Bernstein Shur Monthly – August 2018


Bernstein Shur Monthly – August 2018

Six Bernstein Shur Attorneys Earn Best Lawyers® 2019 “Lawyer of the Year” Distinction

Portland and Augusta, ME and Manchester, NH (August 15, 2018) – Bernstein Shur, a leading New England based law firm, announced 49 of our attorneys have been named to Best Lawyers in America 2019. In addition, six attorneys were also named a Best Lawyers “Lawyer of the Year,” an honor exclusive to their legal specialty and geographic location.

The six attorneys recognized for “Lawyer of the Year” are:

Michael R. Bosse, Eminent Domain/Condemnation Law
John L. Carpenter, Securities / Capital Markets Law
Michael A. Hodgins, Administrative / Regulatory Law
Kenneth W. Lehman, Health Care Law
Arnold C. Macdonald, Construction Law
Ronald W. Schneider Jr., Administrative / Regulatory Law

Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading lawyers are eligible to vote (from around the world), and they receive almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For last year’s 2018 edition of The Best Lawyers in America©, 7.4 million votes were analyzed, which resulted in more than 58,000 leading lawyers being included in the new edition. Bernstein Shur attorneys consistently achieve Best Lawyers rankings every year, a tradition set 35 years ago by firm co-founder Leonard M. Nelson and attorney Gordon F. Grimes, both of whom have maintained a Best Lawyers ranking each year since its inception.

To read the full list of all 49 attorneys selected, click here.

Shareholder, Joan Fortin, profiled in MEbiz Women to Watch 2018

We are excited to announce that Joan Fortin, Shareholder, Board Member and Director of Attorney Recruiting at Bernstein Shur, has been selected as one of MEbiz’s 2018 Women to Watch! The four women chosen for this year’s honors were announced with detailed profiles featured in the August 6th edition of MEbiz.

Click here to read the article by senior reporter Renee Cordes and her interview with Joan!

BSSN Sponsors ME Cancer Foundation’s 2018 Tri for a Cure

On Sunday, July 22nd, the ME Cancer Foundation held the 11th ME Tri for a Cure.  The all-women mini triathlon took place in South Portland, with over a thousand women participating in the event.  As many people know, all of the money raised in the Tri for a Cure stays in ME and is used for research and fighting against cancer.

Bernstein Shur is proud to have been one of the sponsors for this year’s triathlon, the first time a law firm has ever been a sponsor of the event. In addition, Litigation co-chair Mike Bosse was the lead kayak volunteer, and watched his wife participate in the event for the 4th straight year. Congratulations to everyone who participated in the event.

Click here to watch Mike Bosse’s interview with WMTW-8 on the morning of the race!

Bernstein Shur Business & Commercial Litigation Update

Massachusetts has launched an investigation of Juul, the e-cigarette maker, concerning alleged sales to minors.

By: Daniel Murphy

The investigation was commenced by Massachusetts Attorney General Maura Healey, who has placed Juul and two online sellers on notice they are required to verify the age of purchasers of e-cigarette products. Juul, which is based in California, has come under fire for allegedly marketing nicotine delivery products that are favored by minors. The devices resemble USB thumb drives and deliver vaporized nicotine fluid in a wide range of flavors.  The U.S. Surgeon General has reported e-cigarette use among high school students has increased by 900 percent over a four-year period through 2015. Based on this data, the U.S. Food and Drug Administration has commenced enforcement actions against e-cigarette sellers. Massachusetts has faulted Juul for failing to prevent minors from purchasing their e-cigarettes, including a failure to properly verify the age of purchasers.

Read more about this development here.

Click here to read more stories like this in the latest edition of the Business & Commercial Litigation Newsletter.

Two Recent Cases Highlight Increased Focus by Courts on Privacy Interests when Considering Proportionality under Rule 26(b)(1)

By: Lauren Pritchard*

Federal Rule of Civil Procedure 26(b)(1) affords litigants access to non-privileged information that is relevant to a party’s claim or defense and proportional to the needs of the case. Although courts retain broad discretion in setting the scope of discovery, decisions typically focus on the expense and burden from responding to discovery requests compared to the value and needs of the case. In the digital age, however, where privacy interests are increasingly infringed upon through the mass creation of personal and private electronic information, courts are increasingly including privacy interests in their proportionality balancing. Two recent decisions highlight this development.

The Cases 

In a May 2018 decision, the court in Delgado v. Tarabochia, No. C17-1822RSL, 2018 WL 2088207 (W.D. Wash. 2018), considered the defendants’ request for the plaintiff’s phone and bank records. The phone records request included all account information, call and text message logs, and roaming data. The bank records request sought detailed summaries of debit and credit card transactions. The court weighed the plaintiff’s privacy interests (rather than just burden) against the defendant’s need to access relevant information in the case. The court ultimately limited the scope of discovery only to pre-incident phone records by finding that producing post-incident phone and bank records would unduly intrude on the plaintiff’s strong privacy interests, particularly when those records had limited probative value in the case.

Similarly, in Biggio v. H20 Hair Inc., No. 15-6034, 2016 WL 7116025 (E.D. La. 2016), the court considered the privacy interests in employment histories of certain of defendants’ employees who were not parties to the lawsuit, against the plaintiff’s interest in pursuing his employment claim. The court ultimately favored protecting the privacy interests of the non-parties and prohibited deposition questioning on their employment histories.


Courts retain broad discretion in their proportionality analysis to consider a wide variety of factors, and the need to consider privacy interests will only increase in modern litigation. Attorneys and parties should consider the role of privacy interests and the potentially intrusive nature of discovery requests as part of their strategy when arguing for or against proportionality.

* Lauren Pritchard is a summer associate at Bernstein Shur and a current student at the University of New Hampshire School of Law.

Click here to read the full E-Discovery Newsletter.