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Whose Cost Is It?
By Joel
H. Mirman, Esq.
 A New York Federal
District Court recently issued a decision challenging
what had been considered to be the “Gold Standard”
regarding who pays the high cost of responding
to discovery requests requiring expensive production
of electronically stored data.
In Zubulake v. UBS Warburg,
2003 WL 21087884 (S.D.N.Y. May 13, 2003), the
Plaintiff requested that the Defendant produce
"[a]ll documents concerning any communication
by or between UBS employees concerning Plaintiff."
The Plaintiff knew that additional responsive
e-mail existed that the Defendant had failed
to produce. She requested that the Defendant
produce the e-mail from archival media. Claiming
undue burden and expense, the Defendant urged
the court to shift the cost of production to
the Plaintiff, citing the Rowe Entertainment,
Inc. v. The William Morris Agency, 205 F.R.D.
421 (S.D.N.Y. 2002) decision.
The court noted that the
application of the Rowe factors may result in
disproportionate cost shifting away from large
defendants, and the court modified the test
(adding two factors, combining two and removing
one) to seven factors:
1. The extent to which
the request is specifically tailored to discover
----- relevant
information;
2. The availability
of such information from other sources;
3. The total cost of
production compared to the amount in controversy;
4. The total cost of
production compared to the resources available
to
----- each party;
5. The relative ability
of each party to control costs and its incentive
to do so;
6. The importance of
the issue at stake in the litigation and;
7. The relative benefits
to the parties of obtaining the information.
The court listed the factors
in descending order of importance, stating that
they should not all be weighted equally. Applying
the new test, the court ordered the Defendant
to produce, at its own expense, all responsive
e-mail existing on its optical disks, active
servers, and five backup tapes as selected by
the Plaintiff. The court determined that
only after the contents of the backup tapes
are reviewed and the Defendant's costs are quantified
will the court conduct the appropriate cost-shifting
analysis.
Companies should consider
re-evaluating how they store their data in order
to minimize production costs in the event they
are confronted with such requests.
Joel
Mirman
is a Shareholder and a member of the
Litigation Practice Group. He can be contacted
at jmirman@bdblaw.com
or 614.227.4264.
Recording Fees to Double
By Grant
M. Yoakum, Esq.
 A portion of Ohio's
current budget bill doubles certain costs associated
with real estate documents. House Bill
195 was passed by the Ohio Legislature, and
one of the means for increasing revenues is
that effective August 1, 2003, the recording
fees and copy costs will double at all of Ohio's
county recorders. In other words, a two-page
deed that previously cost $20 to record will
now be $40. Obviously, the increased cost
will have the most significance for documents
containing more pages, such as a condominium
declaration and by-laws or recorded loan documents.
The increased cost for copies will likewise
be more significant for lengthy documents that
are not available through another source.
It is not clear at this time whether the individual
county recorder, auditor or fiscal officer will
have any discretion in implementing the higher
fees. If you need to record lengthy documents
and can control the timing, you should try to
complete the process early and avoid the August
1, 2003 fee increases.
Grant
Yoakum is an Associate attorney
and member of the Real Estate & Construction
Law and Business Law Practice Groups.
He can be contacted at gyoakum@bdblaw.com
or 216.615.7356.
Avoid Outdated and Unachievable
Insurance Requirements
By Kenneth
A. Fisher, Jr., AIA, CSI
 Several common errors
in construction contracts result from the use
of outdated and unachievable insurance requirements.
While many of these problems go unnoticed or
are simply ignored in the routine exchange of
insurance certificates, some of the errors could
lead to expensive consequences.
The most persistent error involves
the specification of commercial general liability
coverage. Although the name was changed
to “commercial general liability” over
20 years ago, many contracts still refer to
“comprehensive general liability” insurance.
Even older names that occasionally appear include
public liability insurance, manufacturers and
contractors liability insurance, and contractual
liability insurance.
Similarly, business auto liability
insurance is often incorrectly called “comprehensive
automobile liability.” And rather than
a “combined single” limit, the proper way to
specify limits on business auto coverage is
through an “each accident” limit.
A more serious problem concerns builder’s
risk insurance. The AIA’s A201-1997, General
Conditions of the Contract for Construction,
for example, requires “property insurance written
on a builder’s risk ‘all-risk’ or equivalent
policy form.” Builder’s risk policies,
however, typically exclude various perils which
would be included in a true “all risk” form.
The gap between requirements and
available coverage also extends to the A201’s
waiver of subrogation. That waiver explicitly
includes “the Architect [and the] Architect’s
consultants.” Most builder’s risk insurers,
however, will not agree to waive subrogation
against design professionals.
The solution to the builder’s risk
problems is to strike the unachievable requirements
and describe the particular policy that the
owner intends to purchase or specify that the
owner will purchase “commercially available”
coverage.
Misnomers and unachievable requirements
also plague additional-insured requirements.
The terms “additional named insured,” “named
insured,” and “coinsured” are no longer used.
The current term is “additional insured.”
Two commonly specified but unachievable requirements
are mandating additional insureds on a builder’s
risk policy or that a person be named as an
additional insured on a professional liability
policy although the person is not a member of
the associated profession.
Kenneth
Fisher is an Associate
attorney and a member of the Real Estate &
Construction and Litigation Practice Groups.
He can be contacted at kfisher@bdblaw.comor
614.227.4290.
Buckingham
to Serve as Counsel for Insureds of Chubb Insurance
Company
Buckingham, Doolittle & Burroughs
is pleased to announce that Chubb Insurance
Company has approved Buckingham to serve as
counsel for its insureds. Chubb is especially
strong in areas such as directors and officers
liability insurance (in profit and nonprofit
areas), employment insurance and other niche
risks. If you are currently insured with
Chubb, and wish to have a Buckingham attorney
represent your Company, your nonprofit or you
as an individual, you need only request that
your broker include a rider specifying defense
work by Buckingham. Chubb has agreed to
honor these requests. If you have any
questions, you can contact Gerald B. Chattman,
Managing Partner of Buckingham, Doolittle &
Burroughs, LLP, Cleveland.
 Gerald
Chattman is a Shareholder and
member of the Employment Law Practice Group.
He can be contacted at gchattman@bdblaw.com
or 216.615.7354.
Practice Group Profile Featuring Donald B. Leach, Jr., Esq.
 Donald
B. Leach, Jr. is Managing Partner of
the Columbus office of Buckingham, Doolittle
& Burroughs and currently serves as Vice
President and Assistant Treasurer of the Firm’s
Board of Managers. A graduate of Union
College, Schenectady, New York, Don earned his
Juris Doctorate from The Ohio State University
College of Law. He has a Martindale-Hubbell
rating of AV, which indicates very high to pre-eminent
legal ability and very high ethical standards,
and is listed in the 2003-2004 edition of The
Best Lawyers in America® and the 2002-2003
edition of Chambers Global – The World’s
Leading Lawyers. He is a recipient
of the Columbus Bar Association Community Service
Award and is a member of the Million Dollar
Advocates Forum.
This year Don received a unique honor:
He is the 49th recipient of the Cornerstone
Award from the Builders Exchange of Central
Ohio – the first attorney to be so honored.
The Builders Exchange is a 110-year-old, 1300-member
commercial construction trade association based
in Columbus. Don was the first practicing
attorney to ever be elected to the organization’s
Board of Directors and to serve as its President.
He has spearheaded the participation of Buckingham,
Doolittle & Burroughs in the Builders Exchange,
taught many of its educational programs, and
was involved in the creation of a number of
BX programs, including its Idea Exchange and
the Law Group. During Don’s term as President,
the Builders Exchange adopted a strategic plan
that is still an integral part of its success.
“The Cornerstone Award is a great
honor,” says Don. “It recognizes the volunteer
hours I have devoted to the Builders Exchange
and to the industry. I earn my livelihood
from this industry, and I believe that it is
appropriate for me to give back, to give time
to improve the way things happen in construction.
Through the Builders Exchange, I have been able
to facilitate communication and organize efforts
that have benefited many different members of
the construction industry.”
Don values the role of Builders Exchange
in fostering communication and cooperation.
“Both the legal profession and the construction
industry are experiencing changes due to technology
as well as time and money pressures. But
both still boil down to relationships.
The Builders Exchange is a terrific resource
for the central Ohio construction industry –
it’s a forum for people to work and meet in
a non-competitive environment.
“A spin-off benefit of my involvement
in the Builders Exchange has been that I have
been able to provide an added service to clients
because I have had the chance to meet so many
of those who are involved in the construction
industry,” Don continues. “This enables
me to provide service beyond the expected because
I can know who to contact when an issue comes
up so that it can be addressed. This gives
me the chance to do what I really love – solve
problems.”
In any construction project, Don
focuses on both the details of a construction
project and the “big picture” of what his client
needs to achieve. He starts by helping
his client develop appropriate relationships
with the wide range of people and businesses
providing the services needed to complete the
project. During the contracting process
he helps his client define the risks involved
and clarify how they will be handled and who
will be responsible for each.
As the construction progresses, Don
explains, “Issues will arise. It’s impossible
to anticipate everything that may come up.
I will then work to help resolve any problems.
I have found that it is crucial to address the
issues as they arise and not let them fester.
At the end, I work with my client to clean up
loose ends and unresolved issues – and then
to celebrate the successful result!”
A lifelong resident of the Columbus
area, Don has served as treasurer for a number
of Columbus Public Schools levy and bond-issue
campaigns and is active in a number of community
organizations, including the Upper Arlington
Parks and Recreation Advisory Board, the Upper
Arlington Civic Association, The Rotary Club
of Columbus and the YMCA Youth in Government
Program. Don’s commitment to the welfare
of the construction trade and the legal profession
is illustrated by leadership positions he has
held for the Construction Law Committee and
the Real Property Institute of the Columbus
Bar Association. He is also a member of
the Government, Education & Construction
Law Committee of the Ohio State Bar Association.
Don is proud – and relieved – to
have survived five years of service coaching
his daughter Anna’s elementary soccer team and
is currently wondering why he allowed himself
to be elected President of the parent organization
for his daughter Gwen’s high school rowing team.
Joking aside, though, he is grateful for tremendous
support and balance in his life provided by
his wonderful wife Jane, who has just resumed
her career as an elementary school principal
with the Columbus Public Schools, and his active,
involved teenaged daughters.
Don
Leach is a Shareholder and member
of the Real Estate & Construction Law and
Business Law Practice Groups. He can be
contacted at dleach@bdblaw.com
or 614.227.4262.
The attorneys of Buckingham,
Doolittle & Burroughs are committed to providing
you with timely legal news that is helpful to
you and your business. Please
take a moment to answer a few questions about
our newsletter so we may continue to send you
the news you want to read about.
To complete the survey on line go to: http://www.bdblaw.com/newpublications3.asp or
click here for a printer
friendly version, complete and fax to 330.252.5473
Attn: Lorna Henderson
Out and About – Recent
Presentations:
Robert
A. Hager, John
P. Slagter (Buckingham ClevelandSM),
and David
W. Woodburn (Buckingham AkronSM)
were presenters at the Buckingham Annual
Real Estate & Construction Law Seminar held
in Akron, Ohio. Their topics were “Fairness
in Contracting Act: ‘Level the Playing
Field,’” “Legal Strategies for Real Property
Tax,” and “Case Law Update.”
RobertA.
Hager(Buckingham ClevelandSM)
presented “Litigation of Liens” at
the Ohio State Bar Association sponsored seminar
titled “Real Estate Litigation” in Cleveland,
Ohio.
Donald
B. Leach, Jr. (Buckingham ColumbusSM)presented
“Liens and Encumbrances Affecting Real Estate”
on behalf of the Ohio State Bar Association
Continuing Legal Education Institute in Columbus,
Ohio. He also spoke on “The How’s and
Why’s of Paperwork” at the Ohio’s Mechanics’
Lien Law Seminar sponsored by The Builders Exchange
of Central Ohio.
CraigB.
Paynter(Buckingham ColumbusSM)
gave a presentation titled “Litigation
of Liens” at the Ohio State Bar Association
Seminar in Columbus, Ohio.
John
P. Slagter(Buckingham ClevelandSM)spoke
at “Boundary Law in Ohio,” sponsored by the
National Business Institute. His topics
were “Water Boundaries, Ethics, and Handling
Right-of-Way Problems.”
William
G. Williams(Buckingham CantonSM)
organized and moderated the Stark County Bar
Association sponsored seminar titled “Stark
County Government’s Involvement in Real Estate
Transactions” held in Canton, Ohio.
If you are interested in obtaining information
on upcoming seminars or would be interested
in having speakers from Buckingham, Doolittle
& Burroughs, LLP make a presentation to
your organization, please contact: Lorna Henderson,
Sr. Marketing Coordinator, at lhenderson@bdblaw.com
or 800.686.2825 ext. 473.
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