BLOGS: Western District of Virginia Law Blog

Jason grew up in Lynchburg, Virginia, clerked for Judge Samuel G. Wilson in Roanoke, Virginia, and practices law in Charlottesville, Virginia.

Tuesday, February 23, 2016, 11:42 AM

New Website for Womble Carlyle's Charlottesville Office

Womble Carlyle's Charlottesville Office has a new website.  We're still trying to find the perfect photograph to represent Charlottesville's spirit.  Something that captures both Charlottesville's rich history and bright future; its pastoral landscapes and burgeoning economic development; its small town feel and world-class research and development.  The current picture is the view outside our offices on the Downtown Mall.

Womble Carlyle and Charlottesville are a good fit for many reasons.  One of which is our focus on the Impact Economy -- the concept of doing good while doing well.  This new market force is underpinned by public institutions and private companies, entrepreneurs and investors, who combine the desire to achieve financial success with social responsibility.  Womble Carlyle is the first law firm in the country to launch an integrated, full-service Impact Economy practice that covers virtually all Impact sectors, including housing, environment, education, economic development, healthcare and energy.

The concept of an Impact Economy is readily apparent in Charlottesville's innovation community.  The National Venture Capital Association recently ranked Charlottesville as the fastest-growing venture capital market in the United States.  Academic research at the University of Virginia is the driving force behind much of this growth.  Sean Carr, Executive Director of the Batten Institute for Entrepreneurship and Innovation at UVa explained that "this latest news about growth in funding opportunities in our area provides some early evidence that Charlottesville has the potential to be one of the nation's best environments for starting and developing high-impact and high-growth ventures."

By their very nature, many of these start-ups begin as a good idea to addresses a need or social problem.  That idea, often created within an academic environment, is then developed and spun off into a money making venture.  The academic or social goal that served as a genesis for the new company need not be abandoned.  To the contrary, profit and social responsibility can work together.  This is a perfect example of the Impact Economy at work.

Womble Carlyle's Impact Team strives to provide strategic and advisory services to our clients in addition to legal services.  We believe that impact-focused businesses can be most effective when they engage trusted advisors to help them creatively respond to the unique challenges presented by the business of addressing and solving social problems.  You can read more about Impact issues here and learn more about Womble Carlyle's Charlottesville office here.

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Friday, February 5, 2016, 1:12 PM

Malicious Prosecution Case to Continue Against Patrick Henry Community College Athletic Director

Historic Henry County Courthouse
An affair between a college coach and a basketball player, a disputed confrontation between parents and a college administrator, accusations of assault and kidnapping, fifteen days in jail, claims of false arrest and malicious prosecution, and a mystery video tape: this case sounds more like a soap opera than a federal lawsuit.

A new opinion from Judge Kiser involving salacious accusations against the Patrick Henry Community College women's basketball team and athletic director is anything but boring.  See Robinson v. Davis, Case No. 4:15-cv-00040 (Dec. 30, 2015).

The plaintiffs are the parents of a former female student and basketball player at Patrick Henry Community College.  During the 2012 season, the plaintiffs learned that the coach of the women's basketball team was having an affair with another one of the players.  As a result, they removed their daughter from the team and confronted the Athletic Director in a meeting at his office.  The complaint alleges that the AD became upset, belligerent and verbally aggressive towards the parents--yelling at them to get out of his office and threatening to call the police.  

The parents claim they did nothing to physically threaten the AD or basketball coach, but apparently the AD has a different version of the facts because he swore out a warrant against the father for felony abduction, kidnapping and assault, and against the mother for assault.  The parents were arrested after their return to their Virginia Beach home.  The father was held in jail for fifteen days before being released and the charges against him dropped by the prosecutor.  The mother, who was also incarcerated for a time, was found not guilty of the assault charge.

The parents then filed a malicious prosecution and false arrest lawsuit against the Athletic Director and the sheriff's deputy who agreed to file the charges despite, according to the parents, a video tape of the incident "showing no criminal actions."  The case was transferred from Virginia Beach to Henry County, where it was then removed to the Western District of Virginia after the parent's filed an amended complaint adding federal question claims under Section 1983.

The case then came before Judge Kiser on a motion to dismiss.  The Court denied the motion as to the malicious prosecution and false imprisonment claims because, taking the facts alleged in the complaint to be true, there was no probable cause for the arrests.  The Court could not infer, as defendants' requested, that there was more to the altercation than alleged in the complaint because all facts and inferences must be view in the light most favorable to plaintiff on a motion to dismiss.  

Similarly, the Court declined to consider the video of the incident -- which defendants claim shows that the parents became irate, blocked the AD in his office and had to be dragged away by their daughter.  Although the video was referenced in the complaint, the Court determined that its contents should not be considered on a motion to dismiss because the complaint itself did not rely on what was in the video.  (The video will however be considered on any summary judgment motion).

The Court, however, granted the motion to dismiss with respect to the Section 1983 claim against the Athletic Director because his actions were not "under color of state law."  Although he was a state employee, nothing suggested that his alleged conduct (trumping up charges against the parents) was made possible because he was a state employee.  The Court explained:

To put it another way, anyone can lie to the police  Because the [Athletic Director's] actions were no more than what any private citizen could do, there is not a sufficient nexus between [his] actions and the state to convert this private tort into a federal wrong.

The case will now proceed in federal court in Danville, unless somehow the 1983 claim against the sheriff's deputy is dismissed, in which case the case may be remanded back to state court.

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Wednesday, February 3, 2016, 12:57 PM

Charlottesville as a "Hotbed for Innovation": Fastest Growing Area in US for Venture Capital Funding

Where a court is located often determines the type of cases that it hears.  For example, the "Rocket Docket" of the Eastern District of Virginia hears a large number of patent and technology-related cases both because of the speed at which it dispenses justice and also the many technology companies in Northern Virginia--not to mention that the Patent and Trademark Office is a few blocks away from the Alexandria courthouse.

The Western District of Virginia, however, is not traditionally known for its patent docket or technology-related cases.  When I clerked for Judge Wilson in Roanoke, one of the biggest cases the court heard that year was a RICO conspiracy involving (alleged) moonshiners in Franklin County.  Growing up in nearby Lynchburg, I often heard Franklin County referred to as the "moonshine capital of world."  While the homemade distillation of spirits certainly involves some measure of technology, that RICO trial was certainly not a technology-based case.  At the time, it was not surprising that the court heard more moonshining cases than patent cases.

All of that may be about to change, however, given the recent growth of tech start-ups in the region.  This growth is largely fueled by the universities--the University of Virginia, Virginia Tech and James Madison University--located in Charlottesville, Blacksburg and Harrisonburg.

According to an article in today's Daily Progress, the Charlottesville area is the fastest growing area in the country for venture capital investment since 2010.  The largest investments were in technology companies, many of which got their start from academic research associated with UVa.  The article explains:

The Center for Innovative Technology also was involved with most of the companies receiving venture capital funding.  The center works to promote the technology industry around the state, and since 2004 it has invested seed money in numerous technology and life-science companies around the state, including local biotechnology and semiconductor companies.
As the market in Charlottesville has grown, [the center's investment director] said, word is spreading that it's a good place for tech startups -- it has a high concentration of talented people, a nice location and access to a major university...

The number of local companies receiving venture capital funding has increased 55 percent annually since 2010, and the amount of investment dollars pumped into the Charlottesville market has increased by $157 million.

This type of growth--fueled by the confluence of nearby universities, public-private partnerships, low taxes and livable communities--reminds me of the success of North Carolina's Research Triangle Park.  Womble Carlyle's early commitment to technology led us to open an office in RTP in the 1990s.  As a law firm, we have seen first hand how a technology driven economy can transform a region, including its courts and legal market.  Let's hope the same thing (without the traffic, of course) is happening here in Charlottesville.

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Tuesday, February 2, 2016, 4:13 PM

To What Extent Can You Use Errata Sheets To Correct Testimony Under Rule 30(e)?

How many times have litigators said "the witness will read and sign the transcript" at the end of a deposition? But to what extent can a witness actually correct their testimony on an errata sheet?

In a recent decision, Judge Urbanski addressed the scope of the provision in the Federal Rule of Civil Procedure allowing for the reading, correction and signing of a deposition transcript.

This contract dispute involved ant-infested wooden pallets manufactured by plaintiff and sold to defendant.  The case was before the court on plaintiff's summary judgment motion and objection to defendant's errata sheets purporting to change the testimony of defendant's witnesses (including its 30(b)(6) witness) which were provided to plaintiff only days before the deadline to file dispositive motions.

Rule 30(e) provides that after a deposition transcript is prepared, the deponent is allowed 30 days "to review the transcript ... [and] if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them."  This statement containing those changes is referred to as an "errata sheet."

As noted by Judge Urbanski, courts uniformly allow deponents to make minor form changes and corrections to transcription errors, but the Fourth Circuit has not addressed the outer scope of Rule 30(e) and thus there is a difference of opinion among lower courts regarding the ability to make more substantive changes to deposition testimony.

While the Court noted that there were two general lines of cases--the "traditional" and "modern" approach to Rule 30(e)--, the Court decided instead to adopt the "case-by-case approach" developed by the Third Circuit.

Under the traditional approach, deponents can made substantive--even contradictory--changes to prior testimony.  This permissive approach allows almost any change in an errata sheet, although both versions remain available for purposes of cross-examination.

In contrast, the modern approach interprets Rule 30(e) more narrowly and only allows for corrections for errors made by the court reporter.  One case, cited by the Court, explained that "[t]he Rule cannot be interpreted to allow one to alter what was said under oath.  If that were the case, one could merely answer the question with no thought at all, then return home and plan artful responses.... A deposition is not a take home examination." (quoting Trout v. First Energy Generation Corp., 339 F. App/x 560, 565 (6th Cir. 2009)).

After explaining these two approaches, Judge Urbanksi determined that the Court need not adopt either the permissive traditional approach or the narrow modern approach, because there was a third approach that best addresses the situation before the Court.

As explained by the Court, the Third Circuit's more flexible case-by-case approach "allows deponents to make necessary changes via Rule 30(e) without also 'generat[ing] from whole cloth a genuine issue of material fact (or eliminate[ing] the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction.'" (quoting EBC Inc. v. Clark Bldg. Sys. Inc., 618 F.3d 258, 268 (3d Cir. 2010)).

The case-by-case approach is similar to the "sham affidavit" doctrine, which prevents a party from avoiding summary judgment by submitting an affidavit that contradicts prior testimony.  Similarly, under the Third Circuit's flexible approach to Rule 30(e), "the court has discretion to ignore errata sheets that propose 'substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification.'"  Given that the Fourth Circuit has recognized the "sham affidavit" doctrine, Judge Urbanski reasoned that "the Third Circuit's case-by-case approach to Rule 30(e) best accounts for the facts presented here."

Applying this case-by-case approach, the Court determined that defendant's errata sheets should be ignored because they directly contradicted prior testimony, were submitted only days before the deadline for summary judgment motions, were supported by only perfunctory justifications and were focused on the very issues at stake in the summary judgment motion.  Thus, the Court held that "[a]bsent a more compelling justification for the abrupt change in testimony, the court will not allow [defendant] to use Rule 30(e) to inject new factual disputes into the summary judgment record that did not exist previously."

The Court went on to grant in part and deny in part the summary judgment motion, and reserved judgment on whether the errata sheet should be stricken for purposes of trial.  The Court concluded:

Further, as noted above, the court need not resolve the larger dispute about the proper scope of Rule 30(e) that has thus far divided courts in this circuit. In the situation presented here-where a party changes sworn testimony directly relevant to its potential liability mere days before the deadline for dispositive motions-the court is persuaded that Rule 30(e) does not allow parties to make substantive changes to deposition testimony in an effort to avoid an imminent motion for summary judgment.

Until the Fourth Circuit addresses the issue, Judge Urbanski's opinion will likely be cited in subsequent civil litigation to delineate the scope of errata sheets under Rule 30(e).  The Court's full opinion in Grottoes Pallet Company, Inc. v. Graham Packaging Plastic Products, Inc., 2016 WL 93869 (Jan. 7, 2016) is available here.

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