The BLT: The Blog of Legal Times

D.C. Circuit Revives Suit over DOJ Hiring Misconduct

A federal appeals court today revived a privacy suit rooted in a "dark chapter" at the U.S. Justice Department in which top officials assessed politics and ideology to screen applicants vying for entry-level slots in the prestigious Honors Program.

In the suit in Washington's federal trial court, several applicants to the program alleged they were not selected for interviews in 2006 based on their political affiliation. An internal DOJ report in 2008 concluded that top officials improperly considered First Amendment-protected speech to eliminate candidates. The lawsuit, filed in 2008, relied on the publication of the internal investigation.

Those senior officials, the U.S. Court of Appeals for the D.C. Circuit said today, had an obligation to preserve Internet records about each candidate "given that Department investigation and future litigation were reasonably foreseeable." The records have since been destroyed.

Writing for the court, Judge Judith Rogers said a jury should be allowed to hear a claim of spoliation—that is, that two remaining plaintiffs, Matthew Faiella and Daniel Herber, were "harmed by creation and use of the destroyed records." The screening committee at the time comprised Michael Elston, chief of staff to the deputy attorney general, and Esther McDonald, counsel to the associate attorney general. The D.C. Circuit opinion is here.

Budget Cuts Start to Hurt Courts

The effects of this month's steep federal budget cuts are becoming clearer in court districts across the country, with judges, clerks and legal agencies from California to New York announcing courthouse closings and furloughs.

In Colorado, U.S. Chief District Judge Marcia Krieger ordered an end to hearings and trials in criminal cases on every Friday for five months, from April 26 through September. The federal public defenders, prosecutors and marshals face furloughs, Krieger wrote, and they are "integral to proper adjudication of criminal matters."

As in Colorado, other courts are targeting Fridays for closures because the supporting agencies and their attorneys will take furloughs. The clerk of court in the Central District of California announced it will severely curtail services at its three courthouses on seven Fridays from April through, accepting only mandatory and emergency filings.

D.C. Legal Services Groups Awarded $3.17 Million in Grants

More than a dozen civil legal services organizations in the District of Columbia will receive grants totaling $3.17 million, the D.C. Bar Foundation announced yesterday. The grants come as a number of local organizations cope with the one-two punch of shrinking revenues and growing need.

The annual Access to Justice grants are funded by the D.C. Council and distributed by the D.C. Bar Foundation. This year's recipients include three new programs that are aimed at helping low-wage workers, immigrant communities and litigants making first contact with a lawyer.

"We continue to be very, very impressed with the creativity and effectiveness of all of the programs that have been funded since the beginning of the Access to Justice initiative," said Katia Garrett, executive director of the foundation. The programs are located "deep within communities of need and also at what I call the point of crisis, with our court-based legal services grants," she said.

Williams & Connolly Sues Bank Regulator Over Foreclosure Review Information

In a bid for more information about how consultants landed lucrative contracts to review bank foreclosures, Williams & Connolly filed a Freedom of Information Act suit against the Office of the Comptroller of the Currency on behalf of an unnamed client.

The suit, brought by partner David Aufhauser in U.S. District Court for the District of Columbia, seeks documents that detail the OCC’s criteria for hiring "independent" consultants to review bank foreclosures.

The OCC and the Federal Reserve in 2011 directed mortgage servicers including Bank of America, Citibank, Wells Fargo and Goldman Sachs to hire independent consultants to embark on a case-by-case review of hundreds of thousands of foreclosures. The goal: to determine whether borrowers were afforded all of the protections they were entitled to under the law and to provide compensation to homeowners harmed by bank errors.

The Morning Wrap

The dealmakers: The American Lawyer spotlights this year's Dealmakers of the Year. "In a shaky recovery, corporate lawyers played an even more crucial role than they did in boom times," the report says.

Off-limits: An appeals court in Georgia has upheld an order barring a divorcing couple from using social media to communicate. The Daily Report has the story here. "Facebook is the new megaphone," said Randall Kessler, former chairman of American Bar Association's family law section. "It sounds like the judges are catching up with society." In other Facebook news, this piece in The New Jersey Law Journal: Party's Deletion of Facebook Page Found To Be Spoliation of Evidence.

Billy clubs excluded: "The U.S. Supreme Court may have guaranteed the right to possess a gun in the home, but it's still illegal to carry a baseball bat modified into a billy club in the backseat of one's car, the First District Court of Appeal ruled Thursday," The Recorder reports.

First, procedure: The Wall Street Journal reports on the Supreme Court's same-sex marriage arguments: "Justices discussed scenarios in which California's Proposition 8 and the federal Defense of Marriage Act might fall not because the court found them unconstitutional in substance, but because the unusual journey of the cases left the court with no legitimate dispute to resolve."

In Public Records Suit, No Extra Time for the FBI

A federal judge today refused to allow the U.S. Justice Department to put on hold, for more than a year, a suit that seeks information about the FBI's use of technology to collect mobile phone data.

U.S. District Judge Colleen Kollar-Kotelly said the government failed to convince her that "exceptional circumstances" exist to temporarily stop the litigation. The Electronic Privacy Information Center in Washington sued the FBI in April 2012 over access to documents about the bureau's use of "StingRay" technology.

"The large volume of requests that the FBI must process, as well as the size and complexity of those requests and the limited resources available to process them, present exceptional circumstances," Kimberly Herb, a Justice Department lawyer, argued in court papers.

Kollar-Kotelly didn't buy the argument. The bottom line, the judge said, is that the FBI didn't show that the bureau is "deluged" with so many public records request to justify a delay in the court action. Click here for the opinion.

Law Firm Leaders Q&A: Sanford Heisler's David Sanford

It's been a little more than nine years since David Sanford and Jeremy Heisler founded their class-action litigation boutique Sanford Heisler. Since then the firm has grown from three partners to well over 30 attorneys in New York, Washington and San Francisco.

For Sanford, chairman and founding partner, the road toward owning his own firm has been a progressive one. He started out as an associate at what was then Jones, Day, Reavis & Pogue. He left there in 1997 to join David Boies' start-up Boies & Schiller. A year later, Sanford helped start the Washington office of Gordon, Silberman, Wiggins & Childs, later renamed Wiggins, Childs, Quinn & Pantazis. In January 2004, Sanford made the dream of running his own firm a reality.

Among the firm's most noteworthy matters is the class-action discrimination case Velez v. Novartis. The firm won a $253 million jury verdict on behalf of more than 7,000 female employees of the company, the largest employment verdict to date. The case was ultimately settled for $175 million.

Legal Times sat down with Sanford in his office, which overlooks Connecticut Avenue N.W., to talk about the firm's business, the Velez v. Novartis case and civil rights.

Public-Duty Doctrine Faces Challenge in D.C. Appeals Court

After Phyllis Woods starting vomiting, losing her balance, and slurring her speech one evening in December 2009, her friend called 911. After examining Woods, ambulance personnel didn’t take her to a hospital, telling her she was ill because she had recently quit smoking cigarettes. Woods felt sick again the next morning, though. After she went to a hospital, she learned she had suffered a stroke.

Woods sued the District of Columbia and lost on a legal theory known as the "public-duty doctrine," which gives the city immunity in most cases to negligence claims like the one Woods brought. Today, the District of Columbia Court of Appeals upheld the dismissal. Judge Kathryn Oberly wrote in a concurring opinion, however, that she hoped the full court will rehear the case and weigh whether to get rid of – or at least modify – that doctrine. Woods' attorney confirmed that they do plan to ask for a rehearing.

"With the holding the majority reaches today, it is clear that the pendulum has swung too far in favor of the District, leaving its citizens at its mercy to provide competent emergency services, without redress when those services are the proximate cause of a tragic result," Oberly wrote.

Manatt Adds Senior Government Affairs Adviser

Updated on 3/29/13

Brown Rudnick has lost one of its Washington lobbyists to Manatt, Phelps & Phillips, Manatt announced Wednesday.

Anne Saunders Fabry joined Manatt as a senior government affairs adviser in the firm's federal government affairs and public policy practice group. Fabry, who will focus on lobbying the U.S. Senate, specializes in advising local governments and nonprofit organizations, as well as technology, energy, financial services, transportation, defense and education companies. Her arrival follows the addition this year of former Aegis LLC president and chief executive officer Kristi Rogers as a managing director in the firm's federal government affairs and public policy practice group.

Fabry said she and Manatt federal government affairs and public policy practice group chairman James Bonham previously worked together at Brown Rudnick, prompting her decision to join the firm.

"That was exciting to me," she said.

The Morning Wrap

Gay Marriage: The Supreme Court wrapped up two days of arguments related to gay marriage on Wednesday. Our own Tony Mauro and Marcia Coyle are once again leading coverage of the day's arguments. Read more here.

Euro: Banks in Cyprus reopened today after having been closed for almost two weeks. The New York Times reports that despite being open, there are strict limits to prevent a run  on cash.

Cyber Attack: What many consider the biggest cyber attack in history limited access to sites yesterday. NPR reports that the attack rose from a dispute between anti-spam advocates and a Dutch hosting site.

Loughner: New documents released by the Pima County Sheriff show new details in the case against Jared Lee Loughner. Reuters reports that 2,700 pages of documents including witness transcripts and police reports have been made public.