July 23, 2019

Archives for February 19, 2013

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


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.

Colorado Court of Appeals: Bashor-type Agreement Upheld as Permissible; Summary Judgment Reversed

The Colorado Court of Appeals issued its opinion in DC-10 Entertainment, LLC v. Manor Insurance Agency, Inc. on Thursday, February 14, 2013.

Insurance Coverage—Broker—Damages—Assignment of Claims—Assault and Battery Exclusion—Negligent Misrepresentation.

DC-10 Entertainment, LLC (DC-10) appealed the trial court’s summary judgment in favor of Manor Insurance Agency, Inc. (Manor). The judgment was reversed and the case was remanded for further proceedings.

DC-10, a nightclub and lounge, obtained insurance coverage through Manor, an independent insurance broker that services multiple insurance companies. Through Manor, DC-10 procured a commercial general liability policy with Penn-Star Insurance Company (Penn-Star) and a liquor liability policy with Founders Insurance Company (Founders).

Heaven Henderson suffered injuries when she was physically assaulted by an unknown assailant on DC-10’s premises. Henderson sued DC-10. DC-10 then submitted claims to Penn-Star and Founders for defense and indemnity coverage. Both companies denied the claim because the policies contained an assault and battery exclusion. DC-10 settled with Henderson and then sued Manor, asserting claims of negligence and negligent misrepresentation. The court granted Manor’s motion for summary judgment.

DC-10 contended the trial court erred in determining that the settlement agreement was insufficient to establish that DC-10 incurred damages. Because the agreement does not contain a pretrial stipulated damages award, DC-10 did not bear the burden of proving the reasonableness of the judgment. Instead, the burden shifted to Manor to prove that the damages award, as determined by the arbitration judge, was unreasonable. In challenging the reasonableness of the damages award, Manor also may raise the affirmative defense of collusion or fraud. Because these are factual issues, the trial court erred in granting summary judgment.

Manor challenged the enforceability of an assignment of proceeds of negligence claims against an insurance broker. Manor owed a duty to DC-10 to obtain the insurance coverage that DC-10 requested. An assignment of claims against an insurance broker, where the claim arises from a commercial transaction and the insured has the same expectations of the insurance broker that he or she would have of the insurer, is not prohibited. Accordingly, DC-10’s assignment of the proceeds from its negligence and negligent misrepresentation claims against Manor to Henderson, the injured third party, was enforceable.

Finally, Manor contended that DC-10’s negligence and negligent misrepresentations claims failed as a matter of law because DC-10 did not present evidence that assault and battery coverage, if obtained, would have covered the alleged patron-on-patron assault in the underlying lawsuit. Because the availability of coverage sought by DC-10 remained a disputed factual question, Manor did not meet its burden of proof on this issue on its motion for summary judgment.

Summary and full case available here.

Samuel Vigil Selected for Judgeship in Bent County Court

On Wednesday, February 13, 2013, Governor Hickenlooper announced his selection of Samuel S. Vigil for a part-time judgeship in Bent County. Judge Vigil will fill a vacancy created by the appointment of Hon. Mark A. MacDonnell to the Sixteenth Judicial District Court bench. Judge Vigil’s appointment is effective immediately.

Samuel Vigil works in private practice in Las Animas. Previously, he worked as a Deputy District Attorney in the Sixteenth Judicial District. He also worked at Hudson Legal, where he practiced criminal law. He earned his bachelor’s degree from the University of New Mexico and his juris doctorate from Tulane University Law School.


Governor Hickenlooper Announces Board and Commission Appointments

On Thursday, February 14, 2013, Governor Hickenlooper announced appointments to several state boards and commissions, including the Child Support Commission, the Colorado Water Conservation Board, and the State Commission on Judicial Performance.

The Colorado Child Support Commission is required by C.R.S. § 14-10-115(16). It is charged with reviewing the child support guidelines at least every four years. The Commission reports to the governor and the General Assembly, and also reports on the implementation of any suggested changes. Governor Hickenlooper appointed Paulette St. James of Denver, to serve as Director in the Colorado Division of Child Support Enforcement and the Colorado Department of Human Services.

The Colorado Water Conservation Board (CWCB) represents each major water basin, Denver, and other state agencies in an effort to use water wisely and protect water for future generations. Some of the CWCB’s responsibilities include protecting Colorado’s streams and lakes, water conservation, flood mitigation, watershed protection, stream restoration, drought planning, water supply planning, and water project financing. Appointments to the CWCB must be confirmed by the Colorado Senate. Governor Hickenlooper’s appointments, expiring February 12, 2016, are:

  • James R.L. “Jay” Gallagher of Steamboat Springs, to serve as a representative from the Yampa-White drainage basin and as a Democrat.
  • Patricia Wells of Denver, to serve as a representative from the City and County of Denver and as a Democrat.
  • Russ George of Grand Junction, to serve as a representative from the main Colorado drainage basin and as a Republican, reappointed.

The State Commission on Judicial Performance is tasked with developing evaluation techniques for district and county judges, justices of the Supreme Court, and judges of the court of appeals.

The member appointed for a term effective immediately and expiring Nov. 30, 2015 is Joe D. Martinez of Alamosa, to serve as a non-attorney.

e-Legislative Report: February 18, 2013

Michael Valdez, Director of Legislative Relations for the CBA, prepared this week’s e-Legislative Report, highlighting the bills the CBA Legislative Policy Committee will support and oppose. Additionally, he summarized 20 bills of interest (10 from each house), and will continue to do so until the flood of legislation subsides.

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Friday, February 15

The CBA Legislative Policy Committee voted to take action on several bills at its weekly meeting:
Bills the CBA will support:

  • HB 13-1136. Concerning the creation of remedies in employment discrimination cases brought under state law.

Bills the CBA will oppose:

  • HB 13-1213. Concerning the uniform asset-freezing orders act.

Stay tuned for summaries of the 20 bills of interest.

HB 13-1059: Exempting Telecommunications Equipment Used in the Provision of Telecommunications from Sales and Use Tax

On January 9, 2013, Rep. Cheri Gerou introduced HB 13-1059 – Concerning a Sales and Use Tax Exemption for Equipment Used by a Telecommunications Provider in the Provision of Telecommunications ServicesThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a sales and use tax exemption for a telecommunications provider’s equipment that is used directly in the provision of telephone service, cable television service, broadband communications service, or mobile telecommunications service.

Statutory towns, cities, and counties are currently authorized to create a similar sales and use tax exemption. The bill does not change this authority, but the law is reorganized to be consistent with other instances where a local government has authority to enact an exemption based on a state exemption. Assigned to the Business, Labor, Economic, & Workforce Development Committee.

HB 13-1060: Raising Cap for Municipal Court Fines to $5,000

On January 9, 2013, Rep. Mike McLachlan introduced HB 13-1060 – Concerning Raising the Maximum Fine that May Be Assessed by a Municipal CourtThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the maximum amount that a municipal court may fine a person convicted of violating a municipal ordinance is $1,000. The bill raises this amount to $5,000. On January 17 the Judiciary Committee took testimony and took the bill off the table.