Articles Posted in Discovery

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The Maryland Court of Special Appeals recently decided Johnson v. Franklin, a lead paint case with an unique discovery issue.

The Underlying Case

I’m glad you kept reading, you law scholar you!  Anyway, these are the facts. A lead paint case is filed in Baltimore City Circuit Court pertaining to a property where Plaintiff used to live. The property had long since been rehabbed and sold.  Therefore, Plaintiff could not just walk in the door to do the lead-paint testing, that he claimed he needed for his lawsuit. As a result, Plaintiff sends a letter to the current owner, asking if he can stop by for some “non-invasive environmental testing” of the property. The owner does not respond, which prompts the plaintiff to file a complaint to perpetuate the evidence. Specifically, he seeks an “equitable bill of discovery,” which would grant him a right of lawaccess to the property. The current owner does not respond to the motion but appears at a hearing pro se.  The court denies the motion, because the current owner’s privacy interests outweighs the Plaintiff’s need to conduct testing.

This makes little sense to me.  How burdensome is it to have your property tested?  I can’t figure out why the property owner would fight it either. Plaintiff agrees and appeals to the Maryland Court of Special Appeals, alleging that the trial court abused its discretion by denying the complaint/request/petition.

Equitable Bill of Discovery

The Court spent a decent amount of time talking about what a bill of discovery was in the first place. Unlike the Federal Rules and most State Rules of Civil Procedure, the Maryland rules do not have a specific mechanism that parties can use to gain entry upon the land of another to inspect potential evidence. Without such a mechanism, parties can effectively be denied the right of access to the courts.

An equitable bill of discovery is (you guessed it) a equitable remedy that has been used for hundreds of years. The problem is that the Plaintiff was not seeking the bill of discovery against the defendant in his lead paint case;  he was seeking it against a third party. All of the Maryland authority that he cited provided a means to gain a right of access to the opposing party, not a third party.  This scuppered a lot of what he had in his brief. Still, the court recognized that he intended to seek a pure “equitable bill of discovery,” which is traditionally used against non-parties.

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facebookSocial media is great. It’s an excellent way to maintain contact with old friends.  It’s an excellent place to get news before any TV station gets it.   You can even follow Miller & Zois on Facebook.

But it is a scary new world.  How many times have you heard about someone getting fired or disciplined because of an ill-advised post or comment? How many politicians have resigned because they thought it was a good idea to send a “private” message to a intern?  How many people have been arrested from a tip found on social media?

Facebook and other forms of social media can also spell trouble for lawyers, too.  In New Jersey, two attorneys were recently sanctioned for sending a Facebook friend request to another party.

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Instead of discussing various torts that could be committed against Raul Ibañez, a man I will now irrationally detest for the rest of my adult life, let’s talk today about witness statements and whether they are discoverable. There was an interesting opinion in a California wrongful death case this summer, that I’ve been meaning to blog about for a while now, about whether recorded statements are discoverable.

This case – Coito v. California – comes to us on facts that are beyond tragic. A 13-year-old boy drowned in the Tuolumne River in Modesto, California. His mother filed a wrongful death lawsuit against a number of defendants, including the State of California.

There were six witnesses, all boys with the young boy who died. There was lots of talk in the air that all were in the process of committing crimes. Obviously, the defendants found this of interest. Defendants were able to get recorded statements from some of the kids. When the kids were deposed, the defendants used the witness2recorded statement to hold one of the kid’s feet to the fire on their prior statements.

But, being defendants, they did not want to turn over the recorded statements to the plaintiff, citing the work product privilege. Motions ensued. The trial court denied plaintiff’s motion to get the statements, but did order defendants to produce the recording used at the deposition. Continue reading →

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Forbes, via Overlawyered, has an interesting article on Houston lawyer, Steve Susman’s efforts to covert lawyers on both sides of the aisle to try more jury trials… and make cases easier to try. How? Buy reaching stipulations on all of the dumb things lawyers argue about. .

Great idea that will never work in vehicle accident or med mal cases in Maryland. Why? Rule #1 of being an insurance defense lawyer for both in-house and outside counsel is don’t screw up by doing something outside of the box. For example, one suggestion Susman makes is to agree in advance not to depose each other’s experts. After a large verdict, every insurance company starts doing a CSI forensics witch-hunt. “You did not depose the trialplaintiffs’ experts. Why? Did you get permission for Jonathan P. Paperpusher for that decision?” Insurance companies are not promoting (in-house lawyers for car insurance companies) or doling out work to lawyers (outside counsel) who take outside-the-box risks that could backfire. Insurance companies give out a lot of love to singles hitters, but far less to home run hitters who occasionally strike out. Continue reading →

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I read four personal injury related appellate opinions that were published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it is never going to work. I think federal law prohibits additur in federal court jury awards.
Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but increased the plaintiff’s damages, finding that the trial court failed to award enough damages.shutterstock_114060499

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could be the result of compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool, of course, but none of the major table saw manufacturers bought the invention.

Plaintiff’s theory as to why? Basically an Oliver Stoneian conspiracy theory that the manufacturers’ failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that is what happened. The messenger is a bit suspect, too: the guy who failed to sell table saw manufacturers on his technology. Continue reading →

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The Maryland Court of Appeals tackled a piece of one of the new vexing issues our courts face: dealing with social media. Most of the legal opinions circulating around involve discovery of social media such as Facebook and Twitter in civil cases. The court’s opinion in Griffin v. State deals with a different issue: determining the appropriate way to authenticate at trial electronically stored information printed from a social networking site. This is a Cecil County criminal case but the same logic would apply to a civil case so it is a case personal injury lawyers really should read.

In this Cecil County case, Defendant’s girlfriend apparently had a My Space name of “Sistasouljah” who put an entry on her page that read: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”. Without shutterstock_266349191going into the details of the case, it suffices to say that this did not reflect well on the Defendant’s case.

For reasons that are unclear, the prosecutor did not try to authenticate this social media entry through the Defendant’s girlfriend although she did testify. Instead, they tried to use a police officer who, on the stand, put two and two together.

A divided Maryland Court of Appeals disagreed that the officer can authenticate a social media posting because the identity of who generated the profile is unknown. In other words, the court’s problem is that just because I put up a Facebook profile claiming I’m Charlie Sheen, it does not mean that I’m Charlie Sheen.

Judge Harrell appreciated the concern of the technical “heebie-jeebies” (yeah, he used that phrase and defined it by footnote) but believes that you can add two and two together under these facts because the heebie-jeebie concerns go to the weight to be given the evidence by the trier of fact. If the post was not the girlfriend’s post, the Defendant should feel free to argue that, in Judge Harrell’s opinion.

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Last week, the Maryland Court of Special Appeals decided Logan v. LSP Marketing, a lead paint case in Baltimore City.

In this case, Plaintiff did not answer discovery. Defense lawyers, who I believe were the Leder Law Group in D.C., filed a motion to compel. In what is regrettably a common practice in Maryland, the motion to compel got Plaintiff to answer the discovery and their response was “hey, this is moot, we answered now.” expertDefendant’s counsel, to their credit, wrote a reply saying the answers were insufficient in part because Plaintiff wrote garden variety broad designations of experts. The motion was granted but a more detailed expert designation never came.

So before trial, Defendant sought to strike the experts. Baltimore City Judge Kaye A. Allison struck Plaintiff’s experts from testifying at trial. When the case went to trial, Judge John P. Miller denied the motion to reconsider Judge Allison’s motion. Which left Plaintiff with no case and Judge Miller granted Defendant’s motion for summary judgment. Continue reading →

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The Drug and Device Law Blog writes a good post on a recent Facebook discovery opinion, arguing in favor of making Facebook posts, ostensibly intended only for your “friends”, discoverable:

    We might have responded: C’mon, Dude, everyone knows that what you tell or write your friends may come out some day. You knew that when your best bro told everybody about that problem in your nether regions. And when your teacher intercepted the note you passed in class, you never would have thought to object on privilege grounds before she read it to the class. Nor could you do anything when the cops squeezed your roommate and he told them where you said your stash was. So why should what you tell your friends in Facebook posts be protected from disclosure when what you tell your friends in other ways is not?

First, I wonder if the Drug and Device Law Blog is suggesting discovery should just be produced or reviewed in camera by the court. The blog has argued forcefully for liberal designation of confidentiality for discovery documents. But Facebook posts that could cause embarrassment and humiliation and be used completely out of context? Let’s all look at those. We should be sensitive to huge multinational drug companies but let’s just rifle through the little man’s private life. Somewhere, Michele Bachmann is smiling and she does not know why.

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After a car accident, police do an investigation, talk to the witnesses, and file a police report. Although the police report is generally inadmissible at trial in Maryland, the facts contained in the report and the conclusion of the police officer as to who was at fault colors – sometimes permanently -how the insurance companies view the merits of accident claims.

In serious injury accident cases, often there are parties to the accident who are unable to talk to police because they are tending to their injuries. Obviously, this problem is even more pronounced in wrongful death accident cases.

I recently received a call from a potential client who forwarded to me the police report in this case that showed that she was undeniably the cause of the accident. The problem was that as a matter of physics and given the property damage, the accident could not have happened as the police report suggested. What did the woman who was listed at-fault tell the police after the accident? Nothing. She was airlifted to shock trauma. So the police officer listened to the driver that was there, accepted his story and then filed his police report listing the woman as the at-fault driver.

The big lesson here for accident lawyers is to take the police report’s findings with a grain of salt. If you have a serious injury case, do your own investigation of the accident as opposed to making a decision on the case by looking at the police report.

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In addition to Kearney v. Berger, there was another interesting opinion that came down from Maryland’s appellate courts yesterday. The Maryland Court of Special Appeals ruled on an interesting discovery issue in a landlord-tenant case that has implications for Maryland personal injury lawyers.

The underlying case is a dispute between Checkers – I’m assuming it is the fast food chain Checkers we are talking about – and its landlord. Checkers claimed it exercised an option to extend its lease. The case involved an estoppel certificate and a bunch of other things that I did not fully understand. Checkers sought documents from Gallagher Evelius & Jones (GEJ), a Baltimore law firm that represented the landlord. GEJ claimed a bunch of exceptions to the attorney-client privilege that were quite interesting. But the trial court never got to the merits of the argument because GEJ did not present its opposition to the motion to compel in the proper “set-up format.”
At first, I did a double take when I saw proper “set-up format.” There is a proper set-up format? But without knowing it, I think everyone here does file their motions to compel in what the trial court saw as the proper set up format: setting up the controversy in the pleadings with the request, the response to the request, and the argument so the court is not required to flip back and forth between documents. I never thought it was a requirement and I’m still not sure that it is. But it seems like a good idea to avoid further annoying the trial court – usually rightfully so – that you have already annoyed with a discovery dispute in the first place.

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