Issues of Law
Photography by Michael Buck
THERE ARE SO
MANY LEGAL experts in West Michigan, in so
many fields — thus the accompanying
Best Lawyers list. Many of those fields are
unusual, some are new, and some are small
but on the rise. Here is a look at three
areas of the law and local experts in those
areas: Derek Witte talking about e-discovery;
Susan Im talking about immigration; and Ginny
Mikita talking about animal law
Courts can demand to see e-mail, voice mail
What you don’t know about electronically
stored information can hurt your business or
organization — a lot.
Local attorney Derek Witte knows all about that.
The issue has generated a new buzzword in law:
e-discovery. Discovery is the legal process in
which attorneys obtain evidence held by the other
side. “E-discovery” is the term for
handing over electronically stored information
(known as ESI).
Failing to produce evidence in a timely and thorough
manner can be risking disaster, as in the case
of the Morgan Stanley investment house. Witte,
an attorney with Miller Johnson who specializes
in e-discovery, was living in Chicago a couple
of years ago and was on a large team of lawyers
representing the Coleman company in Coleman v.
Coleman was suing its former financial advisor,
but the trial never got to the actual merits
of the case because in the discovery phase, Morgan
Stanley failed to disclose the existence of thousands
of e-mail back-up tapes. For that alone, Morgan
Stanley was fined a total of $1.5 billion in
compensatory and punitive damages, though the
verdict was overturned on appeal in March.
But the verdict in a similar case in Michigan
still stands. DaimlerChrysler sued Bill Davis
Racing in a federal court in Detroit and won
a judgement of $6.5 million in 2006. A jury found
that the North Carolina-based racing company
had passed confidential information to Toyota.
The racing company was penalized for having failed
to produce emails from one of their engineers,
sent on his private AOL account to a Toyota employee.
In December, the Federal Rules of Civil Procedure
were amended to include ESI. The new federal
court rules are causing businesses to examine
which electronic documents should be saved — and
which should be destroyed.
For example, “Bill” down in shipping
may have some e-mails the boss isn’t even
aware of — e-mails that might play a role
in a lawsuit that isn’t even on the horizon
E-mail “is usually where the juicy stuff
is,” quipped Witte, because e-mail is how
most people at work now communicate. It also
has greatly multiplied the sheer volume of communication.
Before, a company might have had only a couple
of letters and internal documents pertaining
to a specific matter, but today, that could be
hundreds of e-mails — plus voice mails
and instant messages, all of which are ESI.
Electronic communications are much more casual
and spontaneous than formal business letters.
Until fairly recently, people assumed no one
would ever see the content of their e-mails.
“We are creating more evidence” than
ever before, explained Witte.
Witte has been getting a steady stream of calls
from West Michigan companies that want to know
more about the new federal requirements. He has
a detailed presentation covering the major aspects
of e-discovery, including how to be prepared
and the costs involved. He said sometimes the
information tends to scare the audience.
“What happens is, I explain what the law
said. “Then the in-house counsel looks
over at their IT person and says, ‘Where’s
our e-mail?’ Sometimes it can escalate
Retrieving ESI when faced with a court order
can be very expensive. In an emergency, a business
or organization may have to hire consultants
and buy expensive software programs. In fact,
e-discovery is a whole new market within the
Witte comes down hard on instant messaging in
particular, because of its impromptu nature.
Many people can be quite reckless about what
they put in an instant message.
“A lot of people think once you close that
instant messaging program, it’s gone forever.
And that’s just not true. That whole conversation
stream can be recovered,” Witte said. “Our
advice is: If you have a corporate instant messaging
program, get rid of it. It just isn’t worth
Witte said that deciding what ESI to keep and
what to destroy is not an easy decision. First,
it depends on whether you are currently facing
a lawsuit or potential lawsuit. Lawsuits aside,
some things must routinely be kept for a specific
length of time, such as tax and employee records,
certain records of publicly traded companies,
Perhaps the best place to start is to remember
that where the law used to state “documents,” it
now reads “and electronically stored information.”
When Susan Im began her law career in the mid-1990s,
she was told there wasn’t enough work in
immigration law to keep a Grand Rapids lawyer
Today, immigration law is all Im does.
Immigration is now also a major political hot
button in the United States, with an estimate
of more than 12 million illegal immigrants, most
of them from Mexico.
“I think it is pretty clear that our current immigration system is broken,” said
Im. “The borders don’t work. At the same time, some professional
people have to wait years to get here. Our immigration laws are out of sync.
They don’t reflect the true employer needs of today.”
Im spoke about immigration law recently at Hope
College and to Grand Rapids Rotary. Two years
ago she was appointed by Gov. Jennifer Granholm’s Advisory Council
on Asian and Pacific American Affairs, and served as chair of the Council’s
Im’s parents, both of whom worked in the
medical profession, came to the United States
from South Korea in the 1960s. She was born in
Chicago. Then her
father, a psychiatrist, accepted a job at the state hospital in Traverse City,
so the family moved there, where Im graduated from high school. She did her
undergrad work in Asian Studies and political
science at the University of Michigan and
then earned a law degree at Wayne State University in 1994.
Im began her career at Smith Haughey Rice & Roegge,
where she worked in civil litigation, mainly
involving insurance defense cases.
“I am grateful to Smith Haughey for what I learned there, but I wanted
to do immigration
law,” she said. In late 1996, she left to start her own practice. This
spring she merged with attorneys Elizabeth Lykins and Tim Ryan to form Ryan
Lykins Im PLC.
Although Im does some family immigration work,
most of her work is in business immigration,
in which she is retained by employers trying
to obtain temporary
work visas for foreign nationals the companies want to bring here, or trying
to get permanent residency status — the coveted “green card” — for
an existing employee. Im’s clients are corporations and businesses ranging
from aerospace to food service, along with colleges and universities.
Most of the foreign nationals she represents are educated or skilled workers,
trying to enter from all over the world.
There are five employer-based categories for green card applicants, with stringent
rules for qualification in each category. The number of employer-based green
cards issued each year is limited to 140,000 for the entire country. There are
also specific restrictions on the number of applicants from China, India, Mexico
and the Philippines.
Noting that many top scientific researchers come from China and India, Im said
the green card applications from professionals in those countries is backlogged
and getting longer.
“An Indian-born physician who begins her
green card process today, on a work visa, will
wait at least five years,” said Im. “One
thing I hear all the time from employers is, ‘I’d
love to find a qualified U.S. worker for this
job, but I just can’t.’”
Work visas are on a time limit and sometimes expire before a green card can be
obtained. Some professionals are then forced to leave the country, while others
will change to a student visa status, which means limited or no employment.
“The bottom line is, we need to look at
reforming our laws,” Im said. “The
biggest obstacle to reform is politics — and emotions.”
A bill introduced last year, H.R. 4437, has
passed the House. Im called it “horrible” because
it does not address employer needs and does not address the huge undocumented
population in the U.S. The proposal sparked protest marches in Hispanic communities
across America last summer.
“And I don’t blame them,” Im
A Senate proposal, S. 2611, would create a guest
worker program and a path to citizenship for
some qualifying illegal immigrants already in
the U.S. Im said
it is “far from perfect, but leaps and bounds better” than the
Barking up the right tree
Michigan is a leader in “animal law,” and
that pleases animal law
expert Ginny Mikita.
“Michigan was the first state to have
an animal law section added to its state bar
association,” said Mikita, an attorney
She is also proud to point out that just four
years ago, the Michigan State University College
of Law started its Animal Legal & Historical
Web Center, where anyone can access more than
700 legal cases and 975 American laws pertaining
Michigan also recently updated its felony animal
cruelty laws to allow a judge to temporarily
or permanently revoke a convicted individual’s
right to animal ownership.
Mikita predicts that within a few years, there
will be new Michigan laws passed allowing people
to recover “non-economic” monetary damages for the
loss of a pet. She often represents pet owners suing veterinarians for malpractice,
and the law currently allows recovery of only the actual dollar value of the
pet, plus some expenses. “Non-economic” loss is “the loss you
cannot quantify — the emotional involvement” one had with a pet,
she explained. Tennessee has passed a law, she said, allowing up to $4,000
in non-economic damages.
Mikita has had a passion for protecting animals
since she was in 5th grade. She was walking to
school one day when she found a bag of mewing
kittens, left like
trash on the curb. She took them to school and gave them to the school nurse,
who then called Ginny’s mother to come get them.
Mikita was an Air Force “brat” whose parents’ roots were in
West Michigan. While earning an economics degree in Florida, she read “Animal
Liberation,” a book that impacted her profoundly. She decided to attend
law school to qualify to work as an animal lobbyist, and graduated from Notre
Dame Law School in 1991.
Early in her career, Mikita was an in-house attorney for PETA, People for the
Ethical Treatment of Animals, in Washington, D.C. She eventually realized she
did not agree with some of the methods used by PETA, and left the organization.
Later, Mikita went to work for Smith Haughey
Rice & Roegge in Grand Rapids.
In the mid-1990s, she represented the Ottawa Shores Humane Society, which almost
went bankrupt after having to care for 139 starving and neglected animals — including
horses and many goats — that had been seized on a Nunica farm. The humane
society was also sued by the animals’ owners. Mikita later played a key
role in the drafting of a new state law that requires people accused of abusing
or neglecting animals to cover the expense of housing and feeding the seized
animals, and speeds up the animal forfeiture process if the owners can’t
Mikita says it was that case that led to her
being named one of Michigan’s
Top Ten Lawyers by Michigan Lawyers Weekly in the late 1990s.
In 1999, Mikita left Smith Haughey to go into
private practice in Rockford, in partnership
with her husband, attorney Bob Kruse. Most of
her legal work now
is conventional law dealing with child neglect cases and guardianships. But
she is known nationally as an expert in animal
law, including “companion animal
trusts” and veterinarian malpractice. Last November she spoke at Lewis & Clark
Law School in Portland, Ore., one of the first American law schools with an
animal law program.
Mikita was also asked to speak about companion animal trusts at a recent meeting
of the Institute of Continuing Legal Education, sponsored jointly by the State
Bar of Michigan and several Michigan law schools. And she was hired a couple
of years ago by the Michigan Humane Society to lobby in Lansing against a state
proposal to allow dove hunting. The controversy came to a head in a state referendum
last November, in which voters nixed a dove hunting season.
People are really her clients, of course, though sometimes a critter is the focus
of all the effort, as in pet trusts. Pet trusts are part of estate planning when
owners want to be sure their pets will be properly cared for after the owner
Mikita said that one of her clients has a beagle
named Larry, “who’s
going to be doing pretty well in a few years.”
Actually, Larry is already doing quite well.
He wasn’t available for a
Grand Rapids Magazine photo because he was wintering in Florida. GR