Discovery

May 30, 2014

Spoliation of Evidence in Tennessee: Intent v. Prejudice

What is it with drillers and spoliation of evidence cases? First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject. And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc. So, let’s drill down on this issue a bit, shall we?

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire. On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling. During the refueling, Burress walked away to converse with some of the Griffith Drilling employees. Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited. When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off. The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle. Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle.

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire. One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage. Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site. Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim. The trial court granted both motions. Griffith Drilling appealed alleging the trial court erred by granting both motions.

February 10, 2014

Discovery of Information from Facebook Accounts in Personal Injury Cases

by The Law Offices of John Day, P.C.

A Florida appellate court has recently restricted largely unfettered discovery from the Facebook account of a personal injury plaintiff who was filing suit because of injuries to her minor son. She also asserted her own claim for loss of parental consortium.

Root v. Balfour Beatty Construction LLC, 2014 WL 444005 (Fl. D.C.A. 2nd Feb. 5, 2014) Defendant served written discovery that sought access to social media accounts. The appellate court quashed an order permitting extensive discovery and suggesting that in camera review may be necessary to protect the privacy rights of the plaintiff. The opinion cites several cases and a recent article about social media discovery.

October 4, 2012

Plaintiff’s Claim of Damages for Pain and Suffering Do Not Open Door to a Rule 35 Psychological Examination

by The Law Offices of John Day, P.C.

The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim.

In Lewis v. 8th Judicial District, OP 12-0401 (Mont. S. C. Sept. 11, 2012) Lewis brought a claim for damages arising after she hit by a car while crossing the street as a pedestrian. Lewis did not claim damages for any mental or psychological disorder or injury due to the accident, nor did she claim that a pre-existing mental condition was exacerbated by the accident or assert an independent tort claim for negligent infliction of emotional distress. Rather, she made only a general claim for "emotional pain, suffering and anxiety" associated with her physical injuries from the accident.

Lewis maintained that the motor vehicle/pedestrian accident is solely responsible for her current and continuing issues with pain. However, a physician who examined Lewis on behalf of State Farm questioned whether her chronic pain may be caused or exacerbated by her preexisting mental health issues.

March 20, 2012

Will I Go To Jail For Lying on Interrogatory Answers?

by The Law Offices of John Day, P.C.

I am in a lawsuit and had to answer interrogatories. I didn’t tell the truth about some things and the other side found out about it. Can I get sent to jail for not tellling the truth?

There is a risk of jail or a fine because interrogatories are answered under oath and lying under oath is perjury. However, I am unaware of any person actually having been jailed for not telling the truth in answers to interrogatories.

A more realistic risk is that the trial judge may sanction you (he or she would have the right to dismiss your case or, if you were sued, strike the answer in the case and enter judgment against you.) Lesser sanctions would include telling the jury what you did, awarding attorneys fees against you, and other penalties. Your mistake will also hurt your credibility with the judge and jury.

February 17, 2012

Connecticut Court Sets High Bar for Reversal After Proof of Discovery Misconduct

by The Law Offices of John Day, P.C.

What burden should be placed on a party seeking a new trial if the losing party discovers that the winning party engaged in deliberate discovery misconduct? In Duart v. Dep’t of Correction, No. 18476 (Conn. Jan. 24, 2012), the Connecticut Supreme Court said the movant must establish the following:

(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a reasonable probability that the result of the new trial will be different.

A‘ ‘reasonable probability’ ’’ means ‘‘’a probability sufficient to undermine confidence in the ‘outcome’’ or, in other words, that ‘’the favorable evidence could reasonably be taken to put the [whole case in such a different light as to undermine confidence in the verdict.’’" [Citations omitted.]

November 3, 2011

New York Court Limits Access to Facebook Data

by The Law Offices of John Day, P.C.

A New York Appellate Court has ruled in Patterson v. Turner Construction that a defendant in a personal injury case does not have an unfettered right to access the plaintiff’s Facebook account.

Instead, the defendant can seek only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The appellate court reversed a trial court order which "granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived."

October 24, 2011

Discovery of Confidential Settlement Agreements

by The Law Offices of John Day, P.C.

The Fourth District Court of Appeals for Florida has ruled that a non-settling defendant cannot obtain a court order forcing disclosure of confidential settlements between the plaintiff and settling defendants.

Plaintiffs were involved in an auto accident that was allegedly caused by tire failure. They sued the car manufacturer, the tire manufacturer, the car dealer, and Wal-Mart (the tire dealer and installer). Three of the defendants entered separate confidential settlement agreements after a mediation. Wal-Mart did not settle and sought discovery of the confidential settlement agreements. The trial court denied the request, saying that given the fact that joint and several liability had been abolished in Florida the settlement amounts were not relevant.

The Court of Appeals affirmed, saying

August 10, 2011

Can You Wing It At A Deposition?

by The Law Offices of John Day, P.C.

Evan Shaeffer wrote a book called Deposition Practice Tips. Certain excerpts from the book appear here.

I want to focus on Section 1.111, which Evan titled "Can You Wing It At A Deposition?"

Here, in bold print, is his work:

February 14, 2011

Mississippi Supreme Court Strikes Jury Verdict for Plaintiff Because of Failure to Supplement Expert Witness Disclosure

by The Law Offices of John Day, P.C.

Plaintiff’s accident reconstructionist (Webb) in an auto defect case was deposed about his proposed testimony. Thereafter, Webb signed an errata sheet that changed four of the variables he used to make his calculations. Among the changes were a change in the angle of the subject vehicle from 22 degrees to 44 degrees and an increase in the closing speed of the vehicle from 68 miles per hour to 78 miles per hour. He said these changes did not alter his ultimate conclusion on the change of velocity (delta-v) experienced by the vehicle occupants (35 miles per hour). The plaintiff did not supplement interrogatory responses concerning the expert’s testimony but simply sent the errata sheet to the defense.

The defense denied receiving the errata sheet. The defense expert testified that the delta-v was between 55 and 67 miles per hour. All parties agreed that a crash is not survivable with a delta-v in excess of 50 miles per hour.

At trial the expert said he completed the errata sheet because he realized after his deposition that he had made some mistakes in his analysis. He did not claim that the court reporter made an errors or that the changes were made to clarify his testimony.

September 21, 2010

Effective Use of Depositions at Trial

by The Law Offices of John Day, P.C.

Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.

An excerpt:

4. Tab the appropriate pages. Just like on the radio, you want to prevent the courtroom from filling with “dead air.” When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away. Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next. Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.