More documents filed in AtPac case

"The jousting continues between the attorney for Nevada County and its current software provider, Florida-based Aptitude Solutions, and the attorney for Auburn-based software firm AtPac Inc., with both filing documents in front of a federal judge Monday.

"AtPac Inc. filed suit in U.S. District Court in Sacramento in February against Nevada County, Clerk-Recorder Gregory Diaz and Aptitude Solutions, alleging violations of the Computer Fraud and Abuse Act and copyright infringement of AtPac's software. (also Breach of Contract and Misappropriation of Trade Secrets)

"Nevada County's outside counsel, Cypress LLC, was ordered to produce all documents in response to discovery requests by last Friday — a deadline they allegedly missed, according to AtPac attorney Michael Thomas of Downey Brand.

"'Not so,' said Caroline Mankey, the county's attorney.

"'We have produced everything, all the responsive documents,' Mankey said Wednesday afternoon. 'It's our position we've served everything that was required.' (albeit five days late)

"Mankey also disputed Thomas' assertion that being ordered by a judge to pay his $20,000 cost to file earlier motions was a sanction.

"'I don't look at it that way,' she said. 'Often, the court orders one party or another to pay (in discovery disputes). It's a common occurrence. It's unfortunate, but it doesn't reflect on the merits of the overall case.'

The rest of the article is here.

Let's talk about what "discovery" is and how it works. Once a lawsuit gets underway, parties to the lawsuit start gathering information related to the lawsuit. This investigative process is aptly named "discovery," because it often turns up facts and documents that were previously unknown - to at least one party to the lawsuit anyway.

Discovery is supposed to take place outside the courtroom, with parties exchanging written information and sitting through depositions. However, when the parties fail to agree on what should be handed over in discovery, the judge assigned to the case resolves the dispute - a motion to compel under Rule 37 in Federal Court.

Pursuant to Rule 37 and if the motion to compel is granted the court must require the party whose conduct necessitated the motion to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.

But the court must not order this payment if the opposing party's nondisclosure was substantially justified. The federal judge found that the non-disclosure by the County and Diaz "was not substantially justified."

Further, and contrary to the spin that Ms. Mankey is putting on the case, sanctions are only awarded in the most egregious circumstances.

The only thing missed by The Union is a minute, yet significant, legal detail. The magistrate ordered that the County and Diaz waived all objections and privileges - this includes the attorney/client privilege.

This means that AtPac could be able to read letters among the County, County Counsel, Diaz, Aptitude Solutions, and their lawyers in LA.

I spoke with a good friend of mine who was a very aggressive insurance defense trial attorney in LA for over 25 years - this never happened to him. In a discovery dispute, wavier of the attorney/client privilege was his worst discovery nightmare.

I suspect that it will be the County's too.