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Florida, Issue 3 - Valentine's Day!







Steve Jobs said that “the only way to do great work is to love what you do.” We know what you’re thinking: what kind of sick bastard loves commercial litigation, and in Miami no less? To be sure, there are some challenges (you know who you are). Sometimes opposing counsel can be . . . special. Sometimes the judge can be . . . ummm . . . stubborn. And sometimes even our cherished clients can be, just PERFECT IN EVERY WAY WHY DO YOU ALWAYS HAVE TO BE SO PERFECT. But as those irritating optimists in our lives might say “when life gives you (liti)gators, make Gatorade.”

We have brewed up some sweet, sweet Gatorade nectar at MM&H. Because we find that loving our jobs is kinda the secret to doing great work. And the better our work is, the more pride we take in it. And then we love it even more. So how do you learn to love commercial litigation? Let’s start with the obvious: a dart board. Surround yourself with people that you actually want to work with. Take the right cases. Keep good snacks around all the time. But the number one lifehack we’ve seen is that no matter the case, no matter how boring the legal issues may be, or how prickly the personalities, you own that case. You tie that case to your ankle and lug it around like a badge of honor. You take both arms and both legs and dive into that steaming pile of ill-placed Latin like your life depended on it. You in flagrante delicto the prima facie for per se of that case. Because once you do that, winning becomes so much sweeter. You learn more. You win more. Your clients love you more. And you, in turn, love your work more. So on this Valentine’s Day, don’t forget to say I love you to your job. And also to your wife (hi sweetheart, you are so much more important to me than my job, I love you so much).




More Talents Discovered in our Family Album

Lawsome Talent

Disproportionately, lawyers are community activists, and we are no exception here at MM&H. Don - Don continues to carry the (rainbow) flag, recently being elected as a new member of the Board of Directors for the National LGBTQ Task Force during their Creating Change Conference in Dallas, Texas. Maia - Who says lawyers can’t be environmentalists? Maia is President of the Miami-Dade chapter of the Jewish National Fund, and recently spent a few hours planting trees in celebration of Tu BiShvat, a Jewish holiday celebrating environmentalism and nature. Josh - Those who know Josh best rarely think of him and “moderation” in the same breath. But they haven’t seen him moderate a panel, which he did a few weeks ago. The panel was called “Adapting to Real Estate’s Tides of Change: Staying Savvy in Capital Markets & Lending” with co-host and panelist J.C. de Ona of Centennial Bank, along with Todd Rosenberg of Pebb Capital, Alex Ruiz of Prestige Companies and Marc Suarez of Hunt Real Estate Capital. Yaniv - Other than once being a spinning instructor (naturally), Yaniv also once taught the LSAT to aspiring lawyers. Finally putting his powers toward good rather than evil, Yaniv recently volunteered with Florida Southern College’s Justice Teaching Center for Civic Learning to teach students about the LSAT during their LSAT Practicum.

And, in case you are wondering, yes we are always looking for like-minded (and maybe unlike-minded) individuals to join our team.





  • Welcome: LAW LOVE Realigned
  • Lawsome Talent: Discovered
  • Florida and the rest of the world: MM&H in the news
  • No Love for Daubert




  • 'Gator Speak (Litigator to Litigator): A Valentine of Sorts for Foreign Litigants in Recent Court Decisions Finding Extraterritorial Application...
  • Subscription and Social Media





By Etan Mark, Daily Business Review | Read



By Dees Stribling, Bisnow National  Read




No Love for Daubert

By George Breur

We know. Breakups are hard. Last year, state courts in Florida dumped Frye and set its eyes on the Daubert expert witness qualification standard instead. As construction litigation attorneys, Daubert gets no love from us.

Under the former Frye standard, the test for admissibility of expert testimony was whether or not the opinion or method was “generally accepted” by experts in the same field. Now, under Daubert, in deciding whether to admit expert testimony, courts are also required to consider whether the theory has been tested; subjected to peer review; its potential known rate of error; and the standards controlling the technique.

Strict and more stringent - Daubert just isn’t our type. After all, how is a construction expert supposed to establish the known rate of error for his or her expert opinions? Or prove the opinions are scientifically reliable and capable of testing?

We recently overcame this exact challenge under the newly applied Daubert standard in a multi-million-dollar construction defect case here in South Florida. In cases involving non-scientific issues, like our beloved construction cases, reliability of a construction expert’s testimony may focus on personal knowledge and experience. In this instance, when an expert is relying primarily on experience, the proffered expert must explain how that experience leads to the opinion, why the experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts.

Change can be tough. But with the right experts and strategy, Florida’s new love affair with Daubert is no heartache for Team MM&H or its construction clients.




A Valentine of Sorts for Foreign Litigants in Recent Court Decisions Finding Extraterritorial Application of 28 U.S.C. § 1782

By Don Hayden

Until recently, only seasoned cross border dispute practitioners were aware of a valuable arrow in their quiver that allows a party to a foreign proceeding (or even planned proceeding) to obtain full blown US style discovery for use in a pending or contemplated foreign proceeding. Under Section 1782, a federal court can grant an application for discovery in aid of a foreign proceeding (or planned proceeding) if the applicant: (a) has an interest in the foreign proceeding; (b)the discovery will be used in that foreign proceeding; and (c) the target of the discovery request resides in the judicial district where the request is made. Recent court decisions have expanded the scope of Section 1782 much further than previously allowed, all to the benefit of the foreign litigants seeking discovery. 


In a pair of recent decisions, the Second Circuit Court of Appeals joined the Eleventh Circuit in holding that Section 1782 can require discovery of documents held outside the United States that are within the control of a US entity. In In re del Valle Ruiz, 939 F.3d 520,523 (2d Cir. 2019), the Second Circuit agreed with the Eleventh Circuit’s earlier reasoning in Sergeeva v. Tripleton Int’l Ltd., 834 F3d 1194 (11th Cir. 2016). Essentially since § 1782 permits discovery pursuant to the Federal Rules of Civil Procedure, which allows for extraterritorial discovery, § 1782 extends to extraterritorial discovery, including documents held abroad. This holding was quickly confirmed by the Second Circuit in its subsequent decision in. In re Accent Delight Int’l, __ F. App’x ___, 2019 U.S. App. LEXIS 33785 at *6, 2019 WL 5960348 at *7 (2d Cir. Nov. 13, 2019) finding that Section 1782 “does have extraterritorial reach.”

The impact of the Sergeeva decision broadening the reach of § 1782 has proven significant here in Florida. Since the Eleventh Circuit’s decision in Sergeeva, a few years back, Florida federal courts have seen a substantial uptick in § 1782 petitions being filed on behalf of foreign litigants. Imagine the impact of a Section 1782 petition served on a multinational bank’s offices on Brickell Avenue in Miami seeking the bank records for a Brazilian husband’s offshore accounts located in the Cayman Islands for use in a nasty divorce proceeding. That type of valentine is sure to give the wife some traction in efforts to initiate settlement proceedings in Brazil. The impact can be even more pronounced in big ticket commercial disputes in civil jurisdictions where U.S. style discovery is not generally available. The reasoning of these decisions although not explicitly addressed by the courts could be extended to other forms of discovery, including depositions of employees working abroad for a US-based entity. These decisions are just the beginning of any analysis about whether discovery materials held abroad are available under Section 1782. We can expect both the Eleventh and Second Circuits as well as possibly the Supreme Court fleshing out the contours of § 1782 discovery in coming years.


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