Day on Torts

The Maine Supreme Court has ruled that the Roman Catholic Bishop of Portland cannot assert the First Amendment as a defense to a claim of negligently supervising a pedophile priest.

The Court reviewed the First Amendment law on point and noted that “[t]he Diocese has not asserted that it actually holds to ecclesiastical doctrines concerning sin, penance, forgiveness and redemption that would have prevented or restricted the Bishop from intervening after learning that Melville might be sexually abusing boys, or from otherwise reporting this information to the police or the members of the parish.”

The Cour had this to say about the assertion of the Diocese that “‘the intrinsic logic of any judicial declaration and administration of a standard of care for church oversight of clergy necessarily will involve the [c]ourt deeply in matters of theology and governance:’ We do not accept this logic. It is not self-evident in this case that the application of a duty of due care will cause the Superior Court ‘to probe deeply . . . into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity]’ in violation of either the First Amendment or Article I, section 3 of the Maine Constitution.” (citations omitted). Read the opinion here.

Seventeen veterans won judgments against Iraq for being tortured during the first Gulf War. The Bush Administration has filed a brief opposing the right of the veterans to collect these judgments. This post by Dave Lindorff has an interesting take on why the Administration would not be supporting our veterans. I don’t agree with all the statements in this post but I do think that one reason the Bush Administration has taken this anti-veteran position is because it wants to avoid similar suits by Iraqis and the prisioners in Guantanamo Bay.

Bush Torture Tort Reform: Don’t Sue, Don’t Be Sued

Back when the Bush administration filed a brief in federal court opposing the decision to award almost a billion dollars in damages to 17 Americans who had been captured and tortured by Saddam Hussein’s government during the Gulf War, it appeared to be a strange move.

The Court of Appeals just handed down a new decision that addresses the circumstances under which one may pierce the corporate veil. The case is Boyles v. National Development Company; read the opinon here.

The court affirmed the imputation of liability through the corporation to the person who set it up and ran it. In doing so, the Court re-afffirmed the application of the Allen test. The Allen test says this:

“Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.”

How many times have you seen this discovery response: “Objection; this request for production of documents is vague, ambigious, oppressive, unduly burdensome, seeks information not reasonably calculated to lead to the discovery of admissible evidence, and seeks the discovery of material protected by the attorney client privilege, the work product doctrine, and the Magna Carter. Notwithstanding this objection and without waiving the same, a paralegal intern with 20/400 vision and no knowledge of the facts of this case or the law has gone to a warehouse (with a non-fat latte in hand), stared in the general direction of scores of unmarked boxes containing unknown documents and has determined that there probably isn’t anything in any of those boxes that you want. We promise. If you file a motion to compel and ever get an order to look at these documents, you can go to our warehouse in Burning Stump, Georgia between the hours of 12:00 Noon and 3:00 p.m. on any Friday, Saturday or Sunday in July for a inspection. As a professional courtesy you are advised that there is no air conditioning in this warehouse and the closest photocopier is 23 miles away.”

Well, maybe you haven’t got that objection. But you have seen lots of objections to discovery, including those that did not attach a privilege log. One federal appellate court has ruled that, under the facts of that case, the failure to produce a privilege log was a waiver of the objection.

The case is Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 2005 WL 730193 (9th Cir. 2005). Read the decision here.