Joseph, Greenwald & Laake, P.A. is pleased to announce that attorney Debora Fajer-Smith, chair of the firm’s Workers’ Compensation and Insurance Group, has received the 2014 Leadership in Law award from the publisher of Maryland’s business and law newspaper The Daily Record.

“The firm congratulates Debora on this recognition of her many achievements during her law career,” said Burt M. Kahn, the firm’s president. “Debora’s experience, skill and leadership make her a great asset to the firm and a passionate advocate for her clients’ legal rights.”

Fajer-Smith is one of 21 Maryland individuals to receive the Leadership in Law award in 2014. Nominees were evaluated on their career accomplishments, community involvement and mentoring activities that distinguished them as outstanding leaders in the law. An independent panel of judges and a representative of The Daily Record selected the finalists. Winners will be honored at a reception Nov. 13 in Linthicum Heights and will be profiled in a special section of the Nov. 14 issue of The Daily Record and on the publication’s website.

“The Leadership in Law awards provide The Daily Record with the opportunity to raise public awareness of the legal community’s good work,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “The honorees work tirelessly to uphold high legal standards and improve communities throughout our state. We at The Daily Record salute them for their dedication and accomplishments.”

Fajer-Smith has nearly 30 years of legal experience in representing people injured in auto or workplace accidents, and those suffering occupational injury or death. She has obtained favorable settlements and awards for thousands of clients over three decades of practicing law.

Prior to joining Joseph, Greenwald & Laake, Fajer-Smith served as managing principal of her own law firm, which she founded in 1988. She has been named to the American Bar Association College of Workers’ Compensation Lawyers and has served on the Senate-House Oversight Committee on Workers’ Compensation and Insurance for many years.

JGL congratulates our partner Tim Maloney on his selection for a 2014 Civic Leadership Award, presented by The Community Foundation for The National Capital Region, Prince George’s County. The award was presented at a reception on September 25, 2014.

 

Timothy Maloney 2014 Civic Leadership Award

The controversy over what Wal-Mart employees are required to wear to work drew comments from JGL’s Brian Markovitz recently. The Forbes article titled How Walmart’s ‘Dress Code’ Costs Employees, reported on the new Wal-Mart clothing mandate that requires employees to dress in specific colors and types of clothing. Responding to the distinction between a “dress code” and a “uniform, Markovitz clarified the legal implications in Wal-Mart’s language use. 

Citing the U.S. Department of Labor, Markovitz explains how the financial burden of the new clothing mandate lies with the employee rather than the employer. Since the clothing requirements fall in line with a dress code rather than a uniform, employees are expected to cover the cost of the apparel.

As a principal at Joseph Greenwald & Laake, Brian Markovitz focuses on Labor and Employment, Civil Litigation and the firm’s Whistleblower group.

The divorce rate in America is on the rise again now that the economy and housing market is recovering. With as many as 50% of first marriages ending in divorce, you probably know someone who has gone through a divorce.

Here are five things even your closest friends probably won’t share with you about preparing for life after divorce:

  1. It will be hard not to bad-mouth your spouse to the kids:  But you should try really, really hard not to do it.  Despite the headache and heartache your spouse has caused you, your kids still love and need both of their parents.  Bad-mouthing your spouse may end up alienating your kids from you, and you certainly don’t want that.  Make a conscious effort to put up a united front and make sure your kids know it’s ok for them to love you both.

 

  1. Not seeing your kids every day will be a HUGE adjustment:  Getting used to a time-sharing schedule is a huge adjustment for everyone.  You, your spouse, and your kids are all used to seeing each other each day and the first time you have to go to bed in an empty house will feel awful but you will get used to it.  With time everyone will get used to the “new normal.”

 

  1. It will get better:  When you are in the thick of a divorce, your emotions may be all over the place.  You will have anxiety about court proceedings, money, what others will say, how to make your kids happy, and more.  You may feel like you just can’t keep going but you can and you will.  Healing takes time so be patient and trust that you can get through it.

 

  1. You may lose friends:  It is very difficult for mutual friends to deal with your divorce and some will feel they have to choose a side.  You and your spouse may both be surprised to see who aligns with whom.  It’s ok. You can’t dwell on it.  Focus on keeping people close to you who can support you when you need them, regardless of your divorce.

 

  1. You will date again.  In the beginning you may feel like you will never find anyone else and the thought of meeting someone and going out on a date may be unthinkable.  But eventually, you will not feel so weird about dating and you will actually be open to it and you will have fun.  When the timing is right, let it happen naturally and don’t force it.

 

The world of divorce can be a difficult one to navigate, but keeping these five things in mind can certainly make the process easier.

 

One of the most explosive issues in sports right now is the NFL’s discipline of its players.  Discipline has been inconsistent, the NFL is accused of seriously mishandling cases, and there is public outcry about some players’ conduct.  The two-game suspension, and subsequent indefinite suspension, of former Ravens’ running back Ray Rice is reflective of many of the broken parts of this process.

Although the process may be broken in many respects, and despite Rice’s reprehensible conduct, he still has rights.  The commissioner of the NFL has twice suspended Rice for the same conduct.  This is impermissible under governing NFL rules and the labor law principles of “industrial due process” and “industrial double jeopardy.”

The Domestic Violence, Arrest, and Release of the Video.

On February 15, 2014, Ray Rice and his then-fiancée were arrested for domestic violence at the Revel Casino in Atlantic City.[1]  The police report indicated that Mr. Rice committed an assault by attempting to cause her bodily injury – “specifically by striking her with his hand, rendering her unconscious, at the Revel Casino.”[2]  TMZ obtained what is the now notorious video footage of Rice dragging his unconscious fiancée out of the elevator in which the attack occurred.[3]  Rice met with NFL Commissioner Roger Goodell on June 16, 2014 and, on July 24, 2014, Goodell announced that Rice would be disciplined with a two-game suspension without pay, including a fine for one game check from last season.  Rice’s total discipline for the domestic violence incident was a two game suspension and loss of $529,411.24.[4]

Criticism of the Discipline and Release of the Second Video.

The discipline Goodell imposed on Rice was widely criticized as being too lenient.  A Time magazine article referred to the criticism of Goodell as “intense.”[5]  An ESPN SportsNation poll indicated that 65% of respondents believed that Ray Rice’s suspension was too lenient, 30% believed it was appropriate, and 5% believed it was too harsh.[6]  Well-known sports and political commentator Keith Olbermann sharply decried “sports sexism” as being the reason the NFL suspended Rice for a mere two games.[7]  A group of three U.S. Senators wrote a letter to Goodell and the Ravens demanding a tougher penalty and accusing them of having “a disturbingly lenient, even cavalier attitude towards violence against women.”[8]  Goodell, however, defended his punishment, pointing towards Rice’s lack of prior offenses and strong background in the community.[9]

Although the light suspension was criticized, a suspension of that length was not unprecedented.  At least one journalist pointed out that “if Goodell had suspended Rice for eight games or the entire season, it would be difficult to see that punishment sticking.”[10]  “Rice would have undoubtedly appealed a harsher suspension because no first-time offender of domestic violence has ever received such a punishment. He could cite two former Ravens, Fabian Washington and Cary Williams, who were suspended a combined three games after being charged with domestic violence. Rice could point to the discipline handed out to wide receiver Brandon Marshall in 2008, when the Denver Broncos wide receiver was suspended only three games (later reduced to one) after multiple domestic disputes.”[11]

Then everything changed.  On September 8, 2014 TMZ published the video of Ray Rice violently punching his then-fiancée, rendering her unconscious.[12]  After that video was released, some NFL players reacted swiftly and were critical of the league and Rice.[13]  The Ravens terminated Rice’s contract that same day.[14]  Also, Goodell handed out a new punishment to Rice, increasing the discipline from a two-game suspension to an indefinite suspension, the NFL stating it was based on “new evidence.”[15]

The Appeal.

The National Football League Players Association (“NFLPA”) appealed the indefinite suspension the evening of September 16, 2014.[16]  The NFLPA released a statement stating that “’[u]nder governing labor law…an employee cannot be punished twice for the same action when all of the relevant facts were available to the employer at the time of the first punishment.’”[17]  The NFLPA is correct and this principle is an ironclad argument here.

The NFL Constitution affords the commissioner broad disciplinary authority over players, including for “conduct detrimental to the welfare of the League or professional football.”  NFL Constitution, Article VIII, § 8.13(A).  Article 46, § 1 of the Collective Bargaining Agreement also makes clear that the commissioner may issue fines or suspensions for conduct on the playing field or “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”  The CBA does contain a “one penalty” provision but that provision only forbids double punishment by the league and the team. Art. 46, § 4.  It is silent as to a double penalty by the commissioner alone.[18]

Some have suggested that Rice may, perhaps, be punished twice by the NFL because there is no explicit prohibition against double jeopardy.[19]  Others have suggested that Rice is not entitled to due process because the NFL is not a government entity.[20]  At least one commentator has correctly stated that the “the NFL Constitution should be read only to allow penalties to be lessened in severity, not increased” – but for the wrong reasons.[21]

Neither the NFL Constitution nor the CBA contain an explicit provision either permitting or prohibiting an increase in discipline.This is a somewhat surprising instance of either poor drafting or intentional vagueness.[22]The NFL Constitution discusses altering imposed discipline as follows, “The Commissioner shall have authority to change, reduce, modify, remit, or suspend any fine, suspension, or other discipline imposed by the Commissioner and not requiring approval of the member clubs.” NFL Constitution, Article VIII, § 8.13(E).

As can be seen, there is express authority to reduce imposed discipline but there is no explicit authority to increase discipline.  In contrast, the argument that the commissioner has the power to increase imposed discipline relies on considerably vaguer terms: “change” and “modify.”[23]  As a matter of simple intuition and reasonableness, the NFL clearly knew how to be specific in drafting its constitution, stating that the commissioner may “reduce” discipline.  If it wanted to reserve the authority to increase discipline, it very well could have, and should have, specifically stated that the commissioner retains the authority to “increase” discipline as well.  It did not.  For these reasons alone common sense dictates that the commissioner has no such authority.

This is also supported by basic principles of textual interpretation.  It is an old, and rather intuitive, maxim that surrounding words explain or amplify those it surrounds.  This concept was expressed in the legal maxim noscitur a sociis: “it is known from its associates,” or “associated words bear on another’s meaning.”  Reading Law: The Interpretation of Legal Texts 195 (Scalia & Garner 2012).  Supreme Court Justice Antonin Scalia and Bryan Garner explain that “[w]hen several nouns or verbs or adjectives or adverbs – any words – are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.  The canon especially holds that ‘words grouped in a list should be given related meanings.’”  Id.

Applying this longstanding principle to the NFL Constitution, Article VII, Section 8.13(E) provides that the Commissioner may “change, reduce, modify, remit, or suspend” any discipline.  Three of those options, “reduce,”[24] “remit,”[25] and “suspend,”[26] all afford the commissioner the power to alter the discipline imposed upon the disciplined player without an increase to the previously-imposed discipline.  To “change”[27] or “modify”[28] are vaguer terms which require context to bring them to life.  Here, given that the power to “change” or “modify” the discipline is in the context of reducing, remitting, or suspending disciplinary action, changing or modifying the discipline should be similarly construed.  In fact, this is further supported by the use of the term “modify.”  The Oxford Dictionary’s top definition for “modify” is to “[m]ake partial or minor changes to (something), typically so as to improve it or to make it less extreme.”  Black’s Law Dictionary’s secondary definition of modify likewise states that it is “[a] qualification or limitation of something.”[29]

Therefore, common sense and basic principles of textual construction make clear that the commissioner has no power to increase discipline after final discipline is imposed.

Finally, to the extent there could be any doubt as to the impermissibility of punishing Rice twice for the same offense, established principles of labor law preclude it.  There is an established family of concepts referred to as “industrial due process.”[30]  These concepts are “implicit in the labor contract.”[31]  Importantly, “industrial double jeopardy enshrines the idea that an employee should not be penalized twice for the same infraction.”  Zayas v. Bacardi Corp., 524 F.3d 65, 69 (1st Cir. 2008) (emphasis added).[32]  Commissioner Goodell initially suspended Ray Rice two games for domestic violence on July 24, 2014.[33]  On September 8, 2014 the commissioner suspended Rice for the same offense and same conduct.  The only change was TMZ’s apparent purchase and release of the video showing the conduct that the NFL already knew occurred and major public backlash.  This is prohibited under the doctrine of industrial double jeopardy.

It is clear that the NFL’s second suspension of Ray Rice finds no support in the NFL Constitution or the CBA.  Further, the second suspension violates fundamental principles of industrial due process.

In the wake of ever-increasing pressure on the NFL to improve its policing of the Personal Conduct Policy,[34] the NFL’s mishandling of the Ray Rice investigation,[35] the September 17 arrest of a player for aggravated assault,[36] and teams explicitly or implicitly admitting to issuing insufficient or improper discipline,[37] it is clear that the NFL needs to overhaul its policies and policing of its players.  Violating a player’s industrial due process rights is not a good start to fixing an obviously broken system.  For the sake of its players, their families, the fans, league sponsors, and the league itself, the NFL and NFLPA need to overhaul this process – and soon.


*    *    *

As senior counsel in Joseph, Greenwald & Laake’s Civil Litigation practice group, Levi Zaslow focuses his practice on employment law, commercial and business litigation, government litigation, and appellate law. A skilled and experienced litigator, Levi enjoys the variety of work his fast-paced litigation practice provides—from drafting motions and conducting legal research, to taking depositions and performing at trial.


[1] http://articles.baltimoresun.com/2014-02-16/sports/bal-ravens-running-back-ray-rice-arrested-after-incident-in-atlantic-city-20140216_1_ray-rice-chad-steele-ravens.  Interestingly, although various claims have been made regarding the existence and availability of the surveillance video capturing the actual punch and elevator altercation, this article from the Baltimore Sun, the day after the arrest, stated that the altercation “was recorded by video surveillance, according to a statement from police. Footage appeared to show both parties involved in a physical altercation.”  Likewise, the City of Atlantic City Department of Police issued a news release stating that it reviewed the surveillance footage displaying a physical altercation.

[2] http://tmz.vo.llnwd.net/o28/newsdesk/tmz_documents/0219-ray-rice-tmz-doc-01.pdf.

[6] http://espn.go.com/sportsnation/poll/conversation/_/id/4422569.

[7] http://espn.go.com/espnw/video/11262101/insufficient-punishment (“Keith Olbermann explains how sports sexism let the NFL get away with suspending a wife-beater for two games when an on-field stomp got another player a five-game suspension.”).

[9] http://time.com/3072840/roger-goodell-ray-rice-suspension-nfl/#3072840/roger-goodell-ray-rice-suspension-nfl (“’If it’s a first offense, someone who’s had a strong background of being very responsible in the community, doing the right things and not violating other policies or anything else that reflect poorly on the NFL, then we would take that into account,’ said NFL commissioner Roger Goodell.”).

[11] Id.

[13] http://www.foxnews.com/sports/2014/09/08/newly-surfaced-video-shows-ray-rice-punching-fiancee/.

[15] Id.

[18] The NFL Personal Conduct Policy, rather unhelpfully, provides:

Upon learning of conduct that may give rise to discipline, the League may initiate an investigation to include interviews and information gathering from medical, law enforcement, and other relevant professionals. On matters involving NFL players, the League will timely advise the NFLPA of the investigation and outcome. As appropriate, the employee will also have the opportunity, represented by counsel and/or a union official, to address the conduct at issue. Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted.

[21] http://thesportsesquires.com/2014/09/10/clarifying-the-chaos-what-is-really-going-on-with-the-nfl-personal-conduct-policy/#_ednref8 (citing NFL CBA, Article 46, Section 2(d)).

[23] “Of course, the Commissioner could argue that the NFL Constitution grants him the power to change or modify any discipline imposed, and that he was simply increasing Rice’s original discipline.”  http://thesportsesquires.com/2014/09/10/clarifying-the-chaos-what-is-really-going-on-with-the-nfl-personal-conduct-policy/#_ednref8.

[24] “Make smaller or less in amount, degree, or size.”  https://www.oed.com/search/dictionary/?scope=Entries&q=reduce.

[25] “Cancel or refrain from exacting or inflicting (a debt or punishment).”  https://www.oed.com/search/dictionary/?scope=Entries&q=remit.

[26] “Temporarily prevent from continuing or being in force or effect.”  https://www.oed.com/search/dictionary/?scope=Entries&q=suspend.

[28] “Make partial or minor changes to (something), typically so as to improve it or to make it less extreme.”  https://www.oed.com/search/dictionary/?scope=Entries&q=modifySee also Black’s Law Dictionary 1095 (9th ed. 2009) (Modification: “1. A change to something; an alteration”; “2. A qualification or limitation of something”).

[29] Black’s Law Dictionary 1095 (9th ed. 2009).

[30] Zayas v. Bacardi Corp., 524 F.3d 65, 68 (1st Cir. 2008) (citing 1 Tim Bornstein et al., Labor & Employment Arbitration § 15.01 (2d ed.1997); Ray J. Schoonhoven, Fairweather’s Practice & Procedure in Labor Arbitration § 13, at 374 (4th ed.1999)).

[31] Zayas v. Bacardi Corp., 524 F.3d 65, 68 (1st Cir. 2008).  See also 48A Am. Jur. 2d Labor and Labor Relations § 2389.  In fact, this principle is so strong that the First Circuit questioned whether parties to a CBA may even expressly agree to waive industrial due process concerns.  Id. at n. 2. The NFL and NFLPA have no express agreement to waive industrial due process.

[32] Zayas v. Bacardi Corp., 524 F.3d 65, 69 (1st Cir. 2008).  Numerous other sources have recognized this principle that, under a collective bargaining agreement, an employee may not be disciplined twice for the same transaction.  E.g. 51A C.J.S. Labor Relations § 382 (Where the first sanction has become final, “industrial double jeopardy enshrines the idea that an employee should not be penalized twice for the same infraction.”); Local Union No. 1, Bakery, Confectionery & Tobacco Workers Int’l Union, AFL-CIO-CLC v. Interstate Brands Corp., 2000 WL 126798 (N.D. Ill. Feb. 1, 2000) (noting that “the arbitrator found Plaintiff’s discharge could not stand because Defendant had already chosen to punish him through a written warning. Under the principle of double jeopardy-prohibited, in the arbitrator’s view, as a violation of the employee’s right to industrial due process—the employee could not be punished for the same offense twice.”).  See also In re City of Kenosha, 76 Lab. Arb. Rep. 758, 759 (1981) (In industrial relations, the doctrine of double jeopardy means that if an employe[e] is punished for a specific act, he is entitled to regard such punishment as final for that particular misconduct.”) and In re Int’l Harvester Co., 16 Lab. Arb. Rep. 616 (1951) (“I conclude that if Hall was punished twice for the same offense or offenses the second penalty must be set aside.”) (cited in Montgomery County v. Krieger, 110 Md. App. 717, 731-32, 678 A.2d 621, 628 (1996)); http://laborandemploymentarbitrator.com/double_jeopardy_in_labor_arbitration.

[37] Adrian Peterson Put on Exempt List, http://espn.go.com/nfl/story/_/id/11543234/minnesota-vikings-admit-mistake-bar-adrian-peterson-all-activities (“Admitting they ‘made a mistake,’ the Minnesota Vikings changed course Wednesday as running back Adrian Peterson was placed on the NFL’s exempt list, barring him from all team activities until his child abuse case is resolved.”); Greg Hardy Placed on Exempt List, http://espn.go.com/nfl/story/_/id/11543641/greg-hardy-carolina-panthers-expected-placed-exempt-list; N.F.L. Domestic Violence Policy Toughened in Wake of Ray Rice Case, http://www.nytimes.com/2014/08/29/sports/football/roger-goodell-admits-he-was-wrong-and-alters-nfl-policy-on-domestic-violence.html?_r=0 (I didn’t get it right. Simply put, we have to do better. And we will.”).

Jay Holland was recently quoted in an ERE.net article entitled Would the EEOC Like the Words You Use?

Commenting on the use of linguistic analysis in employment discrimination cases, Holland explains that in our digitized world, this form of analysis may have value in EEOC-type cases. Even though linguistic analysis has not yet been used in employment discrimination cases, future application is highly probable. 

Holland heads up Joseph Greenwald & Laake’s Labor & Employment practice and can be reached at jholland@jgllaw.com.

Social Media Discovery with Personal Injury Claims

Earlier this year, Tamara O’Connell on the JGL Blog discussed whether social media evidence is admissible at trial. Today, we consider a related issue: the discoverability of social media evidence in a personal injury claim.

Since the explosion of social media usage, numerous personal injury cases have been sunk by ill-advised social media posts. Instinctively, this makes sense. For example, if your client is claiming that he or she can no longer do a certain activity as a result of the accident at issue and there is evidence in a social media post of your client doing that same activity post-accident, then it stands to reason that the social media post would be discoverable (and likely admissible at trial). In today’s on-line world, there can be little doubt that claims representatives and opposing attorneys use information publically available over the Internet in order to assess your client, your client’s claims, and to look for potential impeachment evidence.   

However, what happens once a personal injury claim goes into litigation? Does opposing counsel have the right to propound a discovery request seeking unfettered access to all of your client’s private social media accounts in the hope of finding a nugget of potential impeachment evidence?

While there is no Maryland personal injury case directly on point, and while this is an evolving area of law, courts in several jurisdictions have found that the scope of social media discovery is not unlimited. The United States District Court for the Eastern District of Michigan has summarized the generally prevailing view on the discoverability of social media evidence as follows:

[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients, but not available for viewing the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with [Fed. R. Civ. P. 26(b)] there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in plaintiff’s Facebook account[i][ii].

At least one Pennsylvania trial court has held that the threshold may be met “by showing that publicly accessible information posted on the user’s Facebook[iii] page controvert or challenges the user’s claims or defenses in the pending litigation.”[iv] That said, discovery seeking disclosure of social media evidence should consist of more than a general request for disclosure of the passwords to the claimant’s various social media accounts.[v] Any such request should be objected to and opposed, most likely by way of a motion for protective order. Other information developed in the course of discovery may be used to make the required showing (e.g., deposition testimony indicating that your client posted relevant information to social media).

However, there are several common sense steps that can be taken early on in order to avoid having your client’s personal injury case damaged by social media evidence. From your first contact with a personal injury client, you should urge them, both verbally and in writing, to be extremely judicious in what he or she posts on social media going forward, to elevate the privacy settings on their social media accounts, not to accept “friend requests” from people they do not personally know, to avoid posting photographs and/or video evidence of their activities, and not to comment on the status of their case, the parties, the attorneys, or their state of mind. Simply ceasing all social media activity until the conclusion of the case would be best. However, this advice is not likely to be followed, particularly by younger clients.

Moreover, clients should be counseled that they should not delete any of their accounts and/or delete or alter any of their social media posts in an effort to “clean up” their accounts. As such, clients should consider their past social media postings to be frozen until the end of the case. Failure to preserve relevant social media posts may be considered “spoliation” of evidence, thereby entitling a judge or a jury to infer that any lost and/or destroyed evidence would have been adverse to your client’s case. In most instances, the inference that relevant evidence has been destroyed is more damaging to the case than the actual social media evidence itself.

Further, it should be emphasized that a party’s duty to preserve potentially relevant evidence begins at “the moment [litigation] is reasonably anticipated.”[vi] Parties, and their attorneys, who fail to preserve electronically stored information may subject themselves to potential sanctions[vii]. This too, should be avoided.   

 


[i]           Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

[ii]           See also Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012); Fawcett v. Altieri, 960 N.Y.S. 2d 592, 597 (2012) (“Information posted in open on social media accounts are freely discoverable and do not require court orders disclose them. However, this court will not go so far is to hold that all social media records are material and necessary based solely on the fact that many people availed themselves to the social media sites. In order to obtain a closed or private social media account by court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary system subscriber has posted information or photographs that are relevant to the facts of the case at hand”).

[iii]          While the cases cited in this post discuss the discoverability of a claimant’s Facebook page, there is no reason to believe that the same rationale would not apply to other forms of social media (Twitter, Instagram, Tumblr, etc.). Of course, this is subject to change as social media services continue to develop.

[iv]          Brogan v. Rosenn, Jenkins & Greenwald, LLP, 2013 WL 1742689 at *6 (Pa. Com. Pl. Apr. 22, 2013).

[v]           Brogan, 2013 WL 1742689 at * 8 (“A discovery request seeking carte blanche access to private social networking information is overly intrusive, would cause unreasonable embarrassment and burden in contravention of Pa. R. C. P. 4011(b), and is not properly tailored ‘with reasonable particularity’ as required by the Pennsylvania Rules of Civil Procedure. While a limited degree of ‘fishing’ is expected to be expected with certain discovery requests, parties are not permitted to fish with a net rather than with a hook or a harpoon”) (quoting Brownstein v. Philadelphia Transp. Co., 46 Pa. D&C.2d 463, 464 (Phila. Co. 1969); see also Mailhoit, 285 F.R.D. at 570.

[vi]           Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521 (D. Md.).

[vii]         Id.

 

The Sixth Circuit Court of Appeals in Wallace v. FedEx Corp upholds a jury award for the plaintiff and weighs in on the notice requirements of both employees and employers under the FMLA.

(more…)

We are pleased to announce that five of our partners are listed in the new edition of The Best Lawyers in America.

Congratulations to:
David Bulitt for his work in Family Law
Stephen A. Friedman for his work in Personal Injury
Jeffery N. Greenblatt for his work in Family Law
Andrew E. Greenwald for his work in both Medical Malpractice and Personal Injury, and
Timothy P. O’Brien for his work in Trusts & Estates.

The Best Lawyers in America selection process involves an exhaustive and rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. We are very proud of our attorneys for being recognized by their peers in their respective areas of law.

JGL attorneys, Cary Hansel and Matt Ling stepped up to the ALS Ice Bucket Challenge this week in response to a client nomination. Sporting suits and ties in the office, Hansel and Ling bravely dumped buckets of ice water over their heads, joining the cause to raise awareness and funds for ALS research.

Matt and Cary not only followed through with the Ice Bucket Challenge, they also will be donating a portion of their fees from a recent civil rights case to the ALS Association. For more information on how you can get involved, visit the ALS Association website.

 

 

ALS, also known as “Lou Gehrig’s Disease,” is a progressive neurodegenerative disease that affects the nerve cells in the brain and spinal cord. To date, the Ice Bucket Challenge has raised millions of dollars worldwide to help fund research into treatment options and hopefully one day, a cure.

Matt and Cary stand with the rest of the JGL family in support of ALS victims.

Late on Friday, August 22, a Baltimore jury returned a $100,000 verdict against two former Baltimore police officers for beating a 16 year-old boy. Plainclothes officers in an unmarked car encountered the boy walking beside a family member’s home in the Park Heights neighborhood in the early morning hours of July 10, 2010.

The plaintiff’s case was that the Caucasian officers provoked the young African American boy to run by shouting racial epithets and other insults at him. When he ran in fear, two officers chased the child to the rear of his family’s home, where the plaintiff testified that he was savagely beaten, punched, kicked, choked and handcuffed. The boy was slightly built, 5’4” and approximately 120 pounds at the time.

Three independent witnesses testified that they saw the officers beat the minor. After two of the witnesses were seen by officers, the beating victim was handcuffed and transported to a different location approximately 3 blocks away, where he was searched and released without charges.

In closing argument, the plaintiff’s counsel, Cary J. Hansel, of the Greenbelt law firm, Joseph, Greenwald & Laake, argued that the minor was moved as part of a cover up so that when supervisors responded to the minor’s new location, there would be no witnesses there to the attack.

The officers, who were with the now-disbanded Violent Crimes Impact Division, used the incident as a pretext to search and interrogate the boy about any crime in the area. He had no such information to provide them and the search turned up no contraband.

The former officers found liable were Kody Taylor and Matthew Sarver. Both left the department after the events underlying the lawsuit. At trial, Taylor took the Fifth Amendment to avoid testifying about the circumstances surrounding his departure from the Baltimore Police Department in the face of an integrity sting. The sting resulted in allegations that Taylor was involved with pocketing money recovered from an undercover officer posing as an arrestee.

Hansel, who is well-known for his police misconduct work, including a 2006 verdict that remains the highest civil rights verdict ever collected in Maryland, had this to say, “The jury restored one brave young man’s dignity while protecting all of our rights. My office will continue this fight until these abuses stop once and for all.”

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(Pro Football, Inc. d/b/a/ The Washington Redskins)

DC’s professional football team, the Washington Redskins, has been in the news quite a bit as of late – and most of it has not been good. Earlier this summer, the U.S. Patent and Trademark Office issued a 2-1 ruling in Blackhorse v. Pro-Football, Inc. cancelling the team’s trademarks.

Check out our previous post on this subject: Hail to the ???: The Battle over the Washington Redskins’ Name Heads to Court. That decision has fueled enormous controversy as to whether the team name should be changed. Even now, in Green v. Pro Football. Inc.[1]a federal court has refrained from addressing the team by its official name, and instead refers to it as the “Washington team.”[2]

Now, the Redskins are embroiled in a very different type of litigation in the U.S. District Court in Maryland. At issue in Green v. Pro Football. Inc. is an alleged Redskins’ bounty program. Former New York Giants player, Barrett Green, has alleged that he was injured as a direct result of the Redskins’ bounty program run by former defensive coordinator, Gregg Williams. Bounty programs involve providing players with incentives, in this case financial incentives, to deliberately injure opposing players.[3]

A play-by-play on the facts of the case

Barrett Green played for the New York Giants from 2000-2004. In 2004, Green sustained a knee injury, which was listed on an injury report.[4] Shortly thereafter, the Redskins played against the Giants, and Green sustained a career ending injury when former Redskins player Robert Royal performed an illegal maneuver and “lowered his helmet and at full speed dove into Green’s knees.”[5]

Green maintains that though he initially suspected foul play, he relied on representations made by Royal and others that the incident was unintentional. In 2012, however, the Washington Post published an article on the alleged bounty program.[6] Subsequently, the NFL launched its own investigation, and confirmed that while with the New Orleans Saints, Williams had administered a bounty program.[7]

With this new information, Green filed suit in Prince George’s County against the Redskins and Royal for state law torts he suffered as a result of the bounty program. The suit has since been removed to the U.S. District Court for the District of Maryland. Recently, the defendants filed Motions to Dismiss, or in the Alternative, for Summary Judgment.

 The Court Ruled that the Counts Associated with the Alleged Bounty Program Can Proceed to Trial

In support of their arguments to have the case dismissed, the defendants argued that (1) the claims were barred under the statute of limitations, and (2) a Collective Bargaining Agreement (“CBA”) preempted state law claims pursuant to the Labor Management Relations Act, 29 U.S.C. § 185(a).

In Maryland, generally the statute of limitations bars a claim if it is not brought within three years of the occurrence. The discovery rule, however, is an exception and the statute begins to run once an individual gains knowledge or discovers the basis for a claim. Another exception relates to the fraudulent concealment doctrine.

The Court stated that Green’s claims fell into two categories: those associated with the bounty program and those that were independent of the bounty program. The Court dismissed the claims which were not linked to the bounty program since they were clearly barred by the statute of limitations, and did not meet a qualifying exception. In other words, he should have brought them back when he knew about them and within the three year period to bring a claim in Maryland.

However, the Court ruled that the statute of limitations did not bar Green’s bounty program claims since he did not discover the existence of the alleged bounty program until 2012. Since he could not have filed suit for something he could not have discovered back then, the Court will allow the bounty program claims to remain though they were filed after Maryland’s three-year filing period. The Court was satisfied that Green alleged facts sufficient for a jury to make a determination as to whether or not the defendants fraudulently concealed a bounty program. For example, in 2004, Royal participated in a press conference and stated that the hit was not intentional. In his pleadings, Green alleges this and other misrepresentations prevented Green from learning of the existence of the bounty program until 2012.

Most league disputes do not make it into the courts since their CBA requires arbitration. The team argued that this case is no different. However, the Court rejected the defendant’s argument of preemption by a CBA since the case involves claims of intentional torts and not issues that are traditionally covered by a CBA such as labor disputes. “Suggesting that the intended target of the mayhem could in any way be bound by a CBA to yield his right to seek legal redress in the face of such deliberate aggression is not only inadmissible; it is ludicrous.”[8] Lastly, the Court granted Green’s request to amend his complaint to add a claim for civil conspiracy.

As a result of this ruling, the Redskins must now prepare to go to trial in federal court over this issue of the bounty program. There will certainly be more to come.

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[1]Green v. Pro Football, Inc., CIV. PJM 13-1961, 2014 WL 3385927 (D. Md. July 8, 2014).

[2] Green at 1.

[3] Id. at 1.

[4] Id. at 2.

[5] Id.

[6] Mark Maske, Washington Redskins Offered Bounties for Big Hits Under Former Assistant Coach Gregg Williams, Washington Post (Mar. 2, 2012), http://www.washingtonpost.com/sports/redskins/washington-redskins-offered-bounties-for-big-hits-under-former-assistant-coach-gregg-williams/2012/03/02/gIQAH0RlnR_story.html

[7] Mark Maske, NFL Bounty Penalties: Sean Payton, Gregg Williams, Mickey Loomis Suspended, Washington Post (Mar.. 3, 2012), http://www.washingtonpost.com/blogs/football-insider/post/nfl-bounty-penalties-sean-payton-gregg-williams-mickey-loomis-suspended/2012/03/21/gIQAJHd0RS_blog.html

[8] Id. at 20.

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