How do I know if my next generation family member is ready to take over the reins of my family business? That simple question has perplexed countless company owners – particularly founders – for about as long as family businesses have existed. The anxiety around that question often plays out in a tension between Read More
Join us at Thomas More on the afternoon of Wednesday, April 29th at 4:00 PM for a complimentary Estate Planning Seminar. Topics discussed will include Wills, Powers of Attorney, Trusts, Taxes, Insurance and more. The presenters will be DBL’s Jim Dressman, Managing Partner and Paul Sartori, Managing Principal at Legacy Financial Advisors. The seminar will Read More
The U.S. Supreme Court overturned a Fourth Circuit decision striking down a win for UPS. See the full story here. « Back to newsSubscribe
An owner can spend millions and millions of dollars to design and construct a state-of-the art, one-of-a-kind building. But to the surprise of many owners, paying for the building’s design does not automatically equate to owning that design. The Architectural Works Copyright Protection Act of 1990 gives “architectural works” copyright protection. This includes the design of any permanent, habitable structure, such as office buildings, hospitals, homes, restaurants, hotels, and museums.
You have an enforceable contract in place, but something changes with the work. Maybe the Owner has made a scope change. Or perhaps inclement weather created a material delay. Whatever the reason, the change may be given verbally with pressure to implement the change immediately.
The predicted physician shortage in the United States has been receiving a significant amount of attention by mainstream media outlets as of late. While not a new concern, the 2010 passage of the Affordable Care Act (ACA) cast a new light on the issue. A lively debate exists as to whether the ACA will have Read More
Every construction project incurs setbacks. Such setbacks may result in delayed performance by one or more trades. Such delays may be inexcusable, particularly if the trade caused the delay. Others may be “excusable” delays. Excusable delays allow the trade to extend its Contract Time.
Legal support is an essential component of a successful strategy for health care technology contracts. Having a good IT attorney who understands the health care business is essential for a successful transaction. Good attorneys on each side help the parties negotiate and document rights and obligations for a win-win transaction.
Public-sector construction contracts can provide a wide berth of benefits but may also present a variety of practical and legal pitfalls. Such projects tend to be more financially stable, an important incentive in the current economy. However, contractors may be subject to the political preferences of the public entity sponsoring the particular project.
Successfully completing a major transaction such as a merger, acquisition, or divestiture is a tall order. Integrating information technology issues and involving the respective information technology departments is a vitally important aspect of any deal.
Public-sector construction contracts can provide a wide berth of benefits but may also present a variety of practical and legal pitfalls. Such projects tend to be more financially stable, an important incentive in the current economy. However, contractors may be subject to the political preferences of the public entity sponsoring the particular project. Additionally, contractors Read More
Leading jurist and legal scholar Richard Posner, of the United States Court of Appeals for the Seventh Circuit, is known for his writings on law and economics. He can also be a harsh critic of attorneys. In Monica del Carmen Gonzalez-Servin vs. Ford Motor Company, No. 11-1665 (7th Cir. 2011), Judge Posner authored a stinging critique of an attorney who failed to address dispositive precedent in his client’s appeal brief.
According to the owners’ wishes, contracts frequently require contractors to put changes to the work in writing in order to be compensated. However, throughout the construction project, owners often become lackadaisical with contract requirements and verbally agree to or pay for additional work without requiring a written change order. An owner may have no problem compensating the contractor for certain work that the owner knew about or specifically ordered. However, what the owner may not realize is that waiving the written requirement in one situation may waive the requirement in others.
With its recent decision in Green v. Blitz U.S.A., Case No: 2:07-CV-372 (E.D. Tex. Mar. 1, 2011), the U.S. District Court for the Eastern District of Texas issued a wake-up call for litigators. U.S. District Judge T. John Ward laid down the law for a defendant that appeared oblivious to basic ESI discovery obligations. In this case, over two years after the defendant’s favorable jury verdict, the court imposed sanctions upon the defendant for discovery abuse.
Particularly in this economy and construction market, contractors want to get paid for their work as quickly as possible. Delayed payments can have devastating effects. They can result in work stoppage, subcontractor disputes, and even business closures. Though not a guarantee, here are a few tips that may help contractors get paid more quickly:
Oftentimes, in the context of a construction contract, there are three primary parties: (1) the owner of the project; (2) the architect, who is responsible for drawing up the various plans and blueprints necessary for the construction of the project; and (3) the general contractor, who is responsible for overseeing and supervising the project’s actual construction. While these three parties are fundamental to a properly functioning construction project, their motivations, loyalties, and interests may not always be aligned. As such, an owner must be mindful of the various contractual relationships among the primary parties to the construction contract.
Judge Anthony Frohlich has a reputation as a winner that goes well beyond Boone County. Many of us know he runs an efficient docket, is a published author and commentator, and has pioneered a widely adopted felony mediation process, but he is also a winner outside the court house.
Owners and architects often disagree about limitation of liability clauses. Architects generally desire to limit their liability to their fee for service. However, if there is a design defect, the project can go bad quickly. As a result, the owner could incur significant damages. For that reason, owners tend to shy away from limitation of Read More
Anticipation of Litigation Must be the “Driving Force” Behind Assertion of the Work Product Doctrine.
Fed.R.Civ.P. 26(b)(3)(A) and (B) guide federal courts asked to compel disclosure of trial preparation materials. In general trial preparation materials are protected by the work product doctrine. This doctrine is designed to “allow an attorney to ‘assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference … to promote justice and to protect his client’s interests.’” Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D. 298, 303 (S.D. Ohio 2010) (citing Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th Cir. 2002)).
If a federal court orders production of trial preparation materials under Fed.R.Civ.P. 26(b)(3)(A), then pursuant to Fed.R.Civ.P. 26(b)(3)(B), which defines part of the work product doctrine, it must “protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” In Gruenbaum, Magistrate Judge King addressed Rule 26(b)(3)(A) and (B) in response to Plaintiff’s motion to compel production of in-house counsel’s handwritten notes taken while investigating the underlying accident.
The basic facts of the case are that the survivor of the deceased driver alleged that the Defendant tractor-trailer driver negligently operated his vehicle causing driver’s death. During discovery, Plaintiff learned that Defendant’s counsel had made handwritten notes as a part of his investigation. Plaintiff sought Defendant’s investigative file and handwritten notes on the collision alleging they were not protected by the work product doctrine because they were made for an ordinary business purpose. Id. at 303. The Defendant produced all of the file, except the handwritten notes, because it asserted the notes were protected by the work product doctrine and Rule 26(b)(3)(B).
Citing Fed.R.Civ.P 26(b)(3), the Court noted that the work product doctrine could be set aside where the information sought is otherwise discoverable under Rule 26(b)(1), and the party seeking the information shows a substantial need. Id. The Court then distinguished between fact work product and opinion work product, holding that “absent waiver, a party may not obtain the ‘opinion’ work product of his adversary; i.e., ‘any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments or legal theories.’” Id. at 303 (citing Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th. Cir.2002)).
The court concluded that many foods are high in fat, salt, and cholesterol, low in fiber and certain vitamins, and contain beef and cheese, and because there is no evidence to suggest all who consume such foods develop the kinds of medical conditions which are at issue in this case, an individualized inquiry predominates over a generalizable causal connection.
A recent decision out of the Southern District of Texas offers guidance to an attorney tasked to assess the e-discovery burdens of a case. Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure, authored the opinion. Her status as chair of the conference committee adds authority to her opinions on e-discovery issues.
Contractors often hear about the importance of filing a mechanic’s lien if they are not paid for a particular job. However, what is not often discussed is what to do if the contractor is out of time to file a lien.
The Great Recession continues to take its toll on our Nation. Many leading business journals predict continuing losses in the commercial real estate market. Although it is hard to see any bright side to this domino’s fall, there is one practical step that owners can take to mitigate the damage – appeal their tax bill.
Courts across the country are increasingly denying policyholders coverage for construction defect claims. Construction companies need to ensure that their policies sufficiently protect them against construction defects claims. Often, defects can result in multi-million dollar claims. Without appropriate coverage, a company risks paying for such claims, or at least a substantial part of the claim, Read More
The general rule is that contractors are not liable for the injury or death of a subcontractor’s employee. Among the exceptions, however, are Ohio’s “active participation” rule and Kentucky’s “retained control” doctrine. In Ohio, the active participation doctrine limits the contractor’s liability to situations where the contractor actually directed the activity that resulted in the Read More