Weekend Update with EB – April 13, 2024

TRANSCRIPT

Hey there Premium Members, EB here for our weekly update. We got a couple of things to talk about, couple of things that have happened and then also what is coming down the pike for the Colucci case. As you know, on COJ this week we released an interview that Mandy and I did. Vinnie Politan, he is the host of Closing Arguments on Court TV, weeknight from 8-10. He’s just a great guy, former prosecutor and wanted to always get into television. Learned a lot about his background from New Jersey and that he started out in mainstream news before he got into Court TV and his insight into when you videotape trials and how people react and how judges react, I thought was really compelling. He talked about how any crime scene can be disassembled and you can make an argument that certain evidence was tainted. And that, you know, very rarely is somebody who’s a defense attorney just going to admit the facts from the government, even if they are compelling, even if they’re on video, there’s always a defense you can come up with. So I strongly encourage you to review the COJ episode that we released. Listen to it, let us know what you think. Certainly the feedback that we’ve gotten so far has been great. 

You know, we talked at length about that there’s no cameras in the federal court system like we have in the state system. We were able to see, when Alex pled guilty, we were able to see the murder trial that took place last February and March and you really feel like that you understand what is happening now. The problem in the federal court system is from 91 to 94 they did some pilot programs in the federal court system, and I don’t think the federal judges felt as comfortable in front of the camera. And so everything is pretty much dictated in the federal court system by the United States Supreme Court. The United States Supreme Court will record their oral arguments, but they won’t show them live. And until the Supreme Court reverses that decision, and opens up their own courtroom cameras, I don’t believe it’s going to happen in the lower courts. And I really do think that that’s not right. 

Look, like Mandy says, we pay for our court systems and our taxes. These people who are judges work for us, the people, and I think we have a right to access our court system and understand what is being done. You know, certainly the public would have benefited last week, when Judge Gergle sent Alex Murdaugh to the federal crimes that he pled guilty to, if there was cameras in the courtroom, rather than just news people or broadcasters taking notes, and then going out and giving their own spin or take on what took place. Instead of getting it filtered through somebody else, it would be great if we could see how the sausage is made, so to speak. So that’s what took place last week and that leaves us well, what’s left for Alex? Is there anything left that we’re going to know about in the future for him? The answer is yes. We obviously know there’s going to be appeals and we know that you know he’s appealing the double murder conviction, and most likely will try to appeal Judge Gergle’s enhanced sentence that he gave 40 years. But we still have the labor day shooting charges that are out there. We still have the charges involving cousin Eddie and what those implications are and so sooner or later, I think the state will make a decision on the labor day shooting charges. There’s also the civil case of Nautilus insurance company in federal court, trying to get their money back from Alex Murdaugh for the Satterfields where he stole $3.8 million of the $4.3 million. 

Then Vinnie talked about the Colucci case that is coming up in May and he gave his opinion that he doesn’t believe that there should have been a hung jury on that case. Obviously he was very complimentary of Andy Savage, Colucci’s defense attorney. But he, like a lot of us, doesn’t believe that a woman would try to fit their way in between a fence and a house only to get themselves entangled and hung on an industrial rubber hose. So that trial is coming up, it’s going to be covered by Luna Shark Productions, we’re all going to be there. Looking forward to it, I think it’s going to have a little bit of the Murdaugh mystique and twist, because it’s a very influential family. 

So regarding the Bowen Turner matter, we FOIAd, meaning Luna Shark FOIAd the prosecution and we were able to obtain the dashcam footage from Bowen Turner’s DUI, which I implore you to look at it. We’re the only ones I believe that are sharing it with the public at this time with an accompanying article by our esteemed researcher Beth Braden, and you will see pretty convincingly that Bowen Turner was driving under the influence of alcohol in violation of his probationary terms. The kid just doesn’t get it and it’s pretty serious. And, you know, certainly the bow and Turner matter is another matter that I think with sunlight that was shown on that case that now he’s not going to get that break that he was getting, it seemed like in the beginning, I know he has to do four or five months for the violation of his probation. So we will keep you updated on that. 

Moving on to the Law Library, we’re going to talk about two terms today. One is ESI and the second is rule 11. ESI, you’re saying okay, what’s that acronym stands for? It stands for electronically stored information. So when I started practicing law in 1988, there wasn’t computers. We had fax machines that had that roll paper that was like on film so that over time, if you left it out on your desk and the sunlight hit it, it would fade it and it would come out like a paper towel roll. And you’d have to cut it and refold it so you can get it in 8.5 by 11. There were no computers believe it or not, there was IBM’s electric typewriters that had a little bit of memory in the typewriter and you would put a pink carbon, a yellow carbon and a green carbon, and then he would have a white piece of paper and you would type. And if you made a mistake, you would have to use whiteout tape or a little bit of white out. And the computer had a little bit of memory to memorize the letter that you’re typing, but the typewriter wasn’t tied into somebody else’s typewriter or a computer so it was a lot harder to practice law in the 80s. Remember, there wasn’t even email, there wasn’t text messages. 

So when I started practicing law, if you had a dispute, you’d write a nasty letter, and then you have to mail it, or fax it. And then if you mailed it, because you didn’t have a fax number, it would take three or four days to get through the mail, they’d get it, and then they would type and write a letter back and it would take another three days. So dispute would take six days and during that process, the parties could talk and maybe find a resolution. Today, it’s rapid pace, because if I write a letter, I can email it or I can text it, and then that person would get it and they text back another nasty email and before you know it, we’re drafting a lawsuit that day. And so the ability to really resolve disputes and let tempers and emotions die down has been affected by the advent of technology. So in the 80s, you would just have paper documents. So if you were in litigation, you would send what’s known as document requests. And you would say, look, send me all of your tax returns, send me all the correspondence between Eric and Jim and send me all of your drafts and stuff like that and and they’d go to a file cabinet and you’d get the documents. Well today, we have everything on computer. So everything is stored on a computer, whether it’s documents, invoices, purchase orders, if it’s emails that are archived and replies. And so the first thing you do when you’re in litigation is you send out an ESI letter, which tells the opponent to put a litigation hold or a preservation on their entire computer network systems, on their phones, their PDAs, their laptops, their tablets. Because some computer systems have automatic archiving. Some computer systems have a delete where people will go in and delete but save their documents or try to double delete to get it off their system. And you really can’t, there’s always a footprint left. So the ESI letter tells somebody, look, we are going to be in litigation mode, I’m putting you on notice. So you have an affirmative obligation to send notice to all the people within your corporate organizations to preserve all documents, all documents, all text messages, all emails, anything that has a relationship to the matter in dispute. And there’s a federal rule on it, Rule 34 and federal procedures talks about it. And it really takes the services of somebody who understands networking and computers and how to put a litigation hold. You know, I’m fortunate that in our firm, we have somebody who is dedicated to our computer systems, and data entry. And that when documents come in, they’re bait stamped with numbers and dates, and then they’re entered into our system. But a big corporation, as you can imagine, if somebody like Wells Fargo, or  Oracle or somebody like Tesla is served with a lawsuit, they have to put a litigation hold on their entire computer system. And this ESI letter sets forth what you want that hold to be on and they have to be preserved and if documents are deleted, or if you can show that emails are being deleted, you can get sanctions against the party and ultimately, you can get a jury charge of spoliation of evidence, which means the judge would charge the jury to say, look, there were documents that should have been preserved and produced, but they were deleted and destroyed. And you the jury should take that as proof that what was contained in those documents was detrimental to the party who destroyed them, and was detrimental to their defenses or their claims in the case. And that you should take an adverse inference to that so that you should hold it against that party for destroying those documents. So an ESI letter is extremely important. We send them out immediately when we give somebody notice of a claim and we expect that they’re going to write us back and confirm that they’ve put that litigation hold on all the documents and in their systems so that nothing can be destroyed. 

The second legal term is, you may have heard, is called Rule 11. And that’s Rule 11 of the South Carolina Rules of Civil Procedure, our South Carolina Rules of Civil Procedure, almost to a tee mirror the Federal Rules of Civil Procedure. Most states, I’d say three quarters of them do it that way. Some states though, their state civil rules of procedure on how to file and deadlines and different things like that are different than the federal rules but not in South Carolina, we follow the federal rules. So federal rule of civil procedure has that Rule 11. And Rule 11 says that before you file a pleading, before you file a document, you must have made a good faith investigation into the factual accuracy of what you’re putting in that document and that you have a good faith basis for making those claims. Now, I do have the right to rely on my clients telling me what happened but I have to do some investigation. I just can’t take my clients word that that client, for instance, was beat up by their neighbor. I have to have some proof, I have to have a police report or in a report to an insurance company or a witness statement. You can’t just take as gospel. When somebody’s telling you yes, you have the right to put things in filings with the court and be immunized from being sued for defamation as a lawyer. But you owe a duty of candor to the court, a duty of truthfulness, you owe a duty of candor to the other side, to your adversaries. And so Rule 11 says that you have a good faith basis for bringing the claim or filing this document. And sometimes Rule 11 requires that you consult with the other side before you file something. And so for instance, we have in discovery you serve the other side with interrogatories and document requests. Interrogatories are questions, document requests are what they are asking for certain documents. And you have a time period to respond and that’s 30 days. Now you can get an extension, and we give them freely. We don’t usually demand that you respond in 30 days, the only difference is what’s known as request for admissions that’s under Rule 36. And those require somebody to admit or deny certain allegations, and then they have a 30 day time period, and you gotta hear those. But let’s say that, you know, I send discovery to the other side, asking for documents and interrogatory questions, and they don’t respond. And then I send a letter to them asking him, hey, you know what, you know, it’s, you know, May 15, I served you these on the end of January, you didn’t respond, you didn’t ask for an extension, you didn’t object. Look, I am going to file a motion to compel with the court in a week, if you don’t give me responses. That is essentially consulting with the other side. You have a duty to consult, send that kind of letter or pick up the phone and say, hey, Jerry, look, you know, I’ll give you a week but you got to respond this discovery. You can’t just file a motion to compel without consulting the other side, because the courts, they just don’t want to be inundated with all these different motions or disputes that should be able to be resolved if you could pick up the phone. So Rule 11 is a little bit of a governor or the bird on a lawyer’s shoulder to say, hey do I really have a good faith basis for doing this? Or am I doing it for spite or to prolong these proceedings and make them protracted or for vexatious reasons? So those are our two legal terms today. Now you know what ESI is, essentially asking somebody to preserve all information, photographs, everything and Rule 11 is, you know, making sure that that lawyer on the other side has a legitimate good faith belief for filing. And with that said, EB out.

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