By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction that would shut down his new company.  For this week, we look at the next phase of litigation, discovery.

From the outside, discovery often appears tedious, burdensome and voluminous.  Stories abound of “discovery wars” and lawyers burying opposing parties under a mountain of paper or hiding documents and witnesses.  This scene from “The Rainmaker” starring Matt Damon is Hollywood’s take:

 http://klipd.com/watch/the-rainmaker/deposition-scene

While these types of situations can and do happen and tend to give discovery a black-eye, the reality is that the discovery process is essential to litigation and can be the point in which many cases are won and lost.  Remember, the famous Courtroom scene from the same movie comes on cross-examination of the Insurance Company, Great Benefit, where Matt Damon has him reading from an internal document related to the value of bone marrow transplants; a document which would have been found in discovery.

Discovery generally occurs in three areas:  document production, written interrogatories and depositions. In document production, each party requests records from the other party which they belief to be reasonably calculated to lead to admissible evidence.  In our lawsuit, relevant documentation would include client and customer lists, e-mail and other correspondence from Dick and his business partners about the formation of the new company and correspondence to clients and customers,   Secondly, the parties exchange written discovery questions called interrogatories.  These questions are generally designed to gather broader amounts of information and sources of discovery.  For example, the lawyers in Dick’s case would ask Dick to identify all witnesses with knowledge about the new company and its clients and customers.  Finally, the parties can conduct depositions.  Depositions are usually an in-person examination (question and answer) done before a Court Reporter.  The proceeding is attended by all parties and taken under oath.  Depositions of the parties can be recorded  in order to gain information and also of parties and witnesses to preserve testimony.

Due to the discovery process, many of the questions and answers in a trial are known to all parties involved.  Although unexpected events and statements do occur at trial, true “AHA!” moments are rare.  Most of the exhibits have been seen and exchanged and most of the witnesses have already testified in some format.

While we are all used to powerful scenes in the Courtroom from movie scripts, it is discovery where the meat and bones of these scenes are made.  Hard work and lots of digging make a Courtroom scene like this possible:

http://www.youtube.com/watch?v=9EQPrFR9KRo

By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract.  We looked at the general dynamics of a Complaint and the various Courts in which a Complaint can be filed.  Recall that this Complaint made the rare request for a Temporary Restraining Order and Interlocutory Injunction.  In a sense, Dick’s former company was seeking an immediate Court order to shut down Dick and his company.

Temporary Restraining Orders and Interlocutory Injunctions are tough to obtain and rightfully so.  These orders can have the effect of giving one party an overwhelming victory in a case without the process of a lawsuit having played out.  If Dick’s former employer can shut down Dick’s new company while the case is pending, it is quite likely that before the case is ever final, Dick will be out of business anyway.  By contrast, if Dick can keep operating during the case, it is possible that the damage done to his former employer is too great to even calculate.

A Temporary Restraining Order is granted on a motion, usually without the other party being present.  This order is emergency in nature and lasts only 30 days.  Generally, the order is entered and a full hearing is scheduled.  At that hearing, the Judge can take evidence and consider the matter more fully and openly.  Following that hearing, an Interlocutory Injunction can be issued to govern the parties during the case.

The threshold for an Interlocutory Injunction is quite high.  The party bringing the motion must show that the damages absent the injunction would be irreparable, that it is not able to be remediated or reduced to monetary value.  Further, the party must show that they are likely to prevail on the merits of the underlying suit.  Finally, the party must show that on balance the entry of the injunction is fair and equitable.

In our case, Dick and his attorney must go all in for the injunction hearing.  As indicated, if the injunction issues, he could be out of business before the lawsuit is ever finished.  Dick should elect to attack the injunction on two fronts.  First, Dick can show that the injunction is not necessary because the damage caused is not irreparable.  If Dick has, in fact, violated his contract and taken business from his former employer, that amount of business should be quantifiable in dollars.  Thus, although potentially damaging, the harm is not irreparable.  Secondly, Dick can show that on balance, the entry of an injunction is not fair and equitable.  The injunction would prohibit (without determining the validity of the covenant not to compete) a customer from freely choosing where that customer would wish to do business.  Such an order is in restraint of free trade and against general public policy.

Dick should avoid the other component of an injunction argument and the former employer will likely focus all of their attention and effort in this area.  As discussed in our prior blog, due to the Constitutional Amendment of 2010 on covenants not to compete, the company’s position is much stronger on the merits and they are much more likely to prevail on the merits in some fashion.

For purposes of our story, Dick and his attorney are able to prevail and keep a Judge from entering an injunction shutting down Dick’s new company.  The case now proceeds into a second critical phase:  discovery.  Our next blog will review the various aspects of discovery including written discovery, document production and depositions.  The discovery process is where most cases can be won or lost.

Until then, Dick and Jane wish everyone a very Merry Christmas, Happy Holidays and a wonderful New Year!

By Justin O’Dell

When we last saw Dick and Jane, Dick had received a threatening letter related to his new start up company.  The letter threatened litigation should Dick fail to respond.  Although Dick retained Counsel and sent a thorough response, a lawsuit has been filed.  For the next few months, we will analyze the various parts of a typical lawsuit and ways in which Dick needs to respond.

A lawsuit is initiated by the Plaintiff filing a Complaint or Petition, a Summons and service of process.  The Complaint outlines the facts and allegations of the case and the specific legal bases upon which the Complaint is brought, i.e. “breach of contract.”  The Summons directs the Defendant to file an Answer within a specified time period or be subject to default.  Service of Process is the formal mechanism by which the Defendant is notified of the lawsuit.  Service must be made in strict compliance with Georgia law and can be handled by the Sheriff’s office, a private process server or can be coordinated and waived between the lawyers handling the case.  In our situation, because Dick has already retained counsel to respond to the demand letter, service of process was waived as a professional courtesy between the lawyers involved and Dick was spared the embarrassment of having the Sheriff show up at his place of business or home to deliver the papers.

The lawsuit against Dick was filed in the Superior Court of Cobb County.  The Superior Court is the Court of general jurisdiction for a County and each of the 159 Counties have a Superior Court.  Cobb County also has a State Court which is able to handle many, but not all types of litigation (cases involving felonies, divorce and equitable relief must be in the Superior Court).  Many smaller counties do not have a State Court.  Dick’s former employer is seeking an injunction and restraining order against Dick and his new company.  A restraining order and injunction is equitable relief, thus the Complaint is in the Superior Court.

The Superior Court, including the offices of the Clerk and the District Attorney, are now all located in the new Cobb County Courthouse on Haynes Street.  The Superior Court of Cobb County consists of 10 elected judges and four assisting Senior Judges.  The ten elected Judges are:

The four assisting Senior Judges are: Judge Conley Ingram, Judge Grant Brantley, Judge George Kreeger and Judge Michael Stoddard.  Each Senior Judge assists on a one-week rotating basis.  The Senior Judges administer the jury oaths, call the daily uncontested divorce calendar, hear and consider temporary protective orders and hear and consider emergency matters.

In addition to the Senior Judges, the Cobb Superior Court Judges also designate one of the four Cobb Juvenile Court Judges as an assisting Superior Court Judge on a one-week rotating basis.  Each Judge receives the assistance of a Juvenile Court Judge once every ten weeks.  The Superior Court Judge is able to delegate any matters to that Judge for hearing.  Most of the Superior Court Judges use this time to delegate the regular criminal and domestic calendars while they are presiding over a lengthy criminal or civil jury trial.

Business litigation of this nature is often won or lost in two areas, both relate to preparation.  The first area of critical importance is the initial response and any immediate hearings.  The second area of critical importance is the discovery phase.

In Dick’s case, the request for a temporary restraining order and interlocutory injunction will require an immediate hearing.  Dick’s former employer wishes to shut Dick’s new enterprise down during the litigation.  Obviously, Dick wants to stay in business.  Believe it or not, the entire case could be won or lost in this hearing.  Fortunately for Dick, the burden upon his former employer is high.

Coming next month, we will discuss the hearing and see what happens. . .