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Archive for June, 2013

Georgia Court of Appeals Decides Rare Case on Electronic Discovery

Posted on: June 27th, 2013

By: Bart Gary

On June 18, 2013, the Georgia Court of Appeals decided a case involving electronic discovery.  In a business dispute, and in response to about 100 unique requests for production of documents from the plaintiff, defendants scanned all paper documents in their files in the form and order in which they were keep in the file cabinets; and extracted electronic documents from hard drives and messages from the email accounts.  The documents “were processed into images” and Bates-stamped in the order they were found.  The defendants then produced the about 156,000 pages of documents in digital format.  In response to plaintiff’s motion to compel, the trial court order the defendants “to designate by Bates-stamp number each document responsive to each request for production served on each defendant.”  It rejected the defendants’ argument that it satisfied the discovery rules by having produced documents as they were kept in the ordinary course of business.  The Court of Appeals refused to disturb the trial court’s discretion and affirmed the order. The decision imposes a substantial burden upon the defendants in document-intensive cases. Ordinarily it is sufficient for a party to produce documents in the form and manner in which they are and were maintained.    The Court of Appeals also affirmed the trial court’s sanctions, plaintiff’s attorney’s fees, imposed on defendants for failing to act in good faith in designating documents “highly confidential,” that did not meet the criteria of the protective order.  Eighty percent (80%) of the documents produced were so designated.


Waivers In Arbitration Agreements (Again)

Posted on: June 25th, 2013

By: Marty Heller


As initially reported here, the Supreme Court heard arguments in February regarding the enforcement of a class action waiver in arbitration agreements.  The plaintiffs in this case argued that the class action waiver should be struck, in part, because of the extraordinary cost associated with attempting to bring an individual antitrust action against American Express.  Last week, the Supreme Court ruled that the Federal Arbitration Act mandates that arbitration agreements shall be “rigorously enforced” based upon the language in the agreement, and this mandate is not affected by the fact that it may expensive to bring an individual claim.  In sum, the Supreme Court again has upheld the enforceability of class action waivers in arbitration agreements.  This continues to be the case, regardless of the fact that it may not be economically feasible to bring a claim as an individual as opposed to a class.  In the world of wage and hour claims, this is a big win for employers, reinforcing the Supreme Court’s view that class action waivers are enforceable in most situations, which should apply equally to FLSA collective actions.  A copy of the opinion, authored by Justice Scalia, is available here.

You May Not Have The “Right to Remain Silent”

Posted on: June 20th, 2013

By: Sun Choy

Everyone who watches police dramas knows about the “right to remain silent.”  Under the famous right, the police cannot use a defendant’s statement in a prosecution unless it can be shown that the defendant was first informed of his rights, including the right to remain silent, and that a waiver was obtained.  The Supreme Court has recognized these so-called Miranda rights since 1966.   This week, the Supreme Court limited the “right to remain silent” in Salinas v. Texas.

In Salinas, Genovevo Salinas agreed to speak to police as part of a murder investigation.  Salinas answered a lot of questions, but fell silent when asked whether the shells from his shotgun would match the shells recovered at the murder scene.  At the criminal trial, the prosecutor argued that Salinas was guilty based, in part, on his silence.  The police were not required to inform Salinas of his Miranda rights, because he was not in custody at the time of the questioning.  In other words, Miranda rights would have applied only if Salinas had been arrested.  Accordingly, the Supreme Court had to decide whether the government was allowed to use the defendant’s pre-arrest silence against him at trial.

In a 5-4 decision, with the majority dividing 3-2, the controlling plurality (Chief Justice Roberts, Justice Alito, and Justice Kennedy) concluded that Salinas’s constitutional rights were not violated because he had agreed to the questioning.  Under these circumstances, Salinas did not have a right to remain silent, unless he affirmatively asserted that right in response to the question about the shotgun shells.  The two remaining members of the majority (Justices Thomas and Scalia) would have gone further and overruled a prior decision that first prohibited adverse inferences from a defendant’s silence.

Like many of the Supreme Court’s decisions, the practical implications of Salinas remain to be seen.  For now, Salinas provides police and prosecutors with the ability to use pre-arrest silence against the defendant in a subsequent prosecution.

Fourth Circuit Voids NLRB Posting Rule

Posted on: June 18th, 2013

By: Anthony Del Rio

Last week the Fourth U.S. Circuit Court of Appeals struck down the National Labor Relation Board’s (NLRB) 2011 poster rule.  The rule required employers to post information regarding employees’ rights to organize under the National Labor Relations Act (NLRA).  The Fourth Circuit is the second appeals court to strike down the rule, the D.C. Circuit having done so a month prior.

The poster language crafted by the NLRB stated that employees had the right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions. Employers who did not post the notice would have been found to have committed an unfair labor practice.

The D.C. Circuit rejected the rule based on First Amendment grounds, but the Fourth Circuit did not find it necessary to reach the constitutional challenge.  The Fourth Circuit disagreed with the NLRB’s proactive rulemaking (historically, it has only been the NLRB’s responsibility to react to NLRA violations, not to proactively prevent them). The Fourth Circuit held that the NLRB had exceeded their legal authority because the National Labor Relations Act did not charge the NLRB with notifying employees of their rights.

A National “Safe Harbor” to Reduce the Cost of Defensive Medicine?

Posted on: June 18th, 2013

By: Michael Eshman 

The Center for American Progress recently proposed a “safe harbor” in medical malpractice litigation to reduce the cost of defensive medicine.  The essential component of the “safe harbor” plan is the creation of clinical-practice guidelines on a national level, ideally through physician organizations – such as the American College of Obstetrics and Gynecologists.  Under this system, the national guidelines would be presumed to establish the legal standard of care and create a “safe harbor” from medical malpractice for physicians who can show that they followed the guidelines.  The idea being that, with national guidelines that establish the presumptive legal standard of care, physicians hoping to avoid suit will follow the national guidelines rather than practicing defensive medicine – the ordering of excessive and unnecessary medical tests, procedures, or further consultations.

Though the proposal cites an Oregon study that estimated the implementation of a “safe harbor” could save 5% in medical liability costs in Oregon and could resolve 10% of claims more quickly, the value of a national “safe harbor” as a means of reducing the cost of medical malpractice liability is unclear.  A claimant could still support a medical malpractice claim with evidence that the guidelines are not applicable to the specific situation or that a physician did not actually follow the guidelines.

Other proposals to reduce the cost of medical malpractice liability include capping the amount of damages that may be awarded in medical malpractice suits, which has been found unconstitutional in Georgia, and the adoption of the worker’s compensation model for medical malpractice claims.  Either the capping of damages or the adoption of a worker’s compensation model would likely go further in reducing medical malpractice liability costs for medical providers.  However, both methods raise significant legal and constitutional questions.

What are your thoughts on the Center for American Progress proposal and other possible methods of reducing the cost of medical malpractice claims and reducing the cost of defensive medicine?