www.FulkersonLotz.com

The Good, The Bad And The Ugly…

November 29, 2012

Trying Cases With Really Bad Documents

Stored

Dealings Become Data

Backed-up

Information is Generated and

Shared Abundantly

Made Someone Else’s

Responsibility

Mixed Use Development –Condominiums, Retail and

Apartments

35 Investors, $3 million each = $105 million totalStarted 2005, Target Completion Date = July

1, 2007

ACCOLLC

$25 Million in Additional Funding

RequiredCompletion Date Pushed from July, 2007 to Dec.

31, 2008

Permitting Problems Liquidity Crisis

Construction Delays

Cost Overruns

Bad General Cont.

ACCOLLC

Mixed Use Development –Condominiums, Retail and

Apartments

The Investors Sue Acco

• Breach of Contract

• Negligence

• Breach of Fiduciary Duty

• 5 Types of Fraud

There might be some bad

documents, but they’re mostly

privileged.

General Counsel for

Acco

ACCOLLC

Bad doc #1

Permitting Problems

ACCOLLC

Bad doc #1, con’t

Permitting Problems

No reply from Anderson . Expenses

passed on to investors

Permitting Problems

Bad doc #2

ACCOLLC

General Contractor

Bad doc #3

ACCOLLC

General Contractor

Bad doc #3, con’t

ACCOLLC

General Contractor

Bad doc #4

ACCOLLC

Construction Delays

Bad doc #5

ACCOLLC

Construction Delays

Bad doc #5 con’t

ACCOLLC

Liquidity Crisis

Bad doc #6

ACCOLLC

Bad doc #6 con’t

Liquidity Crisis

Do I have all the bad docs? Are there more?

Are the bad docs privileged?

What explains these documents?

Transcendent facts?

Obtain full client acknowledgement and a commitment to full production

Discover and test

Orient witnesses to

state the case

Calling All Documents

Privileged

Err on the Side of Production

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.

Test Neutral or Positive Explanationsfor reasonableness and acceptability

to your fact finder

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

Testing Explanations

Familiar with all bad documents

Acknowledge if/when necessary

Path to positive explanations, transcendent facts

Witness Preparation

Don’t over-explain

Don’t hide

Explain early and well, give transcendent facts

Over-prove, prove through others

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