If you wonder why insurance fraud and insurance expense are so high in New York state it’s because of opinions like AA Acupuncture Service v. State Farm Mutual Insurance Company. (The fact that the plaintiff is a quack-upuncturist immediately suggests problems, no?) Civil Court Judge Arlene P. Bluth agreed that there was “uncontradicted, overwhelming circumstantial evidence” that an accident had been faked. But State Farm was still not entitled to summary judgment on the litigation of bad-faith claims by three medical providers who insisted that State Farm was liable as the insurer of the woman who claimed to have been injured in the accident. (Plaintiffs deny fraud, though apparently wasn’t able to rebut the evidence of fraud at the motion stage.)

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There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:

Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (”Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.

The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).

In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.

En banc briefs in 07-40058, In re Volkswagen AG:

• Petitioners (Volkswagen)
• Respondents (plaintiffs)
• Product Liability Advisory Council, amicus on behalf of petitioners
• American Intellectual Property Law Association, amicus on behalf of petitioners
• Railroads, amicus on behalf of petitioners
• Law professors, amicus on behalf of respondents
• Trial lawyers, amicus on behalf of respondents

Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing

The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.

In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.

Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.

We had a request to post the District of Minnesota opinion dismissing the meritless Sinclair v. Obama litigation (discussed May 15), so I have uploaded the magistrate’s thorough report and recommendation in Case No. 08-cv-00360-JMR-RLE (D. Minn.).  Sinclair failed to file objections to the February 25 report, and Judge James M. Rosenbaum adopted it in a summary order dated March 19, issuing final judgment the same day.

Note that the magistrate applied 28 U.S.C. § 1915(e)(2)(B)(i) to dismiss the plainly frivolous case sua sponte without requiring the victimized defendants to expend legal fees in responding; in December 2006, I discussed the underuse of this provision in pro se litigation.  More on delusional pro se cases.

I have an op-ed in today’s National Review Online:

Pope Benedict XVI’s visit to the United States this week will be the first papal visit since the Roman Catholic Church abuse scandal broke in 2002. Archbishop Pietro Sambi, the Vatican’s top diplomat in the United States, expresses confidence that the pope will address the scandal while here. Trial lawyers, however, having been asking legislatures for years to address the problem in their own particular way: more lawsuits. That proposed solution, through undoing statutes of limitations and permitting new lawsuits over long-ago crimes, creates more problems than it solves, and hurts more than just the actors responsible for those crimes.

Reviver legislation is pending in six states, and has been proposed in many more.

Updating our Jul. 25, 2007 post:

A plaintiffs lawyer who alleged in court that his adversary’s questions at a deposition caused his client emotional distress has been sanctioned for filing a frivolous suit.

New Jersey Superior Court Judge Alfonse Cifelli entered an order March 26, assessing $2,500 in sanctions against Bruce Nagel, of Roseland, N.J.’s Nagel Rice. He must also pay his adversary’s legal fees of $11,630.

However, Cifelli stayed both payments until the Appellate Division rules on a pending appeal of his ruling last October that dismissed Nagel’s suit.

Cifelli, who sits in Newark, had found Nagel failed to state a claim, holding the litigation privilege allowed the adversary, Judith Wahrenberger, to pursue questions she considered relevant without fear of being sued and that the questions were not “extreme or outrageous.”

Nagel says he has received much encouragement from fellow plaintiff’s lawyers for his action; however, any suspension of the usual litigation privilege in favor of personal liability for attorneys would have been very much a double-edged sword, since the asking of emotionally distressing questions during depositions is not exactly a rarity on either side. (Maria Vogel-Short, New Jersey Law Journal, Apr. 9)(link fixed now).

In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It’s time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society’s Engage (cross-posted from Point of Law).

My latest Liability Outlook examines the problems of retroactive lawmaking and litigation, especially reviver statutes, and even Obama fans will find something to like:

The controversy over whether and how to seat the Michigan and Florida delegations at the Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by “reviving” claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration’s antiterror surveillance program, works to protect settled expectations.

Among matters discussed: litigation against the Catholic church over child abuse by priests and the Michigan legislature’s proposed retroactive repeal of pharmaceutical tort reform in H.R. 4045. Walter has previously discussed the subject.

…as well as your keychain drives, backup tapes, laptops and network servers. New rules of federal procedure will make it more likely that a litigation opponent will show up on your doorstep with such a demand. (Martha Neil, “Opponent Computer Searches Likelier Under Revised Civ Pro Rule”, ABA Journal, Mar. 12; Nolan M. Goldberg, “Is Your Data Wide Open to Your Opponent?”, National Law Journal, Mar. 12).

It has long been noted that lawyers can (when judges let them) employ the process of jury selection to plant themes, factoids and manipulative images favorable to their cause before a trial even gets under way. Which brings us to the just-begun Galveston trial of lawsuits against BP over a deadly 2005 explosion at its Texas City, Tex. refinery:

As Brent Coon, an attorney representing four of the five workers whose lawsuits are set to be tried, talked to potential jurors, he displayed a picture of Enron’s logo on two large screens behind him.

Jim Galbraith, one of BP’s attorneys, objected to the oil company being compared to what happened at Enron, which went bankrupt in 2001. Galbraith accused Coon of arguing his case before the trial had begun.

“We are not trying to say BP is Enron. But Enron did have a major case with a lot of publicity and did a lot of things wrong,” Coon said before state District Judge Susan Criss ordered the Enron logo off the screens. …

Galbraith later objected when Coon showed the jury pool of more than 200 people a well-known photograph of major tobacco company CEOs raising their hands in 1994 just before they testified to Congress that nicotine wasn’t addictive when internal documents showed the companies knew the opposite was true.

“He’s still arguing his case,” Galbraith said.

Criss later told Coon he couldn’t show any more of these images. …

Just to confirm for those who may be wondering, BP, long known as British Petroleum, is not a tobacco company and has no particular connection to Enron other than being in the energy business. Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff’s attorneys who are not Brent Coon. (Juan A. Lozano, “BP Objects to Enron Comparisons”, AP/Forbes.com, Aug. 31).

Think carefully before hitting that send button. The cost of having independent attorneys review 2500 documents (mostly internal emails) that Merck had claimed subject to the attorney-client privilege was $400,000. That $160/email expense is, of course, just the cost of the independent review, and does not include the cost of attorneys litigating whether the documents should be produced to the other side. Judge Eldon Fallon ruled some documents were privileged, and others must be produced; both sides claim victory in reporting by Ashby Jones at the WSJ Law Blog.

The explosion in document creation has caused a litigation explosion in document discovery. This has had multiple effects: first, it encourages the settlement of meritless claims, because of the expense of defending such claims when document discovery can take place. This in turn encourages the bringing of meritless claims, as their extortion value goes up if plaintiffs can force defendants to spend millions of dollars defending themselves.

Separately, the explosion in document discovery has caused a leap in the demand for attorneys, and, in my opinion, is a large part of the recent increase in law-firm associate salaries. And applications to top law schools would drop precipitously if incoming law students had any idea what percentage of high-paid associates’ time is taken up on document discovery disputes over questions of attorney-client privilege.

“An en banc Superior Court panel has ordered a new trial in a case in which a western Pennsylvania trial judge awarded $102.7 million in 2003 to one of the owners of a property company identified as being at the center of a mid-1980s Ponzi scheme.” Two couples, Thomas and Barbara Reilly and Edward and Karen Krall, each jointly owned half the stock in Canterbury Village Inc., a property development that was oversold in what was later described as a Ponzi scheme that bilked thousands of investors. When Canterbury Village landed in bankruptcy proceedings, an Ernst & Young predecessor was called in to organize the books, which were in great disarray. According to a judge’s footnote, “the male halves of Canterbury Village’s two couple-owners pleaded guilty to criminal charges stemming from the Ponzi scheme.” Mr. Reilly served about four years on fraud and tax evasion charges. The eventual reorganization plan approved by the court barred the Reillys and Kralls from any stake in the emerging business entity.

The Reillys then proceeded to sue Ernst & Young, alleging that its report had contained inaccuracies which had injured their business interests. When the Reillys filed requests for admissions in support of their allegations, Ernst first missed a deadline to respond and then, granted a do-over, omitted to include a required verification from its lawyer. The judge in response deemed Ernst to have agreed to all the requested admissions — in effect, preventing the firm from contesting the key elements of the Reillys’ case. A verdict was then entered on behalf of Barbara Reilly that “included $34 million for her ownership interest in Canterbury Village — half of the $68 million appraised value — plus an additional $50,945,222 in interest, based on a rate of 6 percent per annum beginning in 1986, for a total compensatory damage award of $84,018,989. Yeager also awarded her $18.17 million in punitive damages for a total verdict of $102,718,989.” The appeals panel has now decided, however, that loss (in effect) of its right to mount a substantive defense is too harsh a sanction for Ernst’s procedural fumblings, so a retrial is on its way. (Asher Hawkins, “Retrial Ordered in Nine-Figure Fraud Case”, Legal Intelligencer, Jul. 27; Karen Kane, “Seven Fields developer faults Ernst & Young in lawsuit”, Pittsburgh Post-Gazette, Aug. 25, 2002).

The latest AEI Liability Outlook explores my take on the tort reform implications of October Term 2006.

We often discuss regulation-via-litigation, but usually there’s at least a little bit of metaphor in that phrase. But apparently some people might be taking it entirely too literally. Eugene Volokh points us to this story in the Philadelphia Daily News, in which a City Councilman named Darrell Clarke has come up with a new strategy to pass gun-control laws, despite the fact that the state legislature won’t allow him to do so:

What’s different is that he says Council also is preparing to file a legal complaint related to the Legislature’s inaction.

[...]

Asked how Council can move forward on the bills without a state enabling law, Clarke said, “We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case.”

Indeed, why bother with state legislatures at all? Just let lawyers decide what laws would be “reasonable,” and then get courts to pass those laws.

(Think of all the time and money we could save by abolishing elections.)

We earlier covered Judge Easterbrook’s opinion in the Redwood v. Dobson case. On Evan Schaeffer’s Illinois Trial Practice Blog I commented:

A censure for instructing a witness not to answer seems strict, considering the practicality that most parties would prefer that result to cutting off the deposition, and one unfortunately cannot be assured of a federal district judge who is as familiar with the current rendition of Rule 30 as Judge Easterbrook is. (Indeed, the district court judge in Redwood erroneously applied Rule 30 according to the appellate opinion.)

If one were to walk the tightrope that Redwood presents us, I would recommend objecting as follows: “We find that question objectionable. I would prefer not to suspend the deposition here to seek a protective order, but Rule 30 offers me no other alternative. Can we agree that you will postpone this question until the end of the deposition, and we’ll seek the protective order then?” By doing this, one demonstrates good faith and places the burden on the questioner of choosing to end the deposition early over this question. That’s not complete protection by any means: the questioner can stand her ground, and then still seek sanctions for the costs of a second day of deposition if the protective order is denied. It’s an elaborate game of chicken, to be sure, and I’ve been on both sides of intimidating junior attorneys and having senior attorneys try to intimidate me in that game.

Now, in the American Lawyer, Northwestern Professor Steven Lubet stakes a similar position (via Civ Pro Prof Blog):

The Seventh Circuit might have thought the Redwood decision would “defuse . . . the heated feelings” at depositions, but it may well have the reverse effect of making litigation more contentious, potentially turning every deposition into a high-stakes confrontation. Lawyers already play enough chicken, and now they’re going to have to learn a new game-truth or dare.

Lubet complains that Redwood leaves attorneys with only the nuclear option of the expense of seeking a protective order; this isn’t quite the case, as my February comment above shows. But Lubet is correct that there is a problem in treating the victim the same as the originally misbehaving attorney.

Of course, the problem is less with the Seventh Circuit decision as much as with the very clear instruction of Fed. R. Civ. Proc. 30(d)(1) combined with the unwillingness of courts to enforce sanctions or provide adequate protective orders for over-aggressive discovery. If district courts were doing their jobs, that Seventh Circuit opinion wouldn’t look so frightening to practitioners, because attorneys would be behaving in the first place.

“Just tell ‘em you’re a doctor. … Booooiiinnnggggg. … Bounced out like a SuperBall on a hot, dry pavement.” (Dr. Wes, Mar. 19).

After the investment firm was found to have deleted some emails regarding the disputed merger, an incensed trial judge directed the jury to assume that the emails would have backed up Perelman’s charges of fraud; a $1.5 billion verdict followed, including $850 million in punitive damages (May 18 and Dec. 17, 2005). Now a Florida appeals court, by a 2-1 vote, has thrown out the award on the grounds that “no legally cognizable damage was shown as a result of the alleged fraud.” It did not reach the discovery-sanctions issue. (Joe Bel Bruno, AP/ABCNews.com, Mar. 21; Jordana Mishory, “Fla. Appeals Court Tosses $1.58 Billion Verdict Against Morgan Stanley”, Miami Daily Business Review, Mar. 22; Carolyn Elefant, LegalBlogWatch, Mar. 21; opinion text, PDF).

The United States legal system has traditionally permitted significantly more extensive pretrial discovery than other countries’ legal systems have. So what do you do if you’re engaged in litigation in a foreign country, and you want information you couldn’t obtain under their laws? Why, you simply get the U.S. courts to order those who have the information to provide it via American discovery rules, as this China Law Blog post by Dan Harris explains:

“In 2004, the U.S. Supreme Court issued the seminal decision interpreting §1782, construing the language liberally in favor of allowing discovery.  Among other things, it rejected the notion that §1782 was limited to the discovery of evidence that could be discovered in a foreign jurisdiction if the evidence was located there. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

Ponder this for just a moment: The Supreme Court ruled that one could engage in U.S. discovery to gather information for a foreign litigation that one would not be allowed to gather in that foreign litigation.

And as everyone knows, if discovery is good, then more discovery is better, so, as Harris explains, the U.S. courts “tend to ‘interpret §1782 liberally in favor of permitting discovery in aid of foreign litigation.’” He gives examples, including this recent case:

In a further example of this trend, a district court in New York ordered McKinsey Company, the global consulting firm, to produce documents requested by a German litigant in aid of a lawsuit in Munich. In re Gemeinschaftspraxis Dr. Med. Schottforf, 2006 WL 3844464 (S.D.N.Y. Dec. 29, 2006). McKinsey argued §1782 did not apply because the documents were located outside of the United States. The district court disagreed, holding “Section 1782 requires only that the party from whom discovery is sought be ‘found’ here; not that the documents be found here.” Id. at 5. The court also rejected the argument that the production would be unduly burdensome because the documents would have to be translated from German into English so they could be reviewed by McKinsey’s non-German-speaking U.S. counsel.

In other words, Germans engaged in a lawsuit in Germany can obtain an order from a U.S. court to require an American company to turn over documents that aren’t even located in the United States, and that they couldn’t obtain from the German courts in which they’re actually litigating. That seems perfectly reasonable.

(Hat Tip: Ron Coleman, my co-blogger from Likelihood of Success.)

…is not enough contact with the buyer’s state to subject you to the jurisdiction of its courts, according to a judge on Staten Island who ruled that even New York’s “long arm” law has its limits. (Mark Fass, “Contact Held Insufficient to Sue eBay Seller”, New York Law Journal, Mar. 7). I discussed the rise of long-arm jurisdiction, and the powerful impetus it can provide to litigation in many situations, in Chapter 4 (PDF) of my book The Litigation Explosion.

P.S. As commenter Elliot points out, “even” was not the mot juste in this circumstance; New York’s long-arm statute has never been interpreted as liberally as, say, California’s.