Articles Posted in Miscellaneous

Employee Froman died in an on-the-job accident.  Darling, one of the owners of the employer, threw away the equipment involved in the accident after being asked by an Indiana OSHA employee to keep it for inspection.

Froman’s estate filed suit against the employer; the suit included claims for negligent and intentional spoliation of evidence.  The trial court refused to dismiss the claims for spoliation,  the Court of Appeals affirmed, and the interlocutory appeal accepted by the Indiana Supreme Court.

The ISC reversed.   It first noted that Indiana does not recognize an independent cause of action for spoliation against a party to the underlying claim (first-party spoliation) but had expressly left open the question of whether it would recognize an independent cause of action for third-party spoliation.  (This sent a pretty strong signal about what was to happen next.)

The Supreme Court of Connecticut recently determined that a cause of action exists for intentional spoliation of evidence.

Plaintiff was hurt in a ladder incident (it collapsed), filed suit, and repeated asked the defendant to preserve the ladder and requested the opportunity to inspect it.  Defendant’s expert examined the ladder, found it not to be defective, and then destroyed it.  Plaintiff amended his complaint to allege intentional spoliation of evidence as an independent tort.

The Court said that "[d]estroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence
or to develop other evidence, which may be less accessible, less persuasive, or both."  The Court concluded that  "the existing nontort remedies are insufficient to compensate victims of spoliation and to deter future spoliation when a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case. We therefore conclude that the recognition of an independent cause of action for spoliation of evidence is necessary to fulfill the  public policy goals of the tort compensation system."

Some of you will recall that a couple of years ago former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I started "Justice Programs."   For the third consecutive year Justice Programs is offering a 15 hour seminar program in Memphis, Knoxville, Chattanooga and Nashville that is designed for civil trial practitioners.

I will be speaking for three hours on tort and comparative fault issues, and hour and fifteen minutes about developments in tort law around the nation, and one hour about developments in the law of civil procedure.  Penny and Joe will bring attendees up to date on USSC cases,  evidence, and other significant cases outside the field of torts, civil procedure and evidence.   There will be a one and one-half hour discussion entitled "Witnesses – A to Z" and Penny and Joe will offer three hours of ethics and professional credit.  (The E & P hours will be offered continuously on Friday afternoon for those who want to attend only that portion of the program.)

Here is our schedule:

Plaintiff filed a wrongful discharge and whistle-blower suit against his employer.  The employer sent him a letter advising him to preserve all data on his company-issued laptop (which Plaintiff retained in his position for a period of time after the litigation began).  Plaintiff destroyed 2200 personal files of data before returning the data to his employer.

The company sought sanctions, including dismissal of the case.  The district court dismissed the case and imposed monetary sanctions of $65,000.

The Ninth Circuit Court of Appeals affirmed,  finding that the district court did not abuse its discretion in finding that the destruction of the files was in bad faith, caused prejudice to the defendant, and that a lesser sanction would not be appropriate.   The fee award was also affirmed.

How can a Rule 10 opinion be noteworthy?  Those of you who have no life other than the law know that a Rule 10 opinion is one that "shall not be published, and shall not be cited or relied on for any reason in any unrelated case."  So why discuss it in any forum?

Because one has been released, and they are rare.  You see, our appellate judges have been reluctant to use this rule because they are afraid that some members of the Bar will be upset that their case did not get a full-blown opinion.  So, the judges put in the extra time to write an opinion that the vast majority of lawyers would agree is unnecessary given the issues involved.  Time spent on such opinions takes away time that would be better spent on more complex matters.

We need to trust our appellate judges to make informed decisions about whether a case deserves a full-blown opinion.  As lawyers, we know that some cases do not deserve such an opinion and, if they do not, then we need to support the judges on the appellate court when they decide to do one.  The current workload of the judges on the civil court of appeals requires them to write about 1.5 opinions a week, 52 weeks a year.  True, they have clerks to assist them, but it still is a significant workload. There is no reason why the workload should not be reduced through the judicious use of Rule 10 opinions.

On June 21, 2006 I wrote a post about the status of prejudgment interest in Tennessee.

The recent case featured in that post was Francois v. Willis, No. M2005-01263-COA-R3-CV (June 6, 2006).  The Tennessee Supreme Court has denied the plaintiff’s Rule 11 Application in the case.

So, is prejudgment interest in personal injury  and wrongful death cases now ""morally, ethic’lly, spiritually, physically, positively, absolutely, undeniably and reliably dead?" 

This morning my wife and I leave on what I think is a well-deserved vacation.  I turn 50 years old on Thursday and my wonderful wife is taking me to the Canadian Rockies to celebrate.

One year ago she made booked a room for us at the Moraine Lake Lodge, a 33-room lodge 15 minutes outside of the Village of Lake Louise.  I have wanted to go the Canadian Rockies for years and am thrilled about the trip.

I am not taking my computer and am not going to use one in the hotel.  I am going to attempt to go 5 days without any communication from or to my office.  I haven’t done that for at least 6 years, maybe longer.

The only thing better than Notre Dame losing is Notre Dame losing at home.

Nancy Grace, who brings disgrace on herself and on her profession every time she appears on television, is embroiled in another controversy.   This time, it is the death of Melinda Duckett, an interviewee on Grace’s show who committed suicide.

Those of you who believe that Ms. Grace defines everything that is wrong  with talking-head "journalism" will be re-affirmed by this well-written article  by Dahlia Lithwick from Slate.  Some excerpts:

"Nancy Grace didn’t kill Melinda Duckett, but she is aiding and abetting the death of public confidence in the law. Grace dresses like a lawyer and talks like one, but the only thing she seems to feel for the court system is contempt."

Bruce Braley is running for Congress in Iowa.  His Republican opponent is a lawyer.

Bruce is the subject of this attack ad – a real cheap shot considering it comes from a Republican who had enough intellect to attend Harvard Law School.

I know Bruce – he is a good guy who deserves the help of lawyers across the Nation.  You can contribute to his race here.