Tampa: “When medical malpractice lawyer Michael J. Trentalange asked St. Joseph’s Hospital for every ‘adverse incident’ report made since the hospital opened in 1934, the hospital pushed back hard. In July, the hospital sued him, and Trentalange sued right back, the Web site Health News Florida reported.” (AP/Sarasota Herald Tribune via White Coat).
Posts Tagged ‘discovery’
Hallowe’en costumes at the deposition
Boston lawyers recall a very strange sexual harassment lawsuit in which the defendant’s CEO “wore a different Halloween costume to each day of his [six-day] deposition”. [Zach Lowe, AmLaw Daily]
“I wasn’t sanctioned. My client was sanctioned.”
John Steele at Legal Ethics Forum finds much to unpack in a lawyer’s statement defending his zealous advocacy in a California discovery dispute.
Discovery overreach in Prop 8 battle?
According to LawDork, proponents of California’s Proposition 8 are planning to engage in some seriously broad discovery [PDF, see pages numbered 11-12] in their defense of the law against constitutional challenge:
We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means. We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records). We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.
Translated, this seems to mean they will make public records officials cough up the information needed to cross-check California birth against domestic-partnership records to “catch” people whose names appear in both data sets and thus appear likely to be gay parents. In case that doesn’t do the trick, they want to force assisted-reproduction clinics to disclose information about their clientele. Wow.
P.S. In answer to several questions, no, Ted Olson and I are not related.
The civil litigation death penalty
There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”
Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.
The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.
A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))
A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.
White Coat’s lawsuit story, cont’d
Installments 3 and 4 of the ER doctor’s saga deal with his preparation for being deposed, and the deposition itself (earlier).
“10 Things Never to Put in Email”
Because hostile lawyers will be looking for them in discovery: “We’re going to do this differently than normal,” “I don’t want to discuss this in e-mail. Please give me a call,” “Don’t ask. You don’t want to know,” and seven more. (Roger Matus’s Death By Email, Dec. 2)(& Schwartz, Sylvester/Wichita Eagle).
Nowhere to hide
When your litigation opponent subpoenas your Facebook, Amazon, MySpace, Flickr, LinkedIn and (locked) Twitter pages (& Likelihood of Confusion).
“Cisco Turns Up Heat in ‘Patent Troll’ Case”
If, like Eric Albritton, you’re a successful Texas lawyer who wants to claim that critical postings on the Patent Troll Tracker blog caused you “embarrassment, humiliation, mental pain and anguish,” you might actually have to document that. (Molly McDonough, ABA Journal, Nov. 3; earlier).
November 4 roundup
- Thanks to guestbloggers Victoria Pynchon (of Negotiation Law Blog) and Jason Barney for lending a hand last week;
- Will the U.S. government need to sponsor its own motorcycle gang in order to hold on to trademark confiscated from “Mongols” group? [WSJ law blog]
- With a little help for its friends: Florida Supreme Court strikes down legislated limits on fees charged by workers’ comp attorneys [St. Petersburg Times, Insurance Journal]
- Stripper, 44, files age discrimination complaint after losing job at Ontario club [YorkRegion.com, Blazing Cat Fur via Blog of Walker] The stripper age bias complaint we covered eight years ago was also from Ontario;
- Federal judge green-lights First Amendment suit by college instructor who says he was discriminated against for conservative political beliefs [NYLJ] (link fixed now)
- Judge orders parties to settle dispute over noisy parrots after it reaches £45,700 in legal costs [Telegraph]
- How to make sure you’re turned down when applying for admittance to the bar [Ambrogi, Massachusetts]
- Questions at depositions can be intended to humiliate and embarrass, not just extract relevant information [John Bratt, Baltimore Injury Lawyer via Miller]