The decision in Romero has subsequently been followed by many Ninth Circuit district courts. In Oracle v. Google, Google attempted to seek remuneration for almost $3 million in e-discovery charges. Oracle Am., Inc. v. Google, Inc., 2012 WL 3822129 at *3 (N.D.Cal. Sept.4,2010). That court refused Google’s requested e-discovery costs in their entirety because the costs were for “organizing, searching, and analyzing [of] discovery documents” and such “intellectual effort” costs were non-taxable under Romero. Id.; see also Gabriel Techs. Corp. v. Qualcomm Inc., 2010 WL 3718848, at *10-11 (Sept.20, 2010)(denying motion for a bond to tax $1.5 million in e-discovery consultant fees because the work was intellectual effort and not “the physical preparation and duplication of documents”); Computer Cashe Coherency Corp. v. Intel Corp., 2009 WL 5114002, at *4 (N.D. Cal,Dec. 18, 2009)(awarding less than half of requested e-discovery costs because OCR and metadata extraction costs were not “physical preparation ad duplication of documents”).

Other circuits have also followed Romero and held that e-discovery costs are not routinely awarded to the prevailing party. The Third Circuit is arguably the only appellate court to directly address the propriety and scope of taxing e-discovery. In Race Tires Am., Inc. v. Hoosier Racing Tire Corp., the Third Circuit Court of Appeals was confronted with a bill for e-discovery charges related to the collection, processing, TIFF conversion, OCR, and production of approximately 600,000 pages of electronic documents. 674 F.3d 158, 159, 162 (3rd Cir.2012). That court held that only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD that were properly taxable under § 1920(4). Id. at 171. In addition, the court held that as § 1920(4) did not provide for the taxation of all steps necessary to make a copy in the pre-digital era, it could not be used to tax the cost of all the services that proceed the making of an electronic copy, such as “gathering, preserving, processing, searching, culling, and extracting ESL.” Id. at 169-70. Recently the Fourth Circuit has followed the holding in Race Tires. In Country Vitner of N.C., LLC v. E & J Gallo Winery, Inc., that appellate court rejected the prevailing parties claim that ESL processing charges were taxable, holding that taxable costs are limited to that of “converting electronic files to non-editable formats, and burning the files onto discs.” __ F.3d __, 2013 WL 1789729 (April 29, 2013); see also Fells v. Virginia Dep’t of Transp. 605 F.Supp.2d 740 (E.D.Pa.2011) (the court refused to tax any costs associated with the processing of electronic records because the techniques were technically not “photocopying or scanning.”); see also Johnson v. Allstate and County Vinter v. Gallo Winery, 2012 WL 4936598, at *6 (S.D. Ill, Oct. 16, 2012)(denying e-discovery as non-taxable that involved “gathering, preserving, processing, searching, culling and extracting [of] ESL”).

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If you are not going to be charged, you may receive a letter that the case is closed. You might also hear nothing. If you are going to be charged, you will not hear anything for a while. This lapse in time can be as short as a matter of weeks, and as long as months or even a year or more. You will then receive a statement of charges in the mail that details the factual allegations and proposed punishment. You may find that document shocking in what it has concluded and what it proposes in terms of a punishment. You will be required to either request an administrative hearing, or default and receive the punishment that the department has proposed. Always request a hearing. The department will usually negotiate a lesser punishment than what is contained in the statement of charges.

If you receive a letter from an investigator, consult with an attorney right away. Investigators are there to build cases. They are not your friends. The answers you provide will be used against you. It is not expensive to consult with an attorney at this stage and have them guide you through the process. The repercussions of losing your license or being disciplined can follow you through the rest of your life.

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Rule 36 of the Federal Rules of Civil Procedure (FRCP) governs requests for admissions. FRCP 36 allows a party to serve on “any other party a written request for the admission … of the truth of any matters within the [general scope of discovery] relating to facts, the application of law to fact, or opinions about either.” FRCP 36(a). The purpose of the rule is “to expedite the trial and to relieve the parties of the cost of proving facts that will not be disputed at trial.” Perez v. Miami-Dade County, 297 F.3d 1255, 1264 (11th Cir.2002)(citing with approval 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2252 (2d ed. 1994)). The responding party has 30 days after service to respond to the request for admission, in writing “specifically deny[ing] the matter” or “set[ting] forth in detail the reasons why [it] cannot truthfully admit or deny the matter” or by objecting to the request. FRCP 36(a). If a party fails to respond within thirty days, then “[t]he matter is admitted.” Id.

Once the matter is admitted, Rule 36(b) provides that it is “conclusively established unless the court on motion permits withdrawal or amendment of the admission.” FRCP 36(b). Rule 36(b) provides, in pertinent part:
[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.
Id. (emphasis added); see also Conlon v. United States of America, 474 F.3d 616, 621, 623 (9th Cir. 2007) (withdrawal of admissions is permissive, not mandatory and must meet the two part test).

There must be a compelling reason why the answers are tardy. The Second Circuit Court of Appeals decision in Moosman v. Joseph p. Blitz, Inc. holds that it was “well settled that a failure to respond to a request to admit will permit the District Court to enter a summary judgment if the facts as admitted are dispositive.” Id. at 688. That court went on to hold that a District Court was not “required to do so.” Under compelling circumstances the District Court may allow untimely replies to avoid the admission.” 358 F.2d 686, 688 (2nd Cir. 1966). (Emphasis added); see also Conlon, 474 F.3d at 625 (good cause must be shown for dilatory conduct, particularly when the moving party had “fair warning of the consequences of his noncompliance.”).

There is also a two part test. Rule 36 permits the district court to exercise its discretion to grant relief from an admission made under Rule 36(a) only when (1) “the presentation of the merits of the action will be subserved,” and (2) “the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.” FRCP 36(b); Conlon, 474 F.3d at 622 (Bold emphasis added)(citing with approval Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir.1995)); see also Perez, 297 F.3d at 1264. Both factors must be shown. Hadley, 45 F.3d at 1348 “Two requirements, therefore, must be met before an admission may be withdrawn: (1) presentation of the merits of the action must be subserved, and (2) the party who obtained the admission must not be prejudiced by the withdrawal.” Id. (Bold emphasis added). “The first half of the test in Rule 36(b) is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Conlon, 474 F.3d at 622 (citing with approval Hadley, 45 F.3d at 1348). The second element relates to prejudice. The 11th Circuit held that the prejudice contemplated by the rule “relates to the difficulty a party may face in proving its case, e.g.,…because of the sudden need to obtain evidence with respect to the questions previously left answered by the admissions.” Perez, 297 F.3d at 1266 (citing with approval Hadley, 45 F.3d at 1348); see also Conlon, 474 F.3d at 624.

In conclusion, requests for admission have become a weapon in your attorneys’ arsenal. They need to use it, and know how to use it, in administrative hearings. Your license, and your livelihood, may depend on it.

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Some companies are harder to deal with than others. Credit unions will frequently refuse to negotiate on debt. Their belief is that they have no right to negotiate away their member’s money. However, in refusing to negotiate a settlement, they often end up with nothing in return for the investment. Some small banks take an even harder line. Columbia Bank will sue and seek to garnish at the first sign that they won’t get full value back. American Express (Amex) is another company with whom it is hard to strike a deal. Amex typically won’t settle for less than fifty percent of the debt. On the other hand, most major credit card companies will negotiate substantial savings. Most collection agencies will as well.

You also have to have a lump sum payment in order to achieve significant results. That can be tough, considering that, most likely, the reason why you are unable to pay your credit card debt is because you don’t have that sort of money in the first place.

The last thing to remember is that you, the consumer, can negotiate on your own. You don’t need a professional to do this. If you do hire a professional, you should not have to pay a lot to settle your debt. It simply isn’t that complicated. There is a certain knowledge that a professional brings to the table, but the benefit of that knowledge is not substantial. Further, whatever you do, don’t agree to debt settlement on a contingency basis. That is the greatest rip off of all. You will substantially overpay for the service you get.

If you are approached by someone offering you a deal too good to be true, it likely is. Remember, if you can haggle to buy a car, you can negotiate with Chase or Citi bank to settle your debt. If you need a little assistance, pay for that, but don’t overpay. You can also call the Rosenberg Law Group, PLLC for a free consultation.

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The case was initially dismissed in King County Superior Court as the binding authority currently states that the Washington Law Against Discrimination (WLAD) doesn’t require employers to accommodate their employees religious beliefs. A court of appeals had decided that there was no protection for employees’ religious beliefs under the WLAD. The Washington State Supreme Court has decided to hear argument on this matter, likely in October of this year. There is still hope that Washington law will protect employee’s religious beliefs.

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The case law unequivocally states that there must be a nexus between the offense and the profession for a conviction to represent unprofessional conduct. In one case, a doctor was convicted of harassing witnesses in a malpractice case against him. The courts found that conduct did not represent unprofessional conduct as it did not relate to his practice as a doctor. In another case a real estate agent recommended a contractor to her client. She did not tell the client that she was romantically involved with the contractor, who subsequently did a bad job. The courts found that to constitute unprofessional conduct. The precedents are thus clear: there must be a direct relationship between the conviction and the practice of the profession. It cannot be simply that the licensee did something unseemly in the community. The RED may disagree, but it does not have the law on its side. It is getting away with it because not many real estate agents take them to court to challenge it.

If you have been charged with unprofessional conduct by your licensing body, you should obtain the advice of an attorney. There may be no basis for the charges.

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The truth is very different. A licensee does have to cooperate in an investigation of a complaint against them. However, that cooperation is generally limited by statute to responding to written questions and producing documents. You do not have to submit to an in-person interview. That is not a right that the law gives a licensing body. Attorneys at the Rosenberg Law Group, PLLC have found that offering to participate in an interview on condition that it be recorded results in a refusal by the investigator. One may well ask “why.” A tape recording or transcriptionist guarantees an accurate record. It is our experience that the record produced by the investigator without those safeguards lacks accuracy, to the disadvantage of our clients. In good conscience we cannot agree to having our clients exposed to that risk.

When a licensee refuses to submit to an oral interview without safeguards the investigator will ominously threaten that they will pass that information on to the Board that will consider whether charges will be filed. In other words, submit to their authority or else. By putting yourself in their hands, you are relying on the licensing body’s sense of justice and fair play. Of course, that is the same body that is requiring you sacrifice your rights. We recommend you contact an attorney experienced in professional licensure defense and not talk to the department.

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The Department of Financial Institutions still wanted its pound of flesh from the other technical workers. Two of the other Respondents were shown to have taken “help” calls from company representatives in Washington. While those Respondents may not have understood the implications of answering that phone, and had nothing to do with the business model, by answering the phone they were inextricably tied to the case. The company had gone out of business. The principals who did know about the company’s operations in Washington had disappeared. So, DFI decided it would stick all the fines and the restitution upon the two remaining Respondents irrespective of their role in the matter. And when the two Respondents stated that they could not pay what was being asked and requested terms, the DFI cut off all discussions and insisted on a hearing. Those two Respondents cannot even afford an attorney at this point.

This writer’s best guess is that the DFI has chosen to make the remaining two Respondents examples, even though their role was marginal at best, and they have no ability to pay whatever fines might be imposed. The lesson for the community at large, however, is that you will pay a price if you engage in unlicensed activity. Those two respondents did not direct the company to modify loans in Washington state. They did not modify loans in Washington state. They simply provided technical support to their company and assumed the company had the right to engage in those activities. DFI is requiring a due diligence that most employees would not consider their responsibility to do. What is lesson, then? It is that DFI can be bitter, and when it cannot get the responsible parties, it will stick it to anyone left holding the bag no matter what their culpability is.

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The Department of Financial Institutions has done it again, however. This time the DFI is asserting that it can regulate the activities of attorneys engaged in home loan modifications. It is asserting that the attorneys were engaged in the unauthorized practice of law. Accordingly, it asserts, it may regulate the attorneys as they are acting outside the jurisdiction of the Supreme Court.

The Supreme Court has ultimate jurisdiction over the activities of attorneys. That means that it is not up to the Department of Financial Affairs to determine whether or not the attorneys engaged in the unauthorized practice of law. That is a charge against the attorneys’ licenses, and must be brought by the Bar Association and ultimately heard by the Supreme Court. This attempt to extend the jurisdiction of the DFI is either a display of incompetence by their attorneys or a power grab by a government department that accepts no limitations to its authority. In either case, it is a serious misuse of governmental authority and a monumental waste of public resources.

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However, the facts do not support the decision. The first and obvious problem with the judge’s decision is that the practitioner had voluntarily declined to renew his license the year before. In other words, the Judge was suspending a license that did not exist. The Attorney General’s Office argued that the practitioner’s license should be “revoked” to prevent him from renewing his license. However, that argument fails to appreciate that the hearing to summarily suspend the license was not a license renewal hearing. It was a hearing to determine if a licensed professional represented an immediate threat to the community. And he was not licensed!

The second problem is that the State failed to show that the practitioner was an immediate threat to the community, let alone the sole victim in the case. Arguably, the practitioner was not even a threat to her, as he had not made any attempt to contact her in over nine months by the time of the hearing. Last, the law requires that the suspension be narrowly tailored to the threat posed. The only evidence before the court was that the practitioner had allegedly had sex with an adult female. Accordingly, his license to practice, (again, assuming he actually had one), should have been suspended only with regard to providing services to adult women.

The senior judge would have nothing of it and suspended the non-existent license. This case is currently under appeal. It does, however, show the importance of having competent representation at all levels of the disciplinary process. In this case, the practitioner decided to represent himself as it seemed like such a simple case. He found out the hard way that even simple matters require the assistance of an attorney. While no results can be guaranteed, the assistance of an experienced professional, such as the attorneys at the Rosenberg Law Group, PLLC, will increase the likelihood that positive results will occur and that the professional will be able to keep his or her license.

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