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Archive for July, 2009

Privileged Documents Sent to Expert Not Waived?

Tuesday, July 28th, 2009

Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again.  Is it waiver?  Will the jury see it?

In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts),  the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal.  In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.

The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B).  Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).

The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.

Can You Post a Video Deposition on YouTube?

Monday, July 20th, 2009

The Internet has invigorated questions about depositions which has laid fairly dormant for years: who “owns” a deposition video or transcript?  Is it public record?

Ever considered posting a video deposition on YouTube?  Is that allowed?  A quick search suggests there’s more than two thousand video depos on YouTube.

We’re not impressed that these questions have been squarely answered but the Merrill Corporation has done a fairly tidy job summarizing the issue in their essay, “Is that Me on YouTube?  Ground Rules for Access, Use and Sharing of Digital Depositions.”

We won’t summarize Merrill’s work but add these thoughts:

1.  The Court likely does not “own” the deposition transcript/video but clearly has control over it.

2.  Filing the transcript/video in the court file makes it public record.  Filing it before using it elsewhere seems like a threshold step to avoid lengthy questions as to what is or is not public record.

3.  I’m not impressed with the idea the court reporter owns the transcript.  Again, there is little to no law on point but I think the requesting attorney hired the reporter for a job and gets the benefit of the work product.  I also mention that, under FRCP 30(f)(3), the reporter can be ordered who can get a copy.   That suggests the reporter plainly doesn’t own the transcript free and clear.

4.  The question of the right to distribute seems to come down to (a) is it filed with the court, (b) is there a danger of impairing law enforcement or judicial efficiency, (c) privacy interest of those resisting disclosure, and (d) nature/degree of injury to party if information is released.  Here in Florida, there is a trend towards more open invasive discovery and clamping down on the distribution of public record information seems counterculture to Florida legal theories and trends.

5.  Merrill notes some interesting potential privacy violations if the transcript includes HIPAA, drug, alcohol or mental health treatment.

6.  Merrill also casts a shadow over the practice of sharing expert deposition transcripts (for the reasons in #5) but cites no case or instance where that ultimately became a legal issue.

7.  Suggestions?  File the video or transcript with the court and, if you’re going to distribute on YouTube or elsewhere, consider distributing edited snipets.

Tivo Buys Bull, Wins Case..?

Wednesday, July 8th, 2009

Imagine trying a $100+ million dollar case in a small town.  Would it be appropriate for lawyers involved in such a case to try and win some goodwill in the community for their client before that case?  Or are we simply tying together two wholly separate incidents?

Apparently Marshall, a town in east Texas, is a hotbed of infringement lawsuits.  TiVo, the DVR-provided, sued Dish Network there and reportedly bought a local girl’s champion bull before a competition.  The bull won and the lawyers gave the girl the money.  Sites like TechDirt, RapidTV News, and The Prior Art covered the story.

We’ve mentioned before the practice of a law firm editing their own website right before a trial to make them appear more experienced or focused on the subject matter of the lawsuit.  This isn’t necessarily contact with potential jurors (who aren’t supposed to be researching anyhow) but does make sense if the case gets media attention.  Buying livestock seems like an interesting notion too…

When Must a Plaintiff Elect Remedies in a Nursing Home Suit Under Florida Statute 400.023(1)?

Thursday, July 2nd, 2009

Good question, as the Second DCA provided nominal guidance in Estate of Trollinger v. Mariner Health Care, Inc. (MHC) d/b/a East Bay Nursing Center et al. While the Panel (Fulmer, Kelly and Altenbernd) affirmed the trial court’s dismissal of the complaint, a clear rule fails to emerge.

During the course of tort reform to Chapter 400, the Nursing Home Resident’s Rights Act, section 400.023(1) was inserted which required the plaintiff to elect either survival damages or wrongful death damages.  As the Panel properly lamented, the statute fails to say when the election shall occur.  In this case, the trial court dismissed the action at the pleading stage and the plaintiff was called upon to amend the complaint, choosing their damages.  Rather than doing so, they appealed.

The Panel held that this was not an issue for certiorari relief since the plaintiff could not demonstate irreparable harm if the case proceeded.

In a concurring opinion twice as long as the main opinion, Judge Altenbernd wrote that the statute requires an election of damages, not an election of causes of action, and suggested there was little reason that the election needed to be made prior to the jury returning a verdict on both claims.  Nonetheless, the Judge acknowledged that election of remedies was a complex theory, leaving the door open to varying arguments and analysis which was not provided in the opinion.

How Should A Judge Instruct A Jury Not to Text, Twitter or Google?

Wednesday, July 1st, 2009

Look no further than our brethren in Michigan, who hustled out a June 30, 2009 order providing the anti-Twittering jury instruction for trial judges.  The rule goes into effect in September.

No, it may not be required here in Florida yet, but isn’t it a good idea?  Why not offer to the judge for your next trial?

Would the other side actually disagree?

The rule is here.  The Detroit Free Press article is here.

Florida’s New Seatbelt Law Goes Into Effect June 30

Wednesday, July 1st, 2009

Florida passed a law, effective June  30, that police can pull over and cite a driver for not wearing a seatbelt.  Under the just expired old law, police needed another basis for the stop.  Violators are looking at a $30 fine.

Most vocal safety and consumer groups laud the passage of the law which brings Florida in line with the slight majority of states which have similar laws (29 of 50 states).  According to that News-Press article, 4 out of 5 Florida drivers already use the seaatbelt, although its a few percentage points below the national average.  A local personal injury lawyer gave some pretty clear coverage of the law, here.

Downsides to the law?  There is some concern that the motivation is revenue-generation (easier traffic tickets) rather than safety.  Likewise, there is also some civil rights concerns that this is simply a pretext to pull over someone.  Others might suggest this is further degradation of personal liberties.  That said, a Google search on the new law failed to find anyone who articulately raised a thoughtful dissent to the law; instead, opponents tend to rant, like you find in the commenters to this Miami Herald piece.

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