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Archive for August, 2020

California Supreme Court Ruling Provides Guidance on Assessing Subpoenas to get Social Media Evidence

Posted on: August 20th, 2020

By: Barry Miller

Litigators fight a continuing battle in trying to get social media evidence. When an opponent does not cooperate, the only option may be to subpoena that information directly from the owner of the social media platform. On August 13, the Supreme Court of California issued an opinion that may guide other courts considering whether to enforce such subpoenas.

In Facebook, Inc. v. Superior Court of San Diego County, a criminal defendant sought restricted posts and private messages from a user who may testify as a witness in his murder prosecution, and who also is an alleged victim of the defendant. A trial court denied a motion to quash the subpoena finding good cause for the subpoena.

After taking issue with the facts as stated by the defendant in his argument for getting the posts the Supreme Court remanded the case to the trial court, instructing it to reconsider its order by balancing seven factors:

  1. Did the defendant show “plausible justification” for getting the posts and messages?
  2. Does the subpoena describe the material sought adequately or is it overbroad?
  3. Is the material sought reasonably available from other sources?
  4. Would production violate a third party’s right of confidentiality or privacy, or invade a governmental interest?
  5. Is the request timely?
  6. Would the time required to produce the information delay the defendant’s trial, and if so, would the delay be unreasonable.
  7. Would production place an unreasonable burden on the platform?

The Supreme Court indicated that the first factor, plausible justification, was particularly relevant to the case at hand. It did not say that this factor—or any other factor among the seven—was entitled to more or less weight in all cases.

While this case arose in the context of criminal discovery, implicating the defendant’s Fifth and Sixth Amendment rights under the Constitution, the Court did not limit its holding to criminal cases.

The Court may not be done considering the issues in the context of this case. A concurring opinion from Chief Justice Cantil-Sakauye noted that both the defendant and prosecutor argued for a “business model theory” that would mean that Facebook is not governed by the federal Stored Communications Act. Justice Cantil-Sakauye called the SCA “woefully outdated” when applied to modern forms of communication. She suggested that the issue might be addressed again depending upon how the trial court rules on the remanded motion.

In the meantime, the Court’s seven-factor test provide a framework for litigators on how to attack or defend subpoenas to social medial platforms.

If you have questions or would like more information, please contact Barry Miller at [email protected].

Agent of Shield: Corporate Protection or Prudent Reopen – Liability Protection under the HEALS Act

Posted on: August 19th, 2020

By: Davit Zargaryan

On July 27, 2020, the Senate released their proposal for “Phase 4” of emergency assistance to alleviate the impact of the COVID-19 pandemic. The Heath, Economic Assistance, Liability Protection and Schools (HEALS) Act is a combination of smaller bills intended to:

  • Allow certain small businesses to take an additional PPP loan; allocated $60 billion for the creation of a long-term loan program; and clarify qualifications and forgiveness, among other things.
  • Allocate $105 billion for schools, $15 billion for childcare, and additional billions for testing, vaccines, and research.
  • Allocate $306 billion for agriculture, the Food and Drug Administration, and the Departments of Defense and Commerce.
  • Establish a “Rescue Committee” to review the solvency of the Social Security and Medicare trust funds and report how to (1) avoid depletion, (2) establish solvency over 75 years, (3) simplify, and (4) improve the programs.
  • Address testing, stockpiles, data collection, grants and waivers for schools and students, in preparation for reopening of schools.
  • Support restaurant works by increasing tax deduction for business meals from 50% to 100%.
  • Establish a $7.5 billion tax credit, in order to shift PPE manufacturing from China to the United States.
  • Establish a five-year liability “shield” for business, healthcare providers and schools from plaintiffs seeking to recover for exposure to COVID-19.

Among the proposals the Safe to Work Act, which establishes liability protections for exposure to COVID-19, elicited a majority of the debate and controversy. Sen. John Cornyn’s (R-Texas) bill proposes a “prudent reopening of businesses and other organizations that serve as the foundation and backbone of the national economy […]”. Sen. Cornyn suggests that Congress must ensure that health care workers and facilities can act “fully to defeat the virus”. Additionally, he reasons that Congress must safeguard the investment of “taxpayer dollars under the CARES Act […]”.

To that end, the proposed bill would create an exclusive cause of action and establish a one-year statute of limitations for a plaintiff to bring forth an actual, alleged, feared, or potential exposure case within the jurisdictions of Federal, State, or Tribal Courts. To be successful a plaintiff must prove by clear and convincing evidence that:

  1. in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;
  2. the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
  3. the actual exposure to coronavirus caused the personal injury of the plaintiff.

Additionally, the bill provides for defenses (and exceptions to defenses) if there is: (1) conflicting applicable government standards (unless mandatory), (2) written or published policies on the mitigation of transmission of coronavirus (rebuttable by showing noncompliance), and (3) transmission by a third party (unless a plaintiff can establish control or agency). The bill also blocks evidence of mitigation and compliance from being admitted to prove liability.

While negotiations between the House of Representatives, Senate and the White House continue, the Senate joined the House in adjourning until Labor Day. To date, Alabama, Arkansas, Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Utah, and Wyoming have already taken steps to narrow liability limits related to COVID-19 exposure. The national legislation would provide a unified approach to a developing trend to protect, but not absolve, employers of their duty to maintain safe operations for customers and workers.

If you have questions or would like more information, please contact Davit Zargaryan at [email protected].

Expert Testimony on the Ultimate Issue under O.C.G.A § 24-7-704: Anything Goes?

Posted on: August 18th, 2020

By: Alexia Roney

After a recent article in the Georgia Bar Journal, there is renewed interest in using experts to testify on ultimate issues under the protection of O.C.G.A. § 24-7-704. See Brett A. Adams, An Overview of Ultimate Issue Evidence, 25 Ga. Bar J. 19 (June 2020). As of January 1, 2013, expert testimony “otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact” unless such testimony concerns the mental state or condition of an accused in a criminal proceeding. O.C.G.A. § 24-7-704. See generally State v. Orr, 305 Ga. 729, 729, 827 S.E.2d 892, 894 (2019). As noted by Mr. Adams, “the statute is exceedingly broad,” and the benefits to litigants are clear: juries value an expert’s opinion, often over their own.

Despite the statute’s breadth, though, there remain two significant limits on an expert’s testimony. Before reaching the ultimate issue, the proponent of the testimony must first run the gauntlet of O.C.G.A. § 24-7-702. Expert testimony is admissible only if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue….” O.C.G.A. § 24-7-702(b). The opinions must be “based upon conclusions drawn by the expert that the jury could not ordinary determine for themselves.” Clayton County v. Segrest, 333 Ga. App. 85, 90 775 S.E.2d 579, 584 (2015) (quotations omitted). The Georgia courts will not let a party use an expert to bolster their position on an ultimate issue where it is within the ken of the jury. See Pyatt v. State, 298 Ga. 742, 755, 784 S.E.2d 759, 771 (2016); State v. Butler, 256 Ga. 448, 454, 349 S.E.2d 684, 689 (1986).

Moreover, there is still one line that the expert cannot cross: the purview of the Court. Experts cannot give their opinions on legal matters, such as fault or proximate cause, even if expert testimony is needed. The expert cannot “merely tell the jury what result to reach and may not testify to the legal implications of conduct,” Segrest, 333 Ga. App. at 91, 775 S.E. 2d. at 585, or which party is “at fault.” Brown v. Tucker, 337 Ga.App. 704, 707, 788 S.E.2d 810, 815 (2016).

For those practicing in federal court, the limitations above are old friends. The Comments to the Federal Rules of Evidence 704 advise litigants that Rules 701 and 702 “stand ready” to exclude expert opinions which merely tell the jury what result to reach or phrased as inadequately explored legal criteria. Mr. Adams provides a helpful section outlining potential limitations to expert testimony despite O.C.G.A. § 24-7-704, 25 Ga. Bar J. at 22, but there is a dearth of Georgia law on point. As such, litigants in state court still must turn to federal case law before offering expert testimony on an ultimate issue. Not anything goes.

If you have questions or would like more information, please contact Alexia Roney at [email protected].

Supreme Court to Hear TCPA Case on Autodialer Definition

Posted on: August 18th, 2020

By: Matthew Foree

The Supreme Court of the United States recently announced that it will consider an important Telephone Consumer Protection Act (“TCPA”) case concerning the problematic statutory definition of “automatic telephone dialing system” (“ATDS”). Information about the case, Facebook, Inc. v. Duguid, can be found here.

As we have reported several times before, the determination as to what constitutes an ATDS has created significant confusion, resulting in a patchwork of inconsistent decisions throughout the country. The definition in the statute, which dates to 1991, provides that an ATDS is “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Among other things, the TCPA prohibits using an ATDS to make calls to a cellular telephone without the consent of the called party. Therefore, whether an ATDS was used in making calls can be determinative of liability. In the Facebook case, the Supreme Court will consider the specific issue of whether the definition of ATDS in the TCPA encompasses any device that can store and automatically dial telephone numbers, even if the device does not use a random or sequential number generator.

The U.S. Circuit Courts of Appeal have interpreted the statutory language inconsistently. Some courts, like the Eleventh Circuit, interpret the language literally with a restricted approach, while others have expanded the definition. For example, in Marks v. Crunch San Diego, LLC, the U.S. Court of Appeals for the Ninth Circuit concluded that the “statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to dial stored numbers automatically.” Accordingly, the court read the statute to provide that ATDS means “equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers.” Interestingly, since the Supreme Court granted certiorari, the Sixth Circuit has joined the Ninth Circuit in its interpretation of this language in the Allan v. Pennsylvania Higher Education Assistance Agency case.

Thankfully, this issue will finally be resolved by the Supreme Court’s decision in this matter. Practitioners and their clients are eagerly awaiting the Court’s decision to clarify the definition of ATDS. Facebook’s brief is due to be filed with the Supreme Court by September 4, 2020, and Respondent’s briefing is due on October 16, 2020.  A ruling is expected by the summer of 2021. In the meantime, many U.S. District Courts are granting motions to stay pending the resolution of this important decision.

If you have any questions or would like more information, please contact Matt Foree at [email protected].

Georgia Enacts Immunity for COVID-19 Claims

Posted on: August 17th, 2020

By: Jake Daly

As described in my previous post, the Georgia General Assembly passed a bill in the waning minutes of the 2020 session to provide immunity from civil damages for healthcare facilities and providers, other businesses, and individuals that are sued by employees, customers, visitors, and patients who are infected with COVID-19. The new law, known as the Georgia COVID-19 Pandemic Business Safety Act, became effective on August 5, 2020, when Governor Brian Kemp signed the bill. The Act is codified at O.C.G.A. §§ 51-16-1 to -5.

My previous post contains a detailed summary of the Act’s provisions.  Most importantly, the Act confers immunity on healthcare facilities and providers, other businesses, and individuals from “COVID-19 liability claims” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. The Act also creates a rebuttable presumption of assumption of the risk by the claimant under certain circumstances.

For claims against a business or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the business’s or the individual’s premises, other than the premises of a healthcare facility, the claimant is presumed to have assumed the risk if the business or the individual issued a receipt or proof of purchase for entry that includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

Alternatively, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the premises that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

For claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the facility or the premises that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

These rebuttable presumptions do not apply if the actions of the business, the individual, or the healthcare facility/provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Before discussing how the Act affects healthcare facilities and providers, other businesses, and individuals, it bears noting that it seems difficult to reconcile the provision that creates immunity with the provisions that create a rebuttable presumption of assumption of the risk. Both the immunity and the rebuttable presumption are defeated by a showing of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, and so both or neither will be available to a defendant. If the immunity is available, a rebuttable presumption is meaningless. Thus, the provisions that create a rebuttable presumption of assumption of the risk seem to be superfluous.

Importantly, the Act does not require the use of the warnings quoted above.  They are required only if a business, an individual, or a healthcare facility/provider wishes to avail itself of the rebuttable presumption of assumption of the risk. From a purely legal perspective, these warnings should be used because of the protection they provide from potential civil damages. However, healthcare facilities and providers, other businesses, and individuals should consider more than just legal consequences when deciding whether, and to what extent, to resume their operations. Seeing one of these warnings might be disconcerting to some people, and so using them could have a negative effect. How people react to these warnings will probably depend somewhat on the nature of the business. For example, it seems that people entering a healthcare facility would be less likely to react negatively to a warning about contracting COVID-19 than a person entering a restaurant. The point is that protection from legal liability does nothing for a business that has no customers. Thus, every business must strike its own balance between economic, health, and liability considerations.

In weighing these considerations, healthcare facilities and providers, other businesses, and individuals should be aware that evidence of their decision not to use these warnings is not admissible in a lawsuit. Further, they are entitled to immunity under the Act even if they do not use these warnings. Thus, for some, the potential negative effects of using these warnings may be worse than foregoing the rebuttable presumption of assumption of the risk.

As shown by the exception for gross negligence, etc., the Act does not provide absolute immunity from all liability relating to COVID-19. Depending on how lenient judges are in finding factual disputes as to gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, the immunity or the rebuttable presumption of assumption of the risk may not provide sufficient protection for healthcare facilities and providers, other businesses, and individuals. The Act should not be viewed as a limitation on what healthcare facilities and providers, other businesses, and individuals can do to protect themselves from liability for money damages. Regardless of whether they use the warnings prescribed in the Act, they should follow all guidelines recommended by the CDC and their state and local governments. They should also consider guidelines issued by regulatory agencies and trade organizations since those entities are more likely to have guidelines that are specifically tailored for their type of business.  Complying with industry-specific guidelines should reduce liability exposure. Equally important is documenting compliance with guidelines.

Another option is to require persons entering the premises to sign a waiver of liability. This may not be possible for certain types of businesses, but even for those for which it is possible, it may not be advisable from a customer relations perspective. For certain businesses, the very act of asking a customer to sign a waiver of liability form may be counter-productive. Again, each business will have to weigh the pros and cons based on its unique characteristics.

Finally, the Act does not limit any other immunity that may be available under state or federal law, and it does not modify or supersede other specified laws, including those in Title 16 (crimes), Title 31 (health) and related regulations, Chapter 9 of Title 34 (worker’s compensation), and Chapter 3 of Title 38 (emergency management). Also, a claimant asserting a COVID-19 liability claim still must prove causation. Because COVID-19 has an incubation period of up to 14 days, and because it can be transmitted from person to person asymptomatically, it will be very difficult for a claimant to prove where or from whom he or she was infected.  Also, even if a claimant can identify a specific person who allegedly infected him or her, it will be difficult to prove that the person’s violation of a particular guideline (e.g., wearing a mask) caused the infection. After all, a person can be infected in the total absence of negligence by another person. Thus, even if the immunity or the rebuttable presumption of assumption of the risk is not available, proving causation will be a high hurdle for claimants to overcome.

As with all things COVID-19, there is much uncertainty surrounding the viability of claims brought by people who are infected with COVID-19 on someone else’s property. Healthcare facilities and providers, other businesses, and individuals should take certain precautions to protect themselves from litigation, but the nature and extent of those precautions requires a careful balancing of various competing interests.

If you have questions or would like more information, please contact Jake Daly at [email protected].