Articles Posted in Pretrial Practice and Civil Procedure

When specific and identifiable litigation becomes reasonably foreseeable, those likely to be involved in the litigation and with awareness of their likely involvement have a duty to preserve potentially relevant evidence. Failure of such a party to take reasonable steps to preserve the evidence–or intentional alteration, concealment, or destruction of evidence–is known as “spoliation of evidence” (often misspelled as “spoilation of evidence,” which is not a thing) and can result in severe sanctions if other litigants are prejudiced by their inability to use the missing evidence at trial. (See Va. Code § 8.01-379.2:1) Typically, the court will instruct the jury that it may (or must) presume that the evidence–had it been preserved–would have been unfavorable to the party who failed to preserve it. Sometimes, however, in particularly egregious circumstances, the court can dismiss the action (if the plaintiff is guilty of spoliation) or enter a default judgment (if spoliation was committed by the defendant).

Case in point: QueTel Corp. v. Hisham Abbas, No. 18-2334 (4th Cir. (Va.) July 16, 2020). QueTel brought this action against Hisham Abbas, Shorouk Mansour, and Finalcover, LLC, for misappropriation of trade secrets, copyright infringement, and other claims. The gist of the lawsuit was that Abbas–a former QueTel employee–allegedly stole source code from QueTel’s copyrighted software (TraQ Suite 6) and used it in a competing product (CaseGuard). QueTel sent the defendants a cease-and-desist letter in which it demanded that they:

  1. cease infringing on QueTel’s intellectual property including the source code underlying the TraQ Suite 6 software;
  2. cease all advertising, promotion, and sale of the CaseGuard software;
  3. provide an accounting of all sales of the CascGuard software made to date; and
  4. allow QueTel to copy and inspect a complete copy of all versions of the CaseGuard source code as well as any computers that Abbas used during the period from January l, 2014 to the present.

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One of the delightful aspects of practicing law in Virginia is that we still get to use antiquated legal terms that most states stopped using a century or so ago. Where a lawyer might file a motion to dismiss in some states, here we file a “demurrer” or a “plea in bar.” Rather than move for a directed verdict or judgment as a matter of law at the close of the plaintiff’s evidence at trial, we make a “motion to strike.” Until relatively recently, we weren’t even initiating lawsuits with complaints; we were filing “motions for judgment” instead. In today’s blog post, I’m going to tell you about a fun little motion we call a “motion craving oyer.”

A motion craving oyer sounds a lot more exotic than it is. To “crave oyer” is simply to demand production of a written instrument when a plaintiff files a lawsuit based on that instrument but fails to attach a copy to the complaint. It’s based on the idea that a court can’t rule intelligently on a claim without having the opportunity to see all essential documents upon which the claim is based. “When a court is asked to make a ruling on any paper or record, it is its duty to require the pleader to produce all material parts.” (Culpeper National Bank v. Morris, 168 Va. 379, 382-83 (1937)). Motions craving oyer should be granted, however, only where the missing documents are essential to the claim. (Byrne v. City of Alexandria (Va. Sup. Ct. May 28, 2020)). These motions can be useful when a defendant may have defenses to a lawsuit that aren’t apparent without examining the instrument in question. If oyer is granted, the instrument becomes part of the complaint and a defendant can proceed to file other responsive pleadings that may be appropriate.

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As a general rule, legal rights may be waived by contractual agreement. The protection afforded by statutes of limitations may be waived like other rights, but only in very narrow circumstances, due to a Virginia law that few know about. The General Assembly decided to make it a bit more difficult to waive a statute of limitations than some other rights, and enacted Virginia Code § 8.01-232, which states in pertinent part as follows:

Whenever the failure to enforce a promise, written or unwritten, not to plead the statute of limitations would operate as a fraud on the promisee, the promisor shall be estopped to plead the statute. In all other cases, an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.

Now that’s a pile of nearly incomprehensible legalese. One of the purposes of this blog, however, is to help people understand stuff like this, so let me try to decode it for you.

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If you get sued in Virginia on a claim your lawyer tells you is likely barred by the statute of limitations, you can raise the defense by way of a so-called “plea in bar.” A plea in bar is a pleading that presents a single set of facts that, if proven true, would bar the plaintiff’s claim from going forward. For example, if you can prove that the plaintiff’s claim arose earlier than the maximum amount of time permitted under the applicable statute of limitations, you may choose to file a plea in bar at the outset of the case to ask the court to dismiss it for that reason. Are you required to make this request at the outset of the case? No. If for some strategic reason you’d rather keep the defense in your back pocket to tell the jury about at trial, you can do that.

The issue came up recently in Ferguson Enterprises, Inc. v. F.H. Furr Plumbing, Heating and Air Conditioning, Inc., or as I like to refer to it, “Furr v. Ferguson.” Furr sued Ferguson in Prince William County on claims arising out of an alleged fraudulent-pricing scheme. Ferguson, a distributor of Trane-branded HVAC systems, had negotiated a pricing structure with Trane that allowed it to charge customers like Furr a discounted price and then receive a rebate or “claim back” from Trane. Furr entered into a contract with Ferguson back in 1995, but eventually came to believe that Ferguson was charging Furr a price above the discounted rate authorized by Trane. Furr sued in 2013 for fraud, unjust enrichment, breach of contract, and other claims.

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When you sue someone, you sometimes have a choice between filing in state court or federal court, and courts will generally defer to your preferred forum. In appropriate circumstances, however, a defendant can remove the case from state court to federal court. Under the current removal statute, 28 U.S.C. § 1441, removal is permitted by the defendant in any civil action brought in a state court of which the district courts of the United States have original jurisdiction. For those wishing to keep their cases in state court, care must be taken to ensure there are no grounds for federal-court jurisdiction. Some cases get removed to federal court before the plaintiff ever sees it coming.

The preemption doctrine can lead to such a result. Under this doctrine, a defendant may remove a cause of action that otherwise appears to lack federal question jurisdiction by asserting that federal law preempts the state law claim. This is because, under the Supremacy Clause of the Constitution, when state law and federal law conflict, federal law displaces (or preempts) state law.

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When the Virginia Supreme Court decided Assurance Data v. Malyevac a few years ago, most employment lawyers speculated that although Virginia law no longer permitted most non-compete cases to be disposed of summarily on demurrer, a procedural mechanism known as the “plea in bar” could still be used by defendants intent on challenging the enforceability of their noncompete agreements. Assurance Data held that “restraints on competition are neither enforceable nor unenforceable in a factual vacuum” and that evidence is ordinarily required to perform the analysis. Unlike demurrers, pleas in bar allow for the presentation of evidence, so it would seem that the plea in bar would be an appropriate way to dispute a noncompete. A new decision from the Circuit Court of Fairfax County agrees with this approach.

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When a Virginia court dismisses a case, the dismissal order may state that the dismissal of the case is either “with prejudice” or “without prejudice.” In this context, prejudice has nothing to do with racism or discrimination. Rather, it’s simply an indication of whether the case is permanently ended, with no possibility of finding its way back onto the court’s docket, or merely removed from the docket in such a way as to permit its refiling upon the satisfaction of certain conditions. Sometimes it will be up to the judge to decide whether to dismiss a case with or without prejudice; other times (particularly when the defect in the case cannot be fixed), the law will dictate the form of dismissal.

The Virginia Supreme Court explained the distinction in Primov v. Serco, Inc., decided just a few days ago. There, the court noted that a dismissal of a suit “without prejudice” means that the court is not deciding the controversy on its merits, and that the whole subject of litigation will remain as much open to another suit as if no suit had ever been brought. (See Newberry v. Ruffin, 102 Va. 73, 76 (1903)). In other words, dismissing a case without prejudice terminates the action but does not prohibit its refiling.

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Nobody likes to get sued. It can be an expensive and soul-draining proposition, even if you win. Under the so-called “American Rule,” litigants are responsible for paying their own legal fees, regardless of which party wins the case. Obviously, this system engenders some abuse, as crafty, litigious plaintiffs can file frivolous lawsuits knowing that–at the very least–they will cause the defendant to incur large sums of attorneys’ fees. As a defendant in American litigation, a victory at trial merely means you don’t have to pay the plaintiff any money. But you do you have to pay your own attorneys for their time and effort. So even a “win” is often viewed as a net loss in financial terms. One common way to turn the tables on plaintiffs is to file a counterclaim. Assuming the counterclaim itself isn’t completely groundless, it can put the parties on equal footing: if both parties have claims against the other, then both parties have something to lose beyond mere legal fees. Now, even the plaintiff can be liable for a money judgment.

If you file a counterclaim, however, you better mean it. The court may not allow you to withdraw it later if you decide your claims should have been brought as a separate action in a different jurisdiction. If the case has progressed to the point where trial is imminent, you may be forced to litigate the claim or lose it forever.

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Restrictive covenants in employment agreements (e.g., noncompete and nonsolicitation clauses) are enforceable in Virginia if they are (1) narrowly drawn to protect the employer’s legitimate business interests, (2) not unduly burdensome on the employee’s ability to earn a living, and (3) are not against public policy. There was once a time when litigation brought to enforce noncompete and nonsolicitation agreements would be routinely dismissed at the outset of a case based on a finding that one of these elements was lacking. For example, a noncompete provision restricting a former employee from taking a similar job with a nearby competitor for five years might have been quickly dismissed based on the judge’s quick determination that five years is simply too long.

This changed with the 2013 Virginia Supreme Court decision in Assurance Data, Inc. v. Malyevac. There, the court pointed out that every case is different, and held that an employer seeking to enforce a restrictive covenant must be given the opportunity to present evidence demonstrating reasonableness. Since this decision, some judges–like Fairfax County Circuit Court Judge John M. Tran–have opined that in appropriate cases, courts can still dismiss noncompete cases without an evidentiary hearing, such as when an employer fails to even proffer a legitimate business interest. Others hold that Assurance Data forecloses facial attacks on restrictive covenants. This appears to be the more common interpretation of the case.

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If you look up “deposition” on YouTube, you’ll likely find over 200,000 videos to choose from. Many include graphics and commentary that the uploader added after the deposition was taken, usually with the aim of mocking the witness being deposed. The purpose of the discovery process is to require witnesses and corporations in possession of information potentially relevant to a case to divulge information to the requesting party for the purpose of assisting in the preparation of a litigated dispute for trial. Depositions are a specific form of discovery designed to allow litigants to obtain sworn testimony from witnesses in advance of the trial date and to get that testimony in a video format suitable for presenting to a jury. With the soaring popularity of video-sharing social-media sites, the temptation can be great to humiliate your opponent in litigation by posting embarrassing video depositions (or other discovery responses) on Facebook or YouTube, either during the pendency of the litigation or after it has ended. Is this permissible in Virginia?

There are authorities coming out on both sides of this question. On the one hand, “pretrial depositions and interrogatories are not public components of a civil trial.” (See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)). Thus, while the public generally has a common law right of access to court orders and legal proceedings, information collected through discovery is not a matter of public record to which that right extends. In other words, regardless how entertaining it might be to watch a celebrity make a fool of himself at a deposition, it’s really nobody’s business outside of the confines of the court proceeding. On the other hand, dissemination of pretrial discovery materials by the receiving party is not automatically prohibited absent a protective order.

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