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Posts Tagged ‘evidence’

Arbitration Agreements in New Jersey Need More Details

Posted on: November 16th, 2018

By: Chris Curci

On November 13, 2018, the Superior Court of New Jersey, Appellate Division, issued an important decision holding that an arbitration agreement between the employer and employee was not enforceable. Flanzman v. Jenny Craig, Inc., Docket No. L-6238-17.  The arbitration agreement read:

Any and all claims or controversies arising out of or relating to [plaintiff’s] employment, the termination thereof, or otherwise arising between [plaintiff] and [defendant] shall, in lieu of a jury or other civil trial, be settled by final and binding arbitration. This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind.

According to the Appellate Division, this agreement was unenforceable because it “failed to identify the general process for selecting an arbitration mechanism.” What exactly does that mean?

In its effort to clarify this standard, the Appellate Division stated that an employer is not required to “detail in the arbitration agreement the exact manner in which the arbitration” will proceed. However, an employer must identify the “forum” for the arbitration and clearly explain how the employee’s judicial rights to a jury trial are being replaced by the arbitration rights.

For example, the Court noted that it would be sufficient for an employer to (1) identify a forum such as the American Arbitration Association (“AAA”) or the Judicial Arbitration and Mediation Services (“JAMS”), and (2) adopt that forum’s rules and procedures. The Court opined that this would be sufficient because AAA and JAMS’s rules and procedures address numerous procedural issues, such as: (1) notification requirements, (2) how to initiate proceedings, (3) management conferences, (4) discovery, (5) the location of the hearings, (6) the number of arbitrators, (7) how to communicate with the arbitrator, (8) attendance requirements, (9) dispositive motions, (10) evidence, (11) modification of awards, (12) and applications for fees, expenses and costs.

In other words, while the arbitration agreement is not required to “detail the exact manner in which the arbitration will proceed,” an employer must specifically identify a forum such as AAA or JAMS and incorporate that forum’s rules and procedures. This allows the employee to fully understand how his or her judicial rights to a jury trial are being replaced by arbitration.

Employers should review their employee arbitration agreements to ensure their enforceability. If you need help with this or any other employment related question, Chris Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of Freeman Mathis & Gary’s Labor and Employment Law National Practice Section. He represents employers in litigation and advises clients on all aspects of employment law. He can be reached at [email protected].

Something Rotten: Spoliation Claims Against a Plaintiff

Posted on: June 15th, 2018

By: Sean Ryan

The Georgia Supreme Court recently clarified that same duty and standard applies to a plaintiff as to a defendant in assessing potential spoliation claims. In Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336 (2018), the Georgia Supreme Court stressed that the duty to preserve relevant evidence is “defined the same for plaintiffs and defendants” and “arises when the alleged spoliator actually or reasonably should have anticipated litigation.” While a plaintiff’s duty to preserve relevant evidence may more often revolve around the actual knowledge of litigation because a plaintiff largely controls when to bring a lawsuit, a plaintiff still “must act reasonably in anticipating whether litigation arising from an injury will occur.” In addressing reasonableness, a court should consider a non-exhaustive list of factors such as the type and extent of the injury, whether fault for the injury is clear, the level of sophistication of the party and familiarity with the likelihood of litigation is similar situations, and whether the party has hired an attorney, expert, or investigator.

In Koch, plaintiff’s husband died following a car accident where a tire tread, manufactured by Cooper Tire, separated from the left rear tire of the husband’s vehicle, allegedly causing the vehicle to strike a guardrail and overturn. The plaintiff allowed the vehicle and three tires without tread separation to be destroyed, saving only the allegedly defective tire. In the ensuing litigation, Cooper Tire moved to dismiss the lawsuit or impose sanctions against the plaintiff for spoliation of evidence.

Using the standard outlined above, the Supreme Court held the trial court did not err in finding the plaintiff did not actually contemplate litigation at the time the car was destroyed and should not reasonably have contemplated litigation. The Court cited the plaintiff’s lack of previous litigation experience, the belief by plaintiff and her husband that he would recover from his injuries, the plaintiff’s lack of investigation into the accident, and the plaintiff’s decision to retain counsel after the vehicle was destroyed. The Supreme Court also credited the fact that plaintiff’s counsel took steps to preserve evidence, albeit fruitless, once hired several weeks later.

What does this mean for defendants in tort cases moving forward? While the Court in Koch did not find the plaintiff’s conduct sanctionable, the case clarifies that a plaintiff must conform to the same standard as a defendant in preserving evidence relevant to their case and that this duty arises independent of the defendant’s duty. The case also sends a clear signal that a plaintiff will be expected to preserve evidence following consultation with an attorney or expert. Such consultation is a fair indicator that plaintiff anticipated or reasonably should have anticipated litigation. Armed with this case law, defendants are in a strong position to demand preservation of relevant evidence, including data from vehicles, cell phone data, and social media data.

If you have any questions or need more information, please contact Sean Ryan at [email protected].

The Hearsay Exception for Market Reports

Posted on: July 15th, 2016

By:  Ryan Babcock

The hearsay exception for “compiled information” or market reports is an important tool that allows for the admission of such evidence notwithstanding the hearsay rule, but it is generally strictly applied by the courts. For that reason, counsel must carefully consider whether the rule permits the admission of such evidence in developing a trial strategy with respect to the admissibility of certain exhibits.

The hearsay exception for market reports and other compilations is defined as follows by Rule 803(17) of the Federal Rules of Evidence:

Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

Most courts find these compilations reliable, and admissible, provided that they are used by the public or a particular profession or occupation (and thus reliability is supported by market forces). In weighing the admissibility of such evidence, courts usually also consider whether the evidence is “necessary,” such as whether it is the only way to determine the truth of the matter at issue, and whether locating the person who made the report would be impossible. Recent state cases in the criminal context drive home this point: People v. Hard, 342 P.3d 572, 575–79 (Colo. App. 2014) (no necessity to rely on drugs.com for evidence that the defendant possessed a particular unprescribed pharmaceutical drug because the state could, but did not, have the drug tested); Hardy v. Florida, 140 So. 3d 1016, 1019–21 (Fla. Dist. Ct. App. 2014) (finding that evidence from the E-FORCSE database should not have been admitted because it was not published—as required by Florida’s evidence rules—and noting that there was no evidence that the information in the database was “reliable,” rather than simply being an investigative

tool); People v. Franzen, 210 Cal. App. 4th 1193, 1209 n.6, 1213–14 (Cal. Ct. App. 2012) (no necessity for database evidence because the state could have subpoenaed the telephone company, and the Entersect website was not shown to be accurate).

Certain statements in a publication or “compilations” would clearly not qualify under the rule. See Danner v. Int’l Freight Sys., 855 F. Supp. 2d 433, 472 & n.53 (D. Md. 2012) (noting that a quote from a popular magazine, without citation, regarding the “increased trophy fee” for a lion obtained in an overseas safari is inadmissible). A federal district court in Texas has rejected efforts to use a LinkedIn profile to determine a person’s location, finding the requisites of reliability and necessity clearly unsatisfied. Personal Audio, LLC v. CBS Corp., No. 2:13-CV-270-JRG-RSP, 2014 U.S. Dist. LEXIS 37089, at *15–16 (E.D. Tex. Mar. 20 2014) (Payne, Mag. J.). And the Fourth Circuit has recently explained that statements in a material safety data sheet would not be sufficiently reliable to be admitted under this exception, inasmuch as the statements were opinion statements, or warnings, made in an effort to limit liability, not factual compilations as such. In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 810 F.3d 913, 923–24 (2016) (such evidence was admissible as non-hearsay to show notice).

In another case, a plaintiff’s attempt to admit certain industry publications and stock analyst reports, in wholesale form, as exhibits was rejected by a federal district court, which explained that courts take a narrow view of the exception, applying it to true compilations, not documents containing narrative and potentially subjective opinion. The court did note that properly redacted exhibits might be admitted at a later date. Bianco v. Globus Med., Inc., No. 2:12-CV-00147-WCB, 2014 U.S. Dist. LEXIS 3430, at *2–7 (E.D. Tex. Jan. 12, 2014).

Counsel should also bear in mind authentication, when there is any question concerning the authenticity of the evidence. In such circumstances, counsel must be prepared to lay a foundation, through live witness testimony or otherwise, that the compilation or market report is properly authenticated. See, e.g., Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS, 2013 U.S. Dist. LEXIS 10670, at *21–22 (D.N.M. Jan. 18, 2013) (authentication required as to a document purporting to show the great decline of the price of potatoes). And while the evidence from the compilation may properly get into evidence, that evidence alone may not suffice to overcome summary judgment, especially where the figures given are in the form of a range and the proponent of the compilation offers no additional evidence regarding the fact at issue. See Colvin v. Ameri-National Corp., No. 1 CA-CV 10-0528, 2011 Ariz. App. Unpub. LEXIS 1240, at *9–11 (Ariz. Ct. App. Oct. 4, 2011) (finding Kelley Blue Book admissible but insufficient to establish the valuation of the plaintiff’s Honda, as there was no particular evidence regarding the vehicle’s condition). Alternatively, counsel should consider whether the court might take judicial notice of the compilation at issue. Hines v. Shineski, No. 10-3973, 2012 U.S. App. Vet. Claims LEXIS 1385, at *9 (Vet. Claims App. July 5, 2012) (taking judicial notice of a city directory for 1967–68).

“Originally published in the Spring 2016 Newsletter of the American Bar Association’s Trial Evidence Committee.”

Can You Hear (or See) Me Now? No, and that May Constitute Spoliation

Posted on: February 24th, 2016

By: Andy Treese

The Georgia Court of Appeals recently held that a municipality may be subject to sanctions for failure to preserve audio recordings of a police pursuit when the recordings were destroyed in the ordinary course of business before it received ante litem notice or other actual notice of contemplated litigation.

Last year we reported here about Phillips v. Harmon, in which the Supreme Court of Georgia held that the duty to preserve evidence may be triggered by a party’s constructive notice of pending or contemplated litigation.  The ruling marked a significant expansion from the previous rule, which required actual notice (such as a spoliation letter, letter of representation or ante litem notice) to trigger the duty.  We expressed concern that in the wake of Phillips, plaintiffs would begin to seek sanctions for spoliation based upon failure to preserve evidence when a defendant “should have” known a lawsuit was coming, and that defendants with relatively short record retention periods for audio or video recordings would be particularly vulnerable to these claims.   A recent ruling by a full panel of the Georgia Court of Appeals seems to validate those concerns.

In Loehle v. Georgia Department of Public Safety, 334 Ga. App. 836 (2015), plaintiffs filed suit against the Georgia Department of Public Safety and the City of Atlanta after they were injured by suspected carjackers fleeing from police. According to the opinion, Atlanta failed to preserve audio recordings related to the pursuit, destroying them pursuant to its customary retention period after about 120 days, prior to the receipt of ante litem notice.  The trial court held, applying pre-Phillips law, that Atlanta’s failure to preserve the recordings did not constitute spoliation because when the recording were destroyed, the city lacked actual notice that the plaintiffs were contemplating suit.  The Georgia Court of Appeals held, 6-1, that the trial court applied the wrong legal standard, vacated the trial court’s ruling as to spoliation, and remanded for re-consideration under the standard set forth in Phillips.  The sole dissenter, Judge Andrews, would have affirmed the trial court’s ruling because the plaintiffs did not make or preserve “constructive notice” arguments as to the spoliation issue before filing their appeal.

Strategically, the Loehle ruling emphasizes the importance of prompt and thorough investigation of potential claims, even in the absence of a preservation request. Companies with relatively short retention policies (30, 60, or 90 days), particularly regarding audio and video-recordings, may want to re-examine their current policies and consider involving counsel early in pre-suit investigations.

A petition for certiorari has been filed to the Supreme Court of Georgia; we will monitor the case and report on future developments.

New Georgia Court of Appeals Case Affirms Spoliation Sanctions Against Plaintiff

Posted on: August 1st, 2013

By: Wayne S. Melnick

One of the largest areas of developing Georgia law in recent years is regarding spoliation of evidence and under what circumstances a court can and should sanction a party for allowing spoliation to occur.  Generally, spoliation refers to any party’s destruction or alteration of evidence.  Contrary to popular belief, sanctions based on spoliation of evidence are not available only to plaintiffs in a case, but are available to either party.  While we, as defense attorneys, often see spoliation being used as a weapon against the defense, often times, the plaintiff is the party in the best position to preserve evidence.  As a result, a plaintiff’s failure to do so can be used against him/her. When seeking sanctions against a plaintiff alleged to have spoliated evidence, a trial court will apply the same standards that are used to determine whether sanctions are appropriate when a defendant is alleged to have destroyed or altered evidence.

Although spoliation sanctions being applied to a plaintiff is rare in Georgia, it does happen.  Recently, the Georgia Court of Appeals affirmed the appeal of a defense verdict after the trial court found both that the plaintiff was responsible for the spoliation of evidence and also sanctioned the plaintiff with adverse instructions to the jury.  In Lee v. CNH America, LLC, 2013 WL 3388737 (Ga. Ct. of App. Case. No. A13A0696, decided July 9, 2013), the plaintiff found her husband trapped in a farm tractor three days after purchasing it new.  The case focused on a “height lift adjustment knob” that allowed part of the tractor at-issue to be instantly raised to its full height if the knob was loosened during operation.  Less than two months after the accident, but before the lawsuit was filed, defense counsel requested to inspect the tractor.  The inspection request was refused and the defense was not allowed to inspect the tractor until over two years later and four months after the widow filed her wrongful death law suit.  In the intervening period, the tractor was inspected by two consultants retained by the plaintiff and her son operated the tractor during the inspections.  Seven months before the defense was allowed to inspect the tractor, it was moved to an engineering firm in Florida and stored in unknown conditions and then one month before the defense inspection, it was again moved to a wrecker service in Alabama and stored in an enclosed building “that may not have had climate control.”

When the defense finally was allowed to inspect the tractor, the critical knob was rusted and stuck in place.  As a result, the knob could no longer be moved as it could when the tractor was sold as new.

Although the trial court denied a defense motion for summary judgment based on spoliation, the court did find that plaintiff had spoliated evidence and that sanctions were appropriate.  In determining that all factors to be considered pursuant to Georgia law for spoliation weighed in favor of applying sanctions against the plaintiff, the court charged the jury that a presumption arose against the party (plaintiff) who failed to preserve evidence necessary to contemplated or pending litigation.  In rejecting plaintiff’s argument that the sanction was inappropriate because she did not act in bad faith, the Court of Appeals affirmed that bad faith was not required to apply sanctions.

This case is a reminder that what is sauce for the goose is also sauce for the gander, and defense counsel should not hesitate to seek sanctions against a plaintiff when it was plaintiff that allowed for the destruction of evidence that is necessary to the defense of the case.