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FulkersonLotz

The Good, The Bad And The Ugly…. Trying Cases With Really Bad Documents. November 29, 2012. www. FulkersonLotz .com. Dealings Become Data. Stored. Backed-up. Information is Generated and Shared Abundantly. Made Someone Else’s Responsibility. Mixed Use Development –

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FulkersonLotz

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  1. The Good, The Bad And The Ugly… Trying Cases With Really Bad Documents • November 29, 2012 www.FulkersonLotz.com

  2. Dealings Become Data Stored Backed-up Information is Generated and Shared Abundantly Made Someone Else’s Responsibility

  3. Mixed Use Development – Condominiums, Retail and Apartments ACCO LLC 35 Investors, $3 million each = $105 million total Started 2005, Target Completion Date = July 1, 2007

  4. Mixed Use Development – Condominiums, Retail and Apartments Construction Delays Bad General Cont. Cost Overruns Liquidity Crisis Permitting Problems ACCO LLC $25 Million in Additional Funding Required Completion Date Pushed from July, 2007 to Dec. 31, 2008

  5. The Investors Sue Acco • Breach of Contract • Negligence • Breach of Fiduciary Duty • 5 Types of Fraud

  6. There might be some bad documents, but they’re mostly privileged. General Counsel for Acco

  7. Permitting Problems ACCO LLC Bad doc #1

  8. Permitting Problems ACCO LLC Bad doc #1, con’t

  9. No reply from Anderson . Expenses passed on to investors Permitting Problems ACCO LLC Bad doc #2

  10. General Contractor Bad doc #3

  11. General Contractor ACCO LLC Bad doc #3, con’t

  12. General Contractor ACCO LLC Bad doc #4

  13. Construction Delays ACCO LLC Bad doc #5

  14. Construction Delays ACCO LLC Bad doc #5 con’t

  15. Liquidity Crisis ACCO LLC Bad doc #6

  16. Liquidity Crisis ACCO LLC Bad doc #6 con’t

  17. Obtain full client acknowledgement and a commitment to full production Do I have all the bad docs? Are there more? Are the bad docs privileged? What explains these documents? Transcendent facts? • Discover and test • Orient witnesses to state the case

  18. CallingAllDocuments

  19. Err on the Side of Production Privileged

  20. Avoid the Worst Case Scenario • Motions to Strike governed by TransAmerican • Leading cause of sustained death penalty sanctions is document withholding and/or destruction • Court infers that if you could stand production, you would have produced.

  21. Test Neutral or Positive Explanations for reasonableness and acceptability to your fact finder

  22. Transcendant Facts Make Bad Documents Irrelevant • Opposition knew and approved • They do the same things • Refused a fair “out” when offered • The project or product was doomed anyway

  23. Testing Explanations

  24. Witness Preparation • Familiar with all bad documents • Acknowledge if/when necessary • Path to positive explanations, transcendent facts

  25. Don’t over-explain • Don’t hide • Explain early and well, give transcendent facts • Over-prove, prove through others

  26. Bad Document Cases Are Hard. Good Counsel is Crucial. Fight or Flight? If Flight, do so early. Test explanations, transcendent facts All on the same game plan Explain without flinching

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