at the video of the Webinar, listen to the guidance, and learn from the people who know not only how FOIA works, but know how to use it and can teach others like you and me how to use it as well.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

NATIONAL CONSUMER LAW CENTER DECEMBER WEBINARS FOR THE AGES.

The issue of confidentiality was on the table for discussion in an outstanding December Webinar put on for the National Consumer Law Center by Steve Koval, Esquire and Ahmad Keshavarz, Esquire, Don't Mess Up The Settlement Agreement!

          John Rao, Esquire of NCLC moderated another outstanding Webinar, this one presented by Phillip Robinson, Esquire and Yongmoon Kim, Esquire, Using Violations of Mortgage Servicing Rules Without Private Rights of Action as Predicates for FDCPA [Fair Debt Collection Practices Act] and UDAP [Unfair and Deceptive Acts and Practices, by whatever name] Claims.

          Alpha Taylor, Esquire of NCLC and Marissa Ditkowsky, Esquire jointly presented still another informative Webinar, The Intersection of Disability and Consumer Law.

          These Webinars were presented less than two months ago, but they are timeless.  If you have access to these NCLC Webinars, give thanks for the opportunity.  Watch, listen and learn.

          And one more that is more than worth your while ....

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

PROPERTY PRESERVATION: AN NCLC WEBINAR.

Sarah White and Deborah Cuevas Hill are two experienced lawyers.  Ms. White is with the Connecticut Fair Housing Center and Ms. Hill is with Legal Counsel for the Elderly.  Together, they presented a very informative NCLC Webinar on Property Preservation and Home Break-In Cases.

          Not only are they familiar enough with Property Preservation issues to teach about Paragraph 9 of the Standard Security Instrument, but they have insights into practice experience to share as well.  The cases worth bringing are essentially personal injury cases, in the sense that it is helpful to work with attorneys who have experience in developing facts around harm.  These lawyers look at the way a jury will look at the facts.

          UDAP involves distinctions between "Unfairness" v. "Deception."  Servicers in particular do not employ people with much training.  A current CFPB Memo, while not specific to property preservation, does explore how various servicers have to oversee all their subcontractors according to the CFPB.

          If you get the chance to see or attend this worthwhile Webinar, seize the time.  Search it out.  You will be glad you did.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

"CONFIDENTIAL" STIPULATION IS INVALID WHEN THE INFORMATION IS ALREADY PUBLIC.

Parties and their counsel cannot make information “confidential” that is already publicly available, just because they follow the requirements of a Stipulated Confidentiality or  Protective Order.  That is what some parties and their counsel tried to do with an expert’s prior compensation information consisting of the expert’s declarations regarding compensation, case lists, invoices, and deposition testimony regarding compensation, in Parks v. Ethicon, Inc., No.: 20-CV-989-LL-RBB, 2022 WL 214753 (S.D. Cal. Jan. 24, 2022).  The expert's compensation information had already been produced in other cases before this one.

    The Magistrate Judge, the opposing parties, and in the end, the District Judge were having none of it as far as protecting the "Confidentiality" of such information:

The Court agrees with Magistrate Judge Brooks and Defendants that Dr. Elliott’s prior compensation as an expert witness is not confidential and therefore not entitled to protection under the Protective Order. See July 29 Order at 7–8; Opp’n at 3–4, 6. Simply stated, Dr. Elliott’s prior expert compensation has been produced—without Dr. Elliott maintaining its confidentiality—in at least forty cases, (see ECF No. 18-1 ¶ 4; see also ECF No. 169-2), and even discussed in open court.

Parks, 2022 WL 214753, at *4.

For further research into Discovery Confidentiality, visit the Discovery Confidentiality page of my website.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DROWNING THE LAW IN THE BATHTUB: THE DRAFT EXECUTIVE ORDER.

In the past week, articles here, here, and here have explored the draft Executive Order of December 16, 2020 in this space.  We have journeyed through the XO's slight-of-hand diversions from the Attorney General to the Secretary of Defense, from the Attorney General to a new Special Counsel after seizing voting machines used to elect President Biden, and perhaps most insulting to lawyers, or at least to researchers, the XO's citation to the wrong statutes.

          The XO did not update the statutes cited in it, although the newly renumbered statutes had been around for years by the time the XO was written.

          That may have been the result of incompetence, but it is hard to assign incompetence to at least three legal references that are deceptive and misleading.  Today we move from incompetence to deceptive and misleading, from falsehoods to reality.

          One is the reference to an order issued by Judge Amy Totenberg in the Northern District of Georgia before the 2020 election.  Judge Totenberg denied a preliminary injunction to plaintiffs who challenged the voting system that was chosen by the Georgia State government to use in the 2020 election.

          Let's stop and think about that for a moment:  The voting system was chosen by the Georgia State government before the 2020 election for use in the 2020 election.  No-one else, not federal officials or party officials or anyone else chose that voting system, only Georgia State government officials chose it.

          Judge Totenberg pointed out a number of potential flaws in that system, but she refused to stop its use:

Despite the profound issues raised by the Plaintiffs, the Court cannot jump off the legal edge and potentially trigger major disruption in the legally established state primary process governing the conduct of elections based on a preliminary evidentiary record.

(Emphasis added.)  When the full evidentiary record was made after the election, not one but several recounts found the election in Georgia free of any significant fraud in 2020.  There were no more "potential" flaws at that point; by then, they had presumably been corrected or they did not occur in reality.

          Contrary to the assertions in the draft XO.  It must have been delicious for them to quote an order written by the sister of Nina Totenberg, who was and is the long-time Supreme Court correspondent for PBS.  But it was apparently even more delicious for them to mis-quote Judge Totenberg.  Deceptive and misleading.

          Any lawyer knows that a preliminary evidentiary record is likely to be not even remotely close to being a full evidentiary record, perhaps not even in the same neighborhood.  Yet the draft XO represents Judge Totenberg's order to the civilian world as the same thing.  And without pointing out that Judge Totenberg's ruling was to deny the lawsuit even on a preliminary evidentiary record.  Deceptive and misleading.

          Second, the draft XO declares that Coffee County, Georgia "refused to certify its result."  That is flat-out false.  Here is what the Coffee County, Georgia officials actually did and said, in the real world:

"Accordingly, the Coffee County Board of Elections and Registration have voted to certify the votes cast in the election night report.  The election night numbers are reflected in the official certification of results submitted by our office."  Letter from Coffee County Board of Elections and Registration to Georgia Secretary of State Brad Raffensperger, Dec. 4, 2020 (emphasis added).

The Coffee County Board of Elections and Registrations voted to certify the election results in 2020; to say that it "refused to certify" is false.  Just simply false.  And misleading and deceptive.  And perhaps other things, Michaeleen.

          The final thing worth mentioning at this time is the draft XO's similar flaw in its description of voting machines in Antrim County, Michigan.  That description is now the subject of Dominion Voting Systems' lawsuit for libel and slander, so I will not comment further on it except to say that a Committee of the Michigan Legislature with a Republican Chair and a majority of Republican members issued a written report finding that the voting machines in Antrim County did not include any significant fraud.   They also sent a written request to the Michigan Attorney General to take action against those who falsely said that fraud was committed with the voting machines in Antrim County.

          Is there no end?

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

IDENTIFYING THE WOMAN THEIR XO PICKED FOR SPECIAL COUNSEL?

Yesterday's article pointed out the answer to another good question, continuing from an earlier article posted here.  Yesterday's question that springs off the page of the draft XO is why the Secretary of Defense would be directed to use the National Guard.  Why not the Army?  Download Draft Executive Order dated December 16 2020.

          We learned that both answers to the two questions are the same, i.e., the same answer to why not the Army as to why not the Attorney General:  Because they wouldn't do it.

          But there are more questions, including who is the person who would be appointed Special Counsel with full resources "necessary to carry out her duties"?  And why did they need a Special Counsel after they seized the voting machines?

          I'm afraid I haven't come up yet with an answer to why they made a Special Counsel position after they seized the voting machines.  They still had an Attorney General ... oh, right.

          So let's explore the appointment by this order of a Special Counsel with all the resources "necessary to carry out her duties[.]"  These people never used "her" or "she" meaning to be inclusive of everyone, and it is unlikely that they started on "December 16, 2020."  This crowd would not be likely to talk about "her" unless they had a woman already in mind.

          So if they had a woman in mind when they wrote this document, who did they have in mind?  That's not too hard to figure out if only because there were so few women among them.

          There were Elaine Chao and Betsy DeVos.  Unlikely.  They were both already in the Cabinet.  And almost three weeks to the day after this XO was drafted, they would resign.

          What about the lawyers at the time?  One of the lawyers would have been a natural to fill the Special Counsel job this document would make. 

          Cleta Mitchell was a lawyer in good standing with these people.  Two weeks after the XO was written, she was on the January 2nd telephone call when the former guy called to try to intimidate Georgia Secretary of State Brad Raffensperger.  After that call, her law firm "distanced itself" from her, so the reporting goes, and a few days after that she resigned from her law firm.

          According to reports, Sidney Powell is the probable choice.  Reports are already circulating that she would have been the likely pick to be the Special Counsel of this XO.

          Well, whoever it was going to be, this XO says that she would have all the resources at the disposal of the government still in power to do her duties as the Special Counsel of this XO.

          But that still leaves questions about the statutes they invoked, the district judge's order they kind of quoted, and the recount they did not come clean on....

To be continued ....

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.