May 18, 2013

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Colorado Supreme Court: Trial Court Erred by Failing to Balance Privacy Right with Need for Information in Discovery Dispute

April 16, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re Gateway Logistics, Inc. v. Smay on Monday, April 15, 2013.

Privacy Interests—CRCP 26.

In this original proceeding brought under CAR 21, the Supreme Court concluded that the trial court abused its discretion by granting a motion to compel discovery without making findings of fact balancing defendants’ asserted privacy interest with plaintiffs’ need for the information sought, as required by In re District Court, 256 P.3d 687 (Colo. 2011). Accordingly, the Court made the rule absolute, vacated the portion of the trial court’s order compelling the discovery, and remanded the case to the trial court.

Summary and full case available here.

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Tenth Circuit: District Court’s Entry of Default Judgment as Sanctions for Plaintiff’s Discovery Abuses Affirmed

March 28, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Klein-Becker v. Englert on Wednesday, March 27, 2013.

Klein-Becker owned the trademark StriVectin. The StriVectin line of skin care products could only be sold through authorized sellers that Klein-Becker approved and trained. Mr. Englert was never an authorized seller of StriVectin. Nonetheless, Mr. Englert sold StriVectin online without authorization.

Klein-Becker sued Patrick Englert for trademark infringement, copyright infringement, false advertising, and unfair competition under the Lanham Act; false advertising under the Utah Truth in Advertising Act; unfair competition under the Utah Unfair Practices Act; fraud; civil conspiracy; and intentional interference with existing and prospective business relations. Mr. Englert was sanctioned several times for failing to comply with court orders and discovery schedules. The third and final sanction resulted in the entry of default judgment for Klein-Becker on all remaining claims. A bench trial determined damages.

The district court entered judgment in favor of Klein-Becker for Lanham Act damages, fraud damages, stolen property, and copyright damages. The district court later issued a permanent injunction.

Mr. Englert appeals the district court’s (1) entry of default judgment against him on all existing claims as sanctions for his discovery abuses, (2) award of damages to Klein-Becker, (3) determination that Klein-Becker is entitled to a permanent injunction, (4) denial of his demand for a jury trial, and (5) denial of his request to call an unlisted witness.

(1) Entry of Default Judgment on All Claims as Sanctions for Englert’s Discovery Abuses

FRCP 37(b)(2)(A)(vi) allows a district court to issue sanctions, including default judgment against the disobedient party” when a party disobeys a discovery order. To determine if a sanction such as dismissal or default judgment is appropriate, courts should consider “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; . . . (3) the culpability of the litigant.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Due to Mr. Englert’s continued noncompliance with discovery orders, the district court did not abuse its discretion when it entered default judgment on Klein-Becker’s claims for Englert’s discovery abuses.

Although the Tenth Circuit had not addressed the issue, other circuits have held that a district court may establish personal liability through entry of default judgment. The Tenth Circuit agreed that personal liability may be established through entry of default judgment.

(2) Damages Award

Under the Lanham Act, plaintiffs must show either actual damages or willful action on the part of the defendant as a prerequisite to recover disgorgement of profits. Because the parties agreed that Englert’s sales of StriVectin undermined the reputation and goodwill of the brand and hurt Klein-Becker’s relationships with authorized resellers, as well as their competitiveness in the cosmetics industry, the district court found that Klein-Becker established actual damages. Further, the district court found that Mr. Englert’s use of Klein-Becker’s registered mark was sufficient to support the inference that Mr. Englert acted willfully and in bad faith, entitling Klein-Becker to disgorgement of profits. Finally, equitable considerations favored judgment in favor of Klein-Becker. The district court did not err in its damages award calculation.

(3) Permanent Injunction

The Tenth Circuit agreed with the district court’s analysis of the factors for issuing an injunction: (1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Absent a permanent injunction barring Mr. Englert from using Klein-Becker’s trademarks or selling its products, Klein-Becker’s interests could continue to be harmed. The Tenth Circuit held that Klein-Becker’s injury outweighed any interest Mr. Englert had in continuing to violate Klein-Becker’s trademarks and found that a permanent injunction was appropriate and necessary to prevent future violations of the law.

(4) Denial of Englert’s Demand for a Jury Trial

Because he never formally objected to the magistrate judge’s ruling on his jury demand, Mr. Englert waived this argument on appeal. See United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).

(5) Denial of Englert’s Request to Call an Unlisted Witness

Because Mr. Englert had not listed the witness on any of the witness lists he had submitted to the court, the Tenth Circuit concluded the district court did not abuse its discretion in denying Mr. Englert’s request to call the witness.

AFFIRMED.

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SB 13-122: Expanding Rights of Criminal Defendants and Amending the Crime of Tax Fraud

February 24, 2013 by Leave a Comment

On Tuesday, January 29, 2013, Sen. Kent Lambert introduced SB 13-122 – Concerning the Rights of Persons in Criminal Proceedings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a new part for criminal defendant’s rights that includes requiring:

  • The prosecution to provide all discovery documents to the defendant at no cost to the defendant;
  • The prosecution to provide all discovery in its possession within 20 days from the defendant’s first appearance and any discovery it receives after that date within 72 hours of the date when the prosecution receives the discovery;
  • The court to provide a written ruling on any motion if the defendant files a motion at least 10 days prior to the trial date; and
  • The court to hold a hearing on a defendant’s motion to dismiss.

The bill states that the statute of limitations on state tax fraud cases begins to run on the date the tax return is due. For tax fraud cases, the case must be tried in the county where the return was filed or delivered and must be prosecuted by the local district attorney.

Under current law certain tax fraud crimes are class 5 felonies. The bill makes those crimes a class 1 misdemeanor if the amount of tax owed is $3,000 or less. For a first offense, the penalty is limited to a fine equal to 25% of the tax owed and up to one year of probation.

The following changes apply only to tax fraud cases. If the United States internal revenue service rules that the defendant has no untaxed federal income for the tax year related to the charges, the court shall dismiss all charges against the defendant with prejudice. If a district attorney is going to charge a person, the district attorney shall notify the person of his or her intent and request that the person surrender to local law enforcement within 24 hours. If the person does not surrender to local law enforcement, the person may be arrested. The court may not set a monetary bond in excess of the amount of tax owed as specified in the charging document excluding interest. If a defendant is acquitted of any tax fraud charge or has a tax fraud charge dismissed by the court or an appellate court, the court shall enter an order for attorney fees and costs and actual damages for the defendant. The district attorney is liable for the attorney fees and costs and actual damages.

If a defendant appeals a tax fraud conviction, all requested transcripts necessary for the appeal shall be delivered to the defendant within 90 days of the defendant’s written request. In a tax fraud appeal, the Colorado Court of Appeals or Supreme Court shall issue its opinion within one year after the defendant files his or her notice of appeal.

The bill creates a civil penalty of $100 for failure to file a state tax return.

The bill is assigned to the Judiciary and State Veterans & Military Affairs Committees; on February 11 the Judiciary amended the bill and continued the decision on approving the bill to a date in the future.

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Initial Discovery Protocols for Federal Employment Cases Being Tested in United States District Courts

February 19, 2013 by Leave a Comment

Diane_S_King_cutout

By Diane King

As of December 1, 2012, United States District Court Judge William Martinez has implemented the Initial Discovery Protocols for Employment Cases Alleging Adverse Action (“Protocols”). The Protocols are the product of a national committee of defense and plaintiff attorneys with the goal of creating pattern discovery for employment cases that would limit unnecessary cost and delay in the litigation process.

The Protocols would replace initial disclosures with initial discovery specific to employment cases alleging adverse action and provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. Although the Protocols would not affect parties’ subsequent right to discovery under F.R.C.P., they are meant to supersede the initial disclosures pursuant to F.R.C.P. 26(a)(1).

Instead of standard initial disclosures, the Protocols would require both plaintiff and defendant to provide discovery specific to employment cases. For example, the plaintiff will be required to produce any claims, lawsuits, administrative charges and complaints related to the factual allegations at issue in the lawsuit, as well as diaries, journals and calendar entries maintained by the plaintiff concerning the factual allegations of the suit. Conversely, the defendant will be required to produce all communications concerning the factual allegations of the claim, including those between the plaintiff and defendant, as well as between members of management and human resources. The defendant will also be required to produce the plaintiff’s personnel file, and any documentation of discipline.

The effectiveness of the Protocols are currently being tested by individual judges throughout the United States District Courts in a pilot project overseen by the Federal Judicial Center. For a PDF of Judge Martinez’s practice standards for civil and criminal matters, including the Protocols, click here.

Diane S. King is a trial attorney who practices exclusively in the area of plaintiff’s employment/civil rights law. She has represented plaintiffs in all areas of employment law, including federal court, state court, appellate court, arbitration and administrative proceedings. She has written and lectured frequently on employment law issues. She is a member of the National Employment Lawyers Association Executive Board, the Colorado Plaintiff Employment Lawyers Association Board, and numerous other professional boards. Ms. King is also a Fellow in the College of Labor and Employment Lawyers. Ms. King is a partner in the firm of King & Greisen, LLP. She received her Juris Doctorate from the University of California at Berkeley.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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New IAALS Study Asks and Answers “What Has Happened with Rule 16.1 in Colorado?”

December 11, 2012 by Leave a Comment

IAALS has just released a Rule One Initiative research report entitled Measuring Rule 16.1: Colorado’s Simplified Procedure Experiment. In 2004, the Colorado Supreme Court put in place Rule 16.1, a voluntary pretrial process for smaller dollar-volume civil cases, with the hope of providing a more efficient path to resolution. This new report sets forth the results of an empirical study of Rule 16.1, including its role and impact. With growing interest in streamlined pretrial procedures, case differentiation, and optional processes, we felt it was important to examine one such rule that has existed for some time. Through this study, IAALS attempts to answer the question: What has happened with Rule 16.1 in Colorado?

Rule 16.1 is the default pretrial procedure in Colorado district court for typical types of civil actions with less than $100,000 in controversy between any two parties, although any party may “opt out” and elect to use the standard pretrial process instead. This “simplified” procedure generally replaces discovery with mandated disclosures, along with assurances of a faster route to trial. Recovery under Rule 16.1, including attorney fees but excluding costs, cannot exceed the $100,000 limit.

The study documented the highest rate of Rule 16.1 cases in consumer credit collection actions (95%) and other straightforward contract actions in which damages are fixed or liquidated. In 70% of cases proceeding under Rule 16.1, there is no appearance by any defendant, and more than half resolve by entry of default judgment. Overall, the perception among interviewed attorneys and judges is that the cap on damages and inflexible limits on discovery have discouraged attorneys from using the procedure. In other words, given the choice of opting out, many attorneys do just that.

In the 30% of Rule 16.1 cases that were contested and therefore invoked the provisions of the procedure, there is mixed evidence on the rule’s impact. With respect to time to disposition, the county in which the case is filed appears to play a larger role than Rule 16.1. In addition, Rule 16.1 cases have not been shown to have a higher trial rate. However, Rule 16.1 is associated with a decrease in the number of motions filed. It is not possible to know whether the results would have been different if the rule was more frequently applied in actively litigated cases.

Colorado’s experience may contain insight for other jurisdictions as they experiment with formulating sets of rules to more effectively secure the “just, speedy, and inexpensive” resolution of civil cases. Click here to read the full report.

Corina Gerety is Manager of Research for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog, on November 28, 2012.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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Tenth Circuit: A Reasonable Jury Could Find Defendant Officers’ Conduct to be the Proximate Cause of Plaintiffs’ Prolonged Detention

October 17, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Martinez v. Carson on Wednesday, October 18, 2012.

In these cross-appeals, the parties raise challenges to various rulings made by the district court in a § 1983 action arising out of an allegedly unlawful seizure.

The incident underlying this action began when Defendants Carson and Mangin, employees of the New Mexico Department of Corrections, observed Plaintiffs Martinez and Sarmiento sitting or standing with a third man in a poorly-lit area outside an apartment building in a high-crime neighborhood at night. Defendants, who had been patrolling the area, pulled up to the apartment building in an unmarked police car and turned on the emergency lights. The third man fled into the apartment building when Defendants approached, and Rio Rancho police officer Camacho pursued him. Meanwhile, Defendants forced Plaintiffs to the ground, handcuffed them, drew weapons, and conducted a pat-down search. When additional Rio Rancho officers arrived on the scene a few minutes later, Defendants transferred Plaintiffs into the custody of these officers. The Rio Rancho police officers arrested Plaintiffs, holding Mr. Martinez for twelve hours, and Mr. Sarmiento for five hours before their release.

The pertinent question for the jury to decide was whether Defendants had reasonable suspicion of criminal activity when they detained Plaintiffs—if so, the brief seizure was warranted as an investigative detention responsive to officer safety concerns; if not, it was an illegal seizure. The case proceeded to trial, where the jury found for Plaintiffs on their unlawful seizure claim, finding Defendants lacked reasonable suspicion to justify the initial seizure (not the subsequent seizure by the Rio Rancho officers), and awarded Plaintiffs damages.

Plaintiffs now appeal the district court’s orders limiting Defendants’ liability to the first few minutes of the seizure, as well as a discovery sanction. On cross-appeal, Defendants raise issues regarding the district court’s denial of summary judgment based on qualified immunity, and the district court’s denial of their Rule 50(b) motion for judgment as a matter of law.

Section 1983 imposes liability on a government official who subjects, or causes to be subjected, any citizen to the deprivation of any rights.  Thus, anyone who “causes” any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection is satisfied if Defendants set in motion a series of events that they knew or reasonably should have known would cause others to deprive Plaintiffs of their constitutional rights. The Tenth Circuit concluded that a reasonable jury could find Defendants’ conduct to be the proximate cause of at least some portion of Plaintiffs’ prolonged detention following Defendants’ transfer of custody to the Rio Rancho officers.

The Court next reviewed the district court’s discovery sanction against Plaintiffs. On June 22, 2009, the magistrate judge issued an order staying all discovery pending a ruling on Defendants’ summary judgment motion based on qualified immunity. Counsel did not simply conduct voluntary interviews of the Rio Rancho defendants for investigatory or settlement purposes; rather, counsel conducted a deposition-like proceeding with these defendants, using exhibits and asking extensive questions to obtain evidence against the other defendants whose counsel was not noticed to be present. In light of the magistrate judge’s order staying “all discovery” and stating that Plaintiffs would need to proceed under Rule 56(f) to obtain discovery from the Rio Rancho defendants, the district court concluded that the Stay Order was violated. The district court ordered the parties to proceed with the Rule 56(f) deposition of Lt. Camacho, with Plaintiffs bearing the costs they would already have expended had they complied with the magistrate judge’s order in the first place. The district court also required all parties to re-file any motions that included citations to the stricken interview. The Tenth Circuit saw no abuse of discretion in this discovery sanction.

Because Defendants failed to file a notice of appeal within thirty days following the dismissal of their first post-judgment motion, the Tenth Circuit dismissed the cross-appeal for lack of jurisdiction.

For the foregoing reasons, the Tenth Circuit AFFIRMED the district court’s sanctions order, REVERSED the district court’s summary judgment order limiting Defendants’ liability, and REMANDED to the district court for a new trial limited to the issue of whether and to what extent Defendants reasonably should have known their unlawful seizure of Plaintiffs would result in the prolonged detention and, if so, whether any additional damages are appropriate. Defendants’ cross-appeal was DISMISSED.

 

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Tenth Circuit: Importance of Preserving Your Best Arguments in the Proper Administrative Forum

August 29, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Public Service Company of New Mexico v. National Labor Relations Board on August 28, 2012.

Robert Madrid worked for Public Service Company of New Mexico (PNM), collecting overdue bills for the electric utility. Angered by a particularly obstinate customer and without his supervisor’s permission, Mr. Madrid drove to the customer’s home and disconnected the gas line that was not provided by PNM, but another utility. PNM fired Mr. Madrid.  Mr. Madrid’s union filed a grievance on his behalf contesting his dismissal. The union argued that Mr. Madrid’s firing violated its collective bargaining agreement with the company. The union hypothesized that Mr. Madrid may have treated more harshly than other employees guilty of similar things.

The union sent PNM a discovery request demanding documents showing whether and to what extent PNM had disciplined other employees who, like Mr. Madrid, violated the company’s ethics policy or state law.

PNM provided documents disclosing disciplinary actions taken against union employees, but it refused to provide information about discipline meted out on non-union workers.  The company argued that information about non-union employees was irrelevant. PNM eventually handed over the requested documents. However, because of its many months of delay, the Board found that PNM had engaged in an unfair labor practice.  The Board ordered PNM to post a notice informing employees of their rights under the law, PNM’s violation, and the company’s promise to do better going forward.

PNM now petitions the Tenth Circuit for review of the Board’s decision and the Board cross-petitions asking us to enforce its order.  The only question the company raises on appeal is whether the disciplinary information about non-union employees was relevant to the union’s processing of Mr. Madrid’s grievance.

The most significant relevance objections PNM seeks to press in the Tenth Circuit never made their way into the proceedings before the Board. And under 29 U.S.C. § 160(e),  ”No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”

The Tenth Circuit divided PNM’s appeal into two parts: the set of objections it preserved by raising them with the Board, and the set it did not.

Taking the first group first, the Court agreed to hear PNM’s claims that (1) information about the discipline of non-union employees is irrelevant because non-union employees aren’t “similarly situated” to union employees, (2) the union was obliged to timely explain the relevance of its information; and (3) the union’s request was motivated by an improper purpose.

Regarding PNM’s first objection, because the rules serving as the basis for Mr. Madrid’s termination applied to union and non-union employees equally, the documents were held to be relevant. In response to the second objection, the Court found the record contained substantial evidence that the union did timely apprise PNM of the basis for its request. In response to PNM’s third objection, the Court held that PNM did not carry its burden to show affirmatively that the Board’s findings are ones no reasonable mind could accept.

The Court held it had no authority to hear the remainder of PNM’s objections because PNM never raised them with the Board as required by 29 U.S.C. § 160(e). Accordingly, PNM’s petition for review was denied, and the Board’s cross-petition for enforcement of its order was granted.

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Colorado Supreme Court: Documents Subpoenaed Pursuant to CRCP 45 May Be Produced Only at Designated Hearing Unless Agreement Otherwise or Court Order

June 18, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re the Marriage of Wiggins on June 18, 2012.

CRCP 45—Production of Subpoenaed Documents.

The Supreme Court reversed the district court’s discovery order and held that documents subpoenaed pursuant to CRCP 45 may be produced by the subpoenaed witness only at the deposition, hearing, or trial specified in the subpoena, unless all parties and the subpoenaed witness agree to an alternate arrangement or by other court order. The Court remanded the case to the district court with directions to ensure that all physical and electronic copies of the subpoenaed employment file and other documents, which were improperly obtained before the hearing specified in the subpoena, be identified and recovered, and then returned or destroyed. The Court also directed the district court to determine whether sanctions in this case were appropriate for the rule violation.

Summary and full case available here.

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Colorado Supreme Court: Prosecutorial Work Product Exception Protects from Compelled Disclosure All Opinion Work Product Prepared by Prosecution in Anticipation of Any Criminal Prosecution

May 16, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re People v. Angel on May 14, 2012.

Rules of Criminal Procedure—Discovery—Prosecutorial Work Product.

The Supreme Court determined that Crim.P. 16(I)(e)(1) protects against the disclosure of a prosecutor’s opinion work product, and made the rule absolute. The Court reversed the district court’s discovery order and held that the prosecutorial work product exception under Crim.P. 16(I)(e)(1) protects from compelled disclosure all opinion work product prepared by the prosecution in anticipation of any criminal prosecution. The Court remanded the case to the district court to determine, through an in camera, ex parte review, whether the contested materials contain protected prosecutorial opinion work product.

Summary and full case available here.

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Tenth Circuit: Government Properly Withheld Six Mug Shots from Newspaper under Exception to FOIA

February 23, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in World Publishing Co. v. United States Dep’t of Justice on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is publisher of the Tulsa World newspaper and appeals from the district court’s judgment that Respondents properly withheld six booking photographs (mug shots) requested by Tulsa World. Tulsa World requested the photos under the Freedom of Information Act (FOIA), and the government relied upon Exemption 7(C) to withhold them. On appeal, Tulsa World argues that the district court erred in granting the government’s motion for summary judgment and denying it discovery so that it might better respond to that motion.

“Congress enacted the FOIA to ‘open agency action to the light of public scrutiny.’ There are certain instances, however, when Congress has deemed disclosure inappropriate; these exceptions are covered by 5 U.S.C. § 552(b). The government bears the burden of demonstrating that the request falls into one of the enumerated exceptions, and we construe narrowly in favor of disclosure.” A three-part test has is generally followed to determine if information is covered by Exemption 7(C): “A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.” It is undisputed that the photos were taken for a law enforcement purpose. The Court, however, determined that “a booking photo is intended for use only by a specific and small group of people,” which provides reason for a court to protect an individual’s privacy interest in that photo. Also, while the paper suggests that several public interests will be furthered by disclosing the photos, the Court found that Tulsa World’s request would not further the purpose of the FOIA. Lastly, the district court did not abuse its discretion by denying discovery.

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Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace

February 15, 2012 by Leave a Comment

The intersection of social media and the workplace has become a given. Use of social media is rapidly expanding while societal norms regarding exposure of employment-related information continue to erode. The result is an increasingly complex social media environment for employees, employers, and attorneys.

Added to the complicated mix are various cases and National Labor Review Board opinions that attempt to define what recourse an employer has against an employee over social media content. When can an employer fire an employee over what the employee said on their personal social media accounts? When is the employee’s speech protected? The questions can sometimes be hard to answer, especially if the company has an underdeveloped, or no, social media policy.

Once an employment decision is made, a host of new issues arise regarding the discovery of social media. Different rules apply to the discovery process in the context of litigation and mediation, and the distinction of what may or may not be discovered in either situation could make all the difference in a case.

On February 22, 2012, join us at CBA-CLE to learn about employment law and social media trends and how they affect you, your clients, and your practice.

This interactive program, Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace, will use hypotheticals and audience inquiries to approach numerous issues important for practitioners, including:

  • Recent Court decisions and NLRB opinions and their impact on workplace social media policies;
  • Discovery and use of social media in litigation; and
  • Discovery and use of social media in mediation.

As a primer for the discussion, Magistrate Judge Kristen L. Mix, a faculty member for the program, has provided us with a number of Practice Tips that attorneys should be mindful of when engaging in discovery of social media in litigation:

  1. Seek discovery of social networking information from the opposing party before subpoenaing Facebook or other social networking websites.
  2. Perform a public search for information usually available on a social networking website.
  3. Be mindful of your ethical responsibilities. Hiring a private investigator to “friend” the opposing party may be “inherently deceitful and unethical, even if the investigator uses his own name.”(1) Contacting the opponent yourself would likely be impermissible direct contact, and may also violate the rule providing that a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.(2)
  4. In complex cases, explore the possibility of “unbundling,” or development of a litigation management team to handle electronic data.(3)
  5. This is not your father’s discovery. Successful discovery of social networking information may require significant efforts to educate the judiciary about the fallacy underlying electronic discovery (just because something is electronic, it can be searched and produced instantly) and the actual cost and burden of production.
  6. Advise your clients to be prudent and avoid spoliation sanctions. “The courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party.”(4)
  • (1) Phil. Bar Ass’n Prof’l Guidance Comm. Op. 2009-02 (Mar. 2009), available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf.
  • (2) See, e.g., Robert S. Kelner & Gail S. Kelner, Social Networks and Personal Injury Suits, N.Y.L.J., Sept. 24, 2009, available at www.law.com/jsp/nylj/PubArticleFriendlyNY.jsp?hubtype=&id=1202434026615.
  • (3) Howard B. Iwrey et al., A Multidimensional Solution to the Problems of Runaway Discovery, 29 No. 6 OF COUNSEL 12 (June 2010) pp. 2-3.
  • (4) Pension Comm. of the Univ. of Montreal Pension Plan v. Bank of Am. Sec. LLC, 685 F. Supp. 2d 456, 472 (S.D.N.Y. 2010).

CLE Program: Employment Law and Social Media – Rights, Obligations, and Disputes in the Workplace [RESCHEDULED]

This CLE presentation has been rescheduled. Check back soon for program information or call (303) 860-0608.
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Aaron Solomon: The Colorado Supreme Court Defines a Broad New Exception to Rule 26

November 8, 2011 by Leave a Comment

Editor’s Note: The Colorado Supreme Court issued its opinion in In re Averyt v. Wal-Mart Stores, Inc. on November 7, 2011.

In Averyt v. Wal-Mart Stores, Inc., (No. 11SA66) the Colorado Supreme Court held that publicly available documents need not be disclosed pursuant to Rule 26.

In this case the plaintiff slipped and injured herself on a grease spill at a Wal-Mart store. At trial, as it had throughout discovery, Wal-Mart claimed that no such grease spill had occurred. The plaintiff impeached this testimony with questions based on a previously unproduced report from the City of Greeley documenting a grease spill that it had located during the trial. After its objection to the use of the report was denied by the trial court, Wal-Mart entered the report into evidence while rehabilitating its witness. The next morning, Wal-Mart informed the plaintiff that it had located a witness who remembered the spill, and numerous documents corroborating the existence of the spill. After it (not surprisingly) lost at trial, Wal-Mart sought and received a mistrial based in part on the plaintiffs’ purported failure to disclose the Greeley report.

The Colorado Supreme Court held that CRCP 26 did not apply to the Greeley report (and hence there was no duty to disclose it) because it was a public document equally available to all parties. It further held that “nothing in Rule 26 requires disclosure by a party of documents which it would not be required to produce, if requested, under C.R.C.P. 34.” The court held that “[w]e expressly adopt this rule because a contrary rule would require continuing disclosure by one party of voluminous information that the party discovers in the public domain . . . . The burden imposed upon the parties by such continuing disclosure outweighs any benefit of expediency gained by automatically sharing the information where, as here, the public information is readily available and equally accessible to both parties.”

Justice Marquez, joined by Justice Coats, concurred with the judgment in part and wrote separately to express the belief that the rule announced by the Court was too broad and allowed parties to hide responsive and relevant documents in their possession so long as the documents were “public.” The Justice expressed the concern that such documents might be exempt from disclosure even when they went to “disputed issues of knowledge.”

Interestingly no one commented on the irony of Wal-Mart, which appears to have violated its discovery obligations by concealing (or at least failing to locate) documents and a witness relating to the spill, being the party complaining about a failure of disclosure.

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on November 7, 2011.
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