Appellate Law & Practice

9th Circuit issues a discovery opinion

Burlington Northern & Santa Fe R.R. Co. v U.S. District Court is a rare published denial of a petition for a writ of mandamus on a discovery issue.  In denying the petition, the court held that while general boilerplate objections inserted in a document request response do not adequately preserve the privilege, failure to provide a privilege log with the FRCP 34 30-day period may or may not amount to a waiver, depending on the following factors:

"the relative specificity of the objection or assertion of privilege (where providing particulars typically contained in a privilege

log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard. These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process. They should not be applied as a mechanistic determination of whether the information is provided in a particular format."

This little case could be very important in streamlining discovery, if the federal courts faithfully apply the above-noted test.  For example, in California, the Code of Civil Procedure contains a provision, which also requires very specific objections, yet, time and again, attorneys assert those boiler-plate objections and discovery judges / referees do not penalize them enough.

CA11 testing my fortitude as a law blogger

The Eleventh Circuit must be having an intra-court conspiracy to test my commitment to this enterprise -- one decision today on bankruptcy procedure, one on tax procedure. I will analyze them after dinner and some beers. Your life will be fine without these summaries for a few hours at least.

LATER: OK. Here we go.

In In re Banco Latino Int'l, the Banco was the debtor in bankruptcy. It filed civil claims against the appellants here, former directors. Appellants won summary judgment. So, having won on the merits, the former director-Appellants sought indemnification for the costs of their defense, which they would have been entitled to under the Banco's bylaws. But the Court of Appeals -- affirming the District Court, which had reversed the Bankrupty Court -- says, "sorry, you lose, because you should have filed a claim for such indemification before the bar date, and you didn't, and you haven't shown excusable neglect. Too bad for you."

In Fla. Country Clubs v. Comm'r, there was a dispute between the taxpayer and the IRS, which ultimately got resolved without litigation (though the IRS had initially sought more $, it ended up giving the taxpayer a refund!). Annoyed, the taxpayer filed suit in Tax Court seeking "administrative costs" incurred in the dispute, which I suppose means atty fees but I really can't say. The holding: because the IRS never actually issued a "notice of deficiency," or a "notice of decision" from the office of appeals, the IRS didn't take a "position" within the meaning of the relevant statute, so such an award is unavailable as a matter of law. Neither a "30-day letter," whatever that is, nor a proposed notice of deficiency, counts as a "position" that might trigger the award of such costs.

CA5 sentencing- nexus between flight and crime

U.S. v.  Southerland is a DeMoss opinion in an appeal of a sentence. In sentencing Southerland for bank robbery, the trial court increased the penalty by two levels due to flight that recklessly endangered others. The flight occurred at some time after the robbery; Southerland was in a stolen car that obtained drugs. The question was whether there was a nexus between the crime of conviction and the flight; this was determined by Southerland’s state of mind as evidenced by the circumstances. The Fifth Circuit reversed, holding that there was insufficient nexus between the flight and the crime. There was also a temporal problem because the flight was two months after the crime. This allowed the court to decline to reach a Booker issue raised for the first time on appeal.

CA1: The courts can decide that the PLO is not entitled to sovereign immunity, and by the way, it is not.

Ungar v. PLO, No. 04-2079.  This case involves a terrorist attack in Israel.  The victims sued the PLO and the PA in the District Court under the Anti-Terrorism Act (ATA), 18 U.S.C. §§ 2331-2338, which refused to dismiss the case.  The District Court found, that Rhode Island choice-of-law principles favored the application of Israeli law.  Initially the PLO claimed a host of sovereign-immunity-type defenses, but later changed their position to assert more substantive claims.    They lost.

CA1: NH malpractice and representing debtor clients

In re R & R Associates of Hampton, No. 04-1610, reverses a bank a “...bankruptcy court ruling that counsel who previously had served as chapter 11 counsel to R&R, notwithstanding a disqualifying conflict of interest, nonetheless were not liable in damages, either for malpractice or breach of fiduciary duty”

9th Circuit roundup for 3/30

Yesterday, there was a busy all day on all fronts (U.S. Supreme, 9th Circuit, and Cal. appellate courts), plus I am trying to finish a motion for summary judgment, so I am struggling for time.  However, some of the 9th Circuit decisions yesterday were so interesting, I could not resist.

Grisham v. Phillip Morris - 9th Circuit certified the following questions to the Cal. Supreme Court.  One - Under Cal. law, can a plaintiff overcome the presumed awareness that he or she knows that smoking causes addiction and other health problems, and so show justifiable reliance on defendant's advertisment and promotional complaints for cigarretes?  Two - in an action seeking damages from an addiction to tobacco, does not an action for personal injury accrue when the plaintiff recognizes that he or she is addicted to tobacco, if the plaintiff has not yet been diagnosed with an injury stemming from tobacco use? 

Taylor v. Westley- 9th Circuit held that the plaintiff's lawsuit against the State of California, which sought to recover stock the state improperly deemed escheated and re-sold, was not barred by the 11th Amendment. The court reasoned that since the $$ the State holds in this case is private money, not state money, 11th Amendment immunity does not apply. 

CA2 News

The AP is reporting that President Bush will nominate Michael J. Garcia, the Assistant Secretary for Immigration and Customs Enforcement in the Homeland Security Department, as the new United States Attorney for the Southern District of New York.  Garcia, who served as an Assistant in the SDNY for almost ten years, will replace David N. Kelly, a democrat.  (Kelly was named U.S. Attorney when James B. Comey was elevated to Deputy Attorney General; I believe that he has been acting on an interim basis since his appointment by then-Attorney General Ashcroft in December 2003).

CA5 jury trial & defaulted recusal issues

Becker v. Tidewater, Inc. is a Clement opinion in an interlocutory appeal on two issues involving injuries aboard the rig M/V Republic Tide. The plaintiff asserted Jones Act, Longshore Harbor Workers Compensation Act, and negligence claims. In a prior appeal, the Fifth Circuit had ruled the plaintiff not a seaman and therefore that he had no Jones Act claim. On remand on the other two claims, the plaintiff asked for a bench trial. This was granted and a defendant made an interlocutory appeal. The Fifth Circuit held that the plaintiff had invoked admiralty jurisdiction, and the defendant therefore had no right to a jury trial, regardless of the fact that the plaintiff could also have invoked diversity jurisdiction.

The second issue involved recusal. When it was not clear there would be a bench trial, the trial judge had presided at a mediation where he learned substantial information about the parties’ financial positions. The Fifth Circuit stated that under those circumstances, the judge should have recused himself, but that the defendant had not raised the issue properly below or on appeal and so the court had no power to review that issue.

CA5 ERISA administrative review and denial notices

Lacy v. Fulbright & Jaworkski LLP is an appeal from a grant of summary judgment for the defendants in a suit over an ERISA medical claim denial.  The employer and plan obtained a summary judgment based on the employee's failure to exhaust administrative review rights; after she got a notice of denial, she had failed to make a timely administrative appeal.  Her response was that the notice was defective and therefore did not  begin the running of the appeal time.  Without explaining how the notice was not in "strict compliance," the court held that a notice that substantially complies with statutory and regulatory notice requirements would suffice.  The summary judgment was affirmed.

CA2 (3.30.05)

The court today held, as a matter of first impression, that a prevailing plaintiff may recover expert fees as part of her "costs," under the Individuals with Disabilities Education Act.  An application for expert's or consultant's fees should be accompanied by contemporaneously created time records, however.  (Murphy v. Arlington Central School District Board of Education).

Quotation of note:  "While we appreciate – and in practice honor, wherever possible – the virtues of relying solely on statutory text, at times text without context can lead to results that Congress did not intend. In our view, although "costs" is a term of art that generally does not include expert fees in civil rights fee-shifting statutes, we believe that Supreme Court precedent, the legislative history of the IDEA upon which the Supreme Court relied in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), abrogated by statute, 42 U.S.C. § 1988(c), and Congressional action in the aftermath of the Supreme Court’s ruling in Casey, require us here to find that Congress intended to and did authorize the reimbursement of expert fees in IDEA actions. . . .  To those who would question our resort to legislative history, we observe that it was Justice Scalia, a noted skeptic of the use of legislative history, who authored Casey’s dicta about the apparent effort by Congress to depart from the ordinary meaning of the term "costs" in the IDEA. See generally, Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)."