New England Litigation

Some Useful Ideas to Think About at the Start of Every Lawsuit

For those who haven't seen it before, lawyers at Susman & Godfrey have put together a useful list of pre-discovery agreements that counsel for both parties may want to consider addressing and agreeing upon at the outset of litigation.  It can be found in Section 55:19 in the attached document, starting at page 20.

The protocol generally seeks to make life easier for both sides.  It includes a number of ideas that sound simple and like common sense, but often don't happen, such as:

"As to any discovery dispute, the lead lawyers will try to resolve it by email and phone, and no one will write letters to the other:  just email and phone calls."

"All papers will be served on the opposing party by email."

Other ideas may not work in every case, but in certain litigation may make a lot of sense as means to keep everyone better organized and on the same page:

"All deposition exhibits will be numbered sequentially (Ex. 1, Ex. 2, etc.) regardless of the identity of the deponent or the side introducing the exhibit, and the same numbers will be used in pretrial motions and at trial."

"Depositions will be taken by agreement, with both sides alternating and trying in advance to agree upon the dates for depositions, even before the deponents are identified."

"Documents that the other side claims are privileged can be snapped back as soon as it is discovered they were produced without any need to show the production was inadvertent or that the documents are privileged."

"The parties will prepare and provide a notebook for the court and each juror. The notebook may contain a cast of characters, a list of witnesses (and their photos), a time-line, a glossary, dispositive documents, and blank paper for jurors' personal notes. The parties will do their best to reach agreement on the contents of each item in the notebook."

As they point out, sometimes there suggestions will benefit one side over the other, but on balance both sides will probably end up in the same boat.  As they say, "Don't be greedy."

It's a point well taken.

Recent Maine Decision Provides Guidance on What's Required When a Party Cannot Find Responsive Documents

Magistrate Judge Rich issued an interesting opinion late last year that provided guidance on the specificity that a third-party must provide to support its assertion that it has been unable to locate documents in response to a subpoena. 

In Campbell v. First Am. Title Ins. Co., Civil Action No. 08-311-P-S (D. Me. Nov. 18, 2009), the plaintiff served a subpoena on third-party T&M Mortgage Solutions, Inc. (“T&M”), seeking production of mortgage and loan files.  T&M failed to produce anything by the designated return date, and so the plaintiff moved for an order requiring T&M to show cause why it should not be held in contempt.  In response, T&M filed two affidavits from its employees that stated, among other things, that one of the employees personally searched through the company's closed files in a storage area and was unable to locate the processing file that would have contained the subpoenaed documents, that they were unable to locate the processing file pertaining to the mortgage in question, that they had no reason to believe that the file was destroyed, and that they were unaware of any reason why they were unable to locate the processing file.  In other words, the file should have existed, but they were unable to find it.

Quoting a California district court case, Judge Rich stated that “[o]rdinarily, a sworn statement that a party has no more documents in its possession, custody or control is sufficient to satisfy the party’s obligation to respond to a request for production of documents[,] ... [i]f the documents sought are known to have been in the party’s possession, custody, or control, it would not suffice for that party to simply disavow their existence without adequately explaining the disposition of the documents.”  Id. at 4.  The court agreed with the plaintiff that the "affidavits are insufficient to assure First American, or the court, that reasonable efforts have been made to comply with the subpoena, including by way of ... a thorough search throughout T&M’s premises for documents that T&M effectively concedes should have been maintained within its files."  Id. at 4-5.

The court directed T&M to undertake a new search and, if it still could not find the documents, to "submit verified declarations (i) detailing the time(s), date(s), and specific location(s) of its search for responsive documents; (ii) identifying the person(s) who conducted the search; and (iii) stating whether and when T&M has contacted the individual, known to T&M, who closed the plaintiffs’ October 2004 loan to request a copy of the documents."  Id. at 5.

The decision provides a useful reminder on the need for details to back up a claim that documents sought in discovery are unavailable.  Presumably the same degree of specificity would be required where it is a party that has been unable to find the responsive documents, as well.

Unusual First Circuit Decision Reversing Order Precluding Expert Testimony

The First Circuit issued a relatively unusual decision recently vacating a district court's discovery sanction that excluded the plaintiff's expert witness, which in turn led to the dismissal of the case.

In Esposito v. Home Depot U.S.A., Inc., No. 08-2115 (1st Cir. Dec. 30, 2009), the plaintiff failed to produce an expert designation within the deadline set by the district court (a deadline that the plaintiff apparently had proposed).  The defendants moved for summary judgment, in part based on the plaintiff's failure to designate any expert to support his product liability claim.  The plaintiff never offered any plausible explanation for his tardy disclosure, and so the district court entered an order precluding the expert from testifying.  That order left the plaintiff without an expert, effectively leading to the dismissal of the case.  It was that latter effect that seemed to trouble the court of appeals the most, leading to a fairly rare decision where - even applying the deferential abuse of discretion standard of review of the trial court's discovery order - the appellate court reversed.

The First Circuit stated that, "Because all parties acknowledged that the sanction carried the force of a dismissal, the justification for it must be comparatively more robust."  In other words, where the preclusion of an expert is likely to result in the end of a lawsuit, district courts now must factor that impact into their analysis.  The court was quick to point out that this "is not a case of a party repeatedly balking at court-imposed deadlines," or "a case where the sanctioned party ignored pre-sanction warnings from the district court," or "an act of calculated gamesmanship on the part of the sanctioned party." According to the court of appeals, the lack of such evidence, coupled with the severe impact of the sanction on the plaintiff, outweighed the lack of justification for the plaintiff's failure to comply with the scheduling order and the harm caused to the defendant (in the form of having to prepare summary judgment papers on a shifting playing field, the need to have their own expert supplement his disclosure in light of plaintiff's untimely disclosure, among others). 

Judge Woodcock, sitting by designation, offered a thorough and thoughtful dissent, expressing concern that the First CIrcuit was imposing a new heightened standard for district courts to meet in deciding whether to preclude experts.  In Judge Woodcock's view, the majority's decision may result in trial courts feeling constrained to exclude experts only where it makes no difference on the case; conversely, where the decision would have a significant impact on a party's ability to present its case, trial courts may be reluctant to enter such a stiff penalty.  If that bears out, it might mean that the threat of preclusion as a tool for policing compliance with trial courts' scheduling orders doesn't carry as much weight as it always has. 

It will be interesting to see if Judge Woodcock's concerns come to pass as district courts in the First Circuit apply Esposito in the future.

Supreme Court Issues Decision on Interlocutory Appealability of Discovery Orders Compelling Production of Privileged Materials

The Supreme Court has issued its decision in Mohawk Industries, Inc. v. Carpenter, No. 08-678, discussed in my posts of September 25th and October 9th.

In Mohawk, the Court addressed a circuit split on whether the collateral order doctrine permits an immediate appeal of a discovery order permitting discovery based on a finding of a waiver of the attorney-client privilege.

At issue in the case was information concerning an interview that a former employee of Mohawk had with Mohawk's outside counsel while he was still employed by Mohawk.  Mohawk argued that the interview and any documents related to it were privileged, but the district court ruled that Mohawk had waived the privilege previously and so the materials were discoverable.  The court of appeals declined to accept an interlocutory appeal, holding that the collateral order doctrine did not apply because the discovery order would not be “unreviewable” on appeal from the district court’s final judgment.

The Supreme Court upheld the Eleventh Circuit's ruling in a decision issued December 8th, rejecting decisions in the Third, Ninth and D.C. Circuits that had permitted interlocutory appeals of discovery-related orders compelling production of arguably privileged materials under the collateral order doctrine. 

The Court recognized that its stringent standards for immediate appeals "may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment," but that "has never sufficed."  Slip op. at 5 (internal quotation omitted).  As the Court framed the issue, the "crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders."  Slip op. at 7.  The Court concluded that "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney client privilege.  Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence."  Slip op. at 8. 

Finally, the Court noted that in extreme circumstances, a disgruntled litigant still retains limited options for seeking an interlocutory appeal of a privilege-related discovery order.  The party could ask the district court to certify, and the appellate court to accept, an immediate appeal under 28 U.S.C. § 1292(b); the party could petition for mandamus review; the party could "defy a disclosure order and incur court-imposed sanctions"; or the party could invite the district court to hold it in contempt for disobeying the court's disclosure order, from which the "party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment."  Slip op. at 9-10.

Justice Thomas issued a concurring opinion, essentially asserting that the Court's collateral order case law has created a mess that should be avoided altogether in favor of a clear, predictable application of the appellate jurisdiction statute, which effectively would abolish the collateral order doctrine altogether.

In reality, those appellate options are extremely narrow and difficult to obtain, and most parties may be unwilling to risk sanctions or contempt, meaning that most litigants who believe they've been ordered to turn over materials they think are privileged will have little recourse until an eventual appeal post-judgment.  And by that point, the ability to effectively raise the discovery ruling in the context of whatever other substantive legal issues are on appeal may be minimal.

It's Getting Even Harder to Appeal Interlocutory Discovery Orders, Even When Trade Secrets Are Involved

The First Circuit recently issued a helpful reminder on the difficulties in trying to file an interlocutory appeal from a discovery order, even where the order is going to place in the public eye materials for which there is a colorable argument about their status as confidential trade secrets.

In Awuah v. Coverall N. Am., Inc.,No. 09-1284 (1st Cir. Oct. 27, 2009), the defendant sought to keep sealed portions of the deposition of its former CFO, on the ground that the testimony revealed "confidential information about Coverall's business practices including various accounting matters."  The district court agreed to keep about half of the identified portions of the transcript under seal, but ruled that the remaining portions would be unsealed.  The practical issue from the plaintiffs' perspective was that, even though it had unfettered access to the complete transcripts and could rely upon them in its case (at least as long as they were filed under seal), the sealed status precluded them from sharing the material with experts and using it in other ways.

The defendant filed an interlocutory appeal, arguing that the discovery order imposed immediate harm that could not effectively be raised on appeal after final judgment, because the horse would already be out of the barn.  The court began by observing that

Many discovery orders are effectively reviewable on final judgment, but disclosure of allegedly privileged or sensitive information may threaten immediate harm that cannot later be undone on review of the final judgment. The unsealing order in this case meets that test and also definitively resolves the question whether the disputed passages are to be made public.

Nevertheless, the court ultimately rejected the appeal as premature, holding that the appeal failed to "present an important issue meriting immediate review."  The court rhetorically asked itself "why such requirements exist at all if an order may cause irreparable harm that cannot be undone by later review," and answered by noting unsympathetically that "the final judgment rule implicitly accepts that some harms may result from deferring appeals."  The court seemed most concerned about controlling its own docket, as "piecemeal appeals impose costs of their own by multiplying proceedings and delaying resolution."

As the court framed the "importance" issue, it stated that "cases deemed to qualify usually present a disputable legal issue whose importance turns on the likelihood that it will arise in other cases," where there is a generalized benefit to the "system" in resolving the interlocutory appeal.  Where there is no "legal issue presented by the merits of the discovery order," but rather a factual analysis of whether disclosure would or would not implicate confidential trade secrets, the court concluded that the importance step was not met. 

The court was careful to carve out situations involving discovery orders against third-parties.  "The situation is different where a discovery order is directed to a non-party who is not otherwise part of the litigation ... and thus cannot ordinarily appeal from a final judgment."  But that will serve as little consolation to the defendant or to parties challenging disclosure of trade secrets in other cases.

Supreme Court Set to Resolve Dispute About Appealability of Discovery Orders Finding Waiver of Attorney-Client Privilege

The Supreme Court is set to hear oral arguments next month in an interesting matter that will resolve a split on whether a district court's order allowing discovery over an attorney-client privilege objection is immediately appealable under an exception to the finality requirements that normally govern appeals.

In Mohawk Industries, Inc. v. Carpenter, No. 08-678, argument is scheduled for October 5, 2009.  The appeal is from a decision of the Eleventh Circuit in August 2008, dismissing an appeal from Mowhawk arising from the district court's order allowing discovery over Mowhawk's assertion of the attorney-client privilege. 

The case arose after Carpenter reported to Mohawk that several temporary employees actually were illegal aliens. In the course of its investigation, Mohawk required Carpenter to talk to Mohawk's outside counsel.  Mohawk later terminated Carpenter, causing Carpenter to file this lawsuit in which he alleged that he had been terminated in connection with his refusal to withdraw his report about illegal aliens.

During the litigation, Carpenter sought to obtain through discovery information about his interview with Mohawk’s outside counsel that had occurred at Mowhawk's insistence.  Mohawk declined to provide any information, arguing that the interview and entire investigation were protected by the attorney-client privilege.  The district court ruled that Mohawk had waived the privilege by putting the communications themselves in play during a separate class action lawsuit that was pending at the same time. 

Mohawk appealed to the Eleventh Circuit, asserting that the district court's order allowing the discovery was immediately appealable under the collateral order doctrine providing an exception to the finality requirement of 28 U.S.C. § 1291.  The Eleventh Circuit dismissed the appeal, rejecting Mowhak's argument that the collateral order doctrine applied, holding that the discovery order would not be “unreviewable” on appeal from the district court’s final judgment.  See Carpenter v. Mowhawk Indus., Inc., 541 F.3d 1048 (11th Cir. 2008).

The Supreme Court court granted certiorari to resolve a circuit split on whether the collateral order doctrine permits an immediate appeal of a discovery order permitting discovery based on a finding of a waiver of the attorney-client privilege.

This will be an interesting one to see resolved.

Admissibility of Your Own Expert's Words Against You

I recently had an article published in the summer 2009 issue of a pretrial practice newsletter of the ABA Section on Litigation entitled Is Your Expert Your Ally or Your Enemy.  The article addresses the somewhat unique issue of whether one party can use an opposing party's own expert against the opposing party. 

The situation may arise where, for instance, a party designates an expert, produces an expert report, maybe even lets the expert be deposed, and then at some point before trial opts to "de-designate" the expert and not call him or her as a trial witness.  If there's something useful to the other party in the expert's report, or if the other party managed to get some helpful testimony from the expert during a deposition, can that other party call the opponent's "de-designated" expert at trial or offer part of the expert's deposition testimony into evidence?  And if so, when during the trial should that be permitted, if at all?  Read the article to find out more.

Judge Orders Lawyer to Remove Deposition from YouTube

There may be some limits to what you can do with a deposition.

An article on Law.com today is reporting that a plaintiff’s lawyer in a lawsuit pending in state court in Texas was taken to task for posting an excerpt of a deposition of one of the defendant’s employees on YouTube, with a link to the posting on the plaintiff’s law firm website.

According to the article, the defendant didn’t appreciate the publicity, and filed a motion seeking sanctions and a protective order barring plaintiff’s counsel from using the discovery process for harassment.  The state court reportedly issued an order on December 3rd, directing the plaintiff’s lawyer to remove the deposition excerpt from YouTube and to delete the link on the law firm website.  Apparently the court’s rationale was that the deposition was not a public record, because it had not been filed with the court, and therefore the plaintiff had no right to post it on YouTube.

In response, the plaintiff’s counsel reported that he plans to file a paper transcript of the deposition with the court, and then post the entire deposition video – rather than just an excerpt – back on YouTube.

The order requiring the plaintiff’s counsel to delete the deposition excerpt from YouTube because it was not a public record seems unusual, in that depositions normally are not deemed to be confidential absent issuance of an appropriate protective or confidentiality order by the court that governs the discovery process; no such order was in place in that case.  The ruling may have the unintended consequence of causing parties needlessly to file copies of discovery documents and depositions with court clerks, clogging court files unnecessarily, if lawyers view the practice as a means to cloak all sorts of things under the public record mantle used as a test by that court.

Court Rules Party Can Compel the Videotaping of Her Own Deposition Even if Opposed by the Party Taking the Deposition

In an interesting decision issued in July, and made available publicly in August, a state court judge in New Jersey ruled that a plaintiff can compel the videotaping of her own deposition, even if the deposing party opposes it.

In LaMarche v. Hackensack University Medical Center, BER-L-1100-07, a medical malpractice action, the defendant noticed the plaintiff’s deposition.  In response, plaintiff’s counsel informed defense counsel of his intention to have the deposition of his client videotaped.  Plaintiff’s counsel explained that he wanted the deposition videotaped for several reasons, including the fact that his client was old and infirm and might not be alive at trial, Defendant objected to the videotaping, saying that if plaintiff’s counsel wanted to preserve his client’s testimony for use at trial, he should schedule his own deposition of the plaintiff following defendant’s discovery deposition.

The court engaged in an exhaustive study of the history of videotaping of depositions in New Jersey and elsewhere and the reported decisions discussing the use of videotaping for depositions. 

Eventually, the court concluded that “Plaintiff should not be precluded from availing herself of this superior technology simply because defense counsel is somewhat camera shy and/or uncomfortable about the prospect of questioning Plaintiff before a video camera.”  Therefore, “[i]rrespective of who initiates the deposition, any party to the litigation may videotape so long as a stenographer also records the examination.”

So now you know where to look if you ever have a dispute about whether a party can videotape a deposition against the other party’s wishes.

Control Your Own Witness in a Deposition, or Face the Consequences

In case anyone needs another reminder of the need to keep your own witness under control at a deposition, a recent decision provides an excellent lesson.  In GMAC Bank v. HTFC Corp., Civil Acton No. 06-5291 (E.D. Pa. Aug. 12, 2008), the court rejected the defense attorney’s request to reconsider sanctions imposed on him for failing to take appropriate steps to stop his client from swearing and otherwise behaving abominably at deposition.

As the court explained, “once a witness deponent conducts himself or herself in the manner which is designed to obstruct the proceedings, I don't think counsel can just sit idly by and do nothing. I would equate it to a situation where a witness is providing false and perjurious testimony and counsel is aware of it, and under the Rules it requires that counsel has an obligation to correct it and/or withdraw from the proceedings.”  Id. at 4.

As recounted by the court in an earlier opinion, the deponent engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony. In fact, [he] used the [“f word”] and variants thereof no less than 73 times…. The Court is left with the impression that such abusive language was chosen solely to intimidate and demean opposing counsel.”  GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 187 (E.D. Pa. 2008). 

The video recording provided further evidence of the witness’ inappropriate behavior.  “At multiple points during the deposition, Wider would follow his inappropriate, obstructive, or dilatory remarks with a gleeful smirk directed at his counsel, at the transcriptionist, and even directly at the camera….  In fact, after a particularly odious instance of obstruction, Wider would even pat himself on the back, flaunting his exploitation of the deposition process, and asking, “‘Isn't the law wonderful?’”  Id. at 189. 

As a result of the misconduct both of the witness and of his attorney in failing to take appropriate steps to correct the witness’ misconduct, the court ordered that the deposition resume in front of a magistrate judge in the federal courthouse and that the witness and his attorney jointly pay the other party the fees and expenses related to the motion for sanctions and the initial deposition.

In denying the attorney’s motion for reconsideration, the court observed that counsel “allowed the deposition to drag on for over two days and nearly twelve hours of testimony, much of which was an unmitigated waste of time and resources. [The attorney] never once suggested that the ill-fated deposition be adjourned. Thus, although courts would be wise to hesitate in close cases before second-guessing an attorney's judgment as to when a deposition should be terminated, no such pause is warranted here.”