Quote of the Day - Blessed is the man who, having nothing to say, abstains from giving us worthy evidence of the fact.
Lawyer2Lawyer Internet Radio Goes By The New Rules: Federal Rule of Evidence 502
Every lawyer knows the costs of discovery can escalate. Last month on September 19, 2008, President Bush signed Senate Bill 2450 into law, which establishes Federal Rule of Evidence 502 and is effective immediately. This law creates a new rule of evidence limiting certain attorney-client privilege and work product waivers.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Robert D. Owen, a partner in Fulbright & Jaworski L.L.P., to take a look at the new Federal Rule of Evidence 502 and see how this new rule will affect litigation and litigation costs as well as clients.
It's not that easy to find, so in case you're looking for the text of the new rule, here it is:
Federal Rule of Eviden 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY; SCOPE OF A WAIVER. - When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) INADVERTENT DISCLOSURE. - When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
(c) DISCLOSURE MADE IN A STATE PROCEEDING.- When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a Federal proceeding; or
(2) is not a waiver under the law of the State where the disclosure occurred.
(d) CONTROLLING EFFECT OF A COURT ORDER. - A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other Federal or State proceeding.
(e) CONTROLLING EFFECT OF A PARTY AGREEMENT. - An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) CONTROLLING EFFECT OF THIS RULE. - Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.
(g) DEFINITIONS. - In this rule:
(1) ‘attorney-client privilege' means the protection that applicable law provides for confidential attorney-client communications; and
(2) ‘work-product protection' means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
For more on clawback and quick peek agreements, give a listen to the show. You can also download our show to your iPod.
Can You Sue God? Is It Necessary To Join Satan As An Indispensable Party?
Apparently Nebraska State Senator Ernie Chambers thinks so - at least on the first part. The jury's still out on the second. He sued God in Nebraska state court, but the judge dismissed the case for lack of service: "Given that this court finds that there can never be service effectuated on the named defendant this action will be dismissed with prejudice," Douglas County District Judge Marion A. Polk wrote from Courtroom 10. According to the Associated Press article in that last link, Senator Chambers isn't taking it lying down. " 'The court itself acknowledges the existence of God,' Chambers said Wednesday. 'A consequence of that acknowledgment is a recognition of God's omniscience.' Therefore, Chambers said, 'Since God knows everything, God has notice of this lawsuit.' "
I don't know about you, but it is a bit of a turn of events from Gerald Mayo's 1971 lawsuit against Satan. His case was dismissed as well, and somewhat one the same reasoning:
I don't get it. Everybody's so concerned about jurisdiction. If as Senator Chambers argues, God is all around, then isn't he/she in the courtroom, too? But that's just the half of it. I think you can't sue God without also bringing Satan into the lawsuit. Any case takes two sides to argue.
Just think. We might even be able to make some headway in the election and the current economic crisis.
My only hope is that Senator Chambers files an appeal.
Supreme Court's Chief Justice Takes A Look Back To Writing Style Of The Fifties
"North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.
"Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office. "
And with that Mickey Spillane-style writing, none other than Chief Justice of the United States Supreme Court John Roberts as he dissented from the the petition for a writ of certiorari denied by the rest of the Supreme Court (except Justice Kennedy, who joined in Roberts' dissent) in the case entitled: Pennsylvania v. Nathan Dunlap. If you're interested in the Pennsylvania Supreme Court opinion in Commonwealth v. Dunlap, click on the case name.
Some might think that Roberts was trying to imitate Raymond Chandler's Phillip Marlowe, but it could just as easily be Mickey Spillane's Mike Hammer or Dashielle Hammet's Sam Spade. In any event, it's a nice breath of dark fresh air.
OK, So I'm Not A Harvard Law Professor
, but How to Get Sued is in there between two of them: Alan Dershowitz's new book, Is There A Right To Remain Silent and Lawrence Tribe's new book, The Invisible Constitution. Right in between the two in San Bernardino's Barnes & Noble bookstore. See ...
Yes, for a few days after this post is up, it will block the news and ads over there on the right. After a post or two, it will fit right back in between the lines. So to speak.
Lawyer2Lawyer Internet Radio Goes Smokeless
Will the U.S. Supreme Court dismiss a class action suit brought by smokers in Maine, who say they were misled into believing that "low tar" and "light" cigarettes are a healthier alternative to regular cigarettes? Arguments heard before the high court this week, pit tobacco giant, Phillip Morris against smokers. Law.com blogger and co-host, Bob Ambrogi welcomes Dr. Jeffrey Wigand, a nationally known whistleblower involving tobacco company, Brown & Williamson. Wigand's courageos story ultimately led to a landmark case against big tobacco, changes in cigarette advertising and was the basis for the movie, The Insider. He is now founder of SMOKE-FREE KIDS, Inc. Tony Mauro, Supreme Court correspondent for Legal Times and Law.com, also joins us to discuss this important case with insights from inside the courtroom.
An At-Will Employment Contract Or A Promise Not To Terminate For Cause?
You Can't Have It Both Ways
The Salvation Army employed Arthur Stillwell back in 1962 until about 1977, and then on and off through the eighties, when it hired him back full-time in 1997 until it terminated him in 2003. When it hired him back, the Army provided a written agreement to Stillwell that contained an "at will" clause, which allowed the Army to terminate him without cause.
Because of Stilwell's long employment, he alleged that the Army had promised him it would not terminate him without cause. During his trial, he was able to introduce that evidence with enough success to convince a jury.
Trouble is, however, you can't have it both ways. Either you have a written contract or an equitable contract. It goes to one of the most basic divisions in the law: tort and contract. With few exceptions, you can't recover a tort claim and a contract claim based on the same set of facts.
Unfortunately for both Stillwell and the Army, the jury awarded him both tort and contract recovery when it gave him a little over $158,000 in damages. Now don't get too excited here and think my choice of "unfortunately" was imprudent. Read on. The Army convinced the judge to overrule the jury's verdict and grant a defense verdict, with no damages, so Stilwell appealed. Now you see at least one side was unhappy with the result.
The Court of Appeal reversed that decision and ordered the court to hold a new trial. This time, hopefully, the court and the lawyers will make the jury questionnaire more definitive, and set it up so it allows only one decision: written contract or implied contract. See why I used "unfortunately?" They both lost.
If only the Army would have had a modification clause that prevented others in the Army from making promises contrary to the terms of the written employment agreement. Do you think they need a good lawyer?
It Doesn't Pay For Insurance Companies To Negotiate In Bad Faith
Natalie Aguirre hit a parked car stopped at a red light. She didn't carry enough insurance for the injuries she caused. The car that Natalie hit belonged to Stuart Brehm's parents. After the injury, he and his parents equally divided the $30,000 of coverage Natalie had. Stuart, however, needed more to cover injuries to his shoulder, so he made a claim to 21st Century Insurance under his parent's underinsured motorist coverage, which had limits up to $100,000.
Stuart Brehm, IV submitted documentation of his severe shoulder injury that required surgery, and his doctor estimated his claim near the limit of the 21st Century policy. In response, 21st Century's medical expert, Dr. Swickard, disputed Brehm's injury and made a counteroffer of $5,000.
Without an agreement, they scheduled an arbitration, and Stuart underwent an independent medical evaluation, which put his costs around $20,000. He submitted an offer to 21st Centruy for $85,000. In the arbitration, Brehm received $91,186, which 21st Century then paid.
Next, Brehm filed a breach of implied covenant of good faith and fair dealing lawsuit, alleging 21st Century's medical evaluation was a sham. According to the record, Brehm further alleged Dr. Swickard, a nonpracticing professional expert witness, was known to the insurance industry to be biased in favor of the defense and was retained, not to objectively and fairly evaluate Brehm's shoulder injury, but with the intent that he minimize its seriousness to make it appear ‑‑ falsely ‑‑ there was a genuine dispute about the extent of that injury."
The trial court kicked his case out, but in the appeal his case got reinstated. The appellate court ruled that 21st Century couldn't avoid the bad faith lawsuit simply by requesting the arbitration, and that the the Genuine Dispute Rule does not protect an insurer whose position is not maintained in good faith and on reasonable grounds. In other words, by its so-far-off-the-mark offer, 21st Century likely committed bad faith, and Brehm is entitled to have a jury hear his arguments. While the case may get to a jury, with this ruling, it's more likely to settle.
You could say that Brehm has shoulded his fair share of abuse.
What Liability Do Arrangers And Owners Have On Superfund Sites?
Supreme Court Agrees To Tell All
It's difficult to parse a 191-page District Court ruling and a 78-page Ninth Circuit ruling down to something easy to understand, but here's my attempt. Note in the last link that the the actual opinion starts on the 37th page - the first part is the dissent. Shell and several railroads, the Burlington, Northern & Santa Fe Railroad, the Atchison, Topeka & Santa Fe Railroad and the Union Pacific Railroad were involved in a toxic contamination site. It's located in Arvin, California just southeast of Bakersfield in an agricultural area, and the United States Environmental Protection Agency and the California DTSC (Department of Toxic Substances Control) have attempted to clean it up. The Arvin site isn't completely clean yet, and both agencies may have to spend more money to clean it up. The chemicals stored on the site were nematocides, which are designed to kill nematodes, microscopic worms that attack the roots of crops.
After their initial cleanup, the two agencies sued Shell and the railroads for the cost under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act, the federal statute more commonly known as Superfund) that imposes strict and joint and several liability on the potentially responsible parties. Based on various factors such as time, ownership, size of the parcels and fractions of the hazardous chemicals found on the parcels, the District Court apportioned the cleanup costs, but the manner of apportionment didn't allow the agencies full recovery of the money they spent on the cleanup. The District Court held the railroads only nine percent liable and Shell only six percent liable.
The agencies appealed, and the Ninth Circuit determined that the District Court did not apportion the cost properly, instead assessing the entire cost of cleanup to both Shell and the railroads under CERCLA's strict and joint and several liability scheme. The companies appealed, and the Supreme Court has now agreed to hear the case, which will most likely occur next term in 2009 since their docket is full for the 2008 term. So we probably won't know the outcome until sometime in 2010.
But let's get back to the case. First, the Ninth Circuit majority opinion held Shell liable with the following language: "Shell arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage, and so the disposal, of those chemicals." Under CERCLA, an entity that "arrange[s] for disposal or treatment . . . of hazardous substances" is strictly liable for the clean-up costs. 42 U.S.C. § 9607(a)(3). The Free Dictionary defines strict liability as: "absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault." Shell argues it was not an arranger. Shell's potential liability arises from its delivery of the chemicals to the site, but it contends it has no liability for the cleanup.
Not everyone on the Ninth Circuit agrees that Shell is liable, however, which makes the matter into a horse race. The dissent argued with the majority's finding of liability for Shell, saying: "the panel [improperly] imposes ‘arranger' liability on Shell Oil for agricultural fertilizers that were spilled on the site by the buyer of Shell's product, shipped by a common carrier in non-defective truck tankers, F.O.B. [Free on Board at the] delivery point. The [majority] panel's imposition of arranger liability on a mere seller, which relinquished control over its products upon delivery and before spillage occurred, goes far beyond the statutory language and creates inter- and intra-circuit splits." The Court notes that FOB means "when the term is F.O.B. the place of destination, the seller must at his own expense and risk transport the goods to that place and there tender delivery of them." U.C.C. § 2-319(1)(b). Even so, CERCLA has provisions for transporter liability, which is not yet an issue in this case.
Part of the problem the court faces is the absence of a major player at the Arvin site. The site's operator, Bryant & Bryant is now defunct, but "owned and operated an agricultural chemical distribution facility" for 29 years, and about 15 years into its operations, leased just less than an acre of land from the railroads. That 0.9 acre lease for 14 years drew the railroads into the lawsuit and made them a potentially responsible party liable for the cleanup costs under the statute. The railroads are owners of the site, which makes them liable for the cleanup, a point universally agreed to in the opinion. The question for the railroads revolves around the amount of their liability.
Here's how CERCLA lays out liability according to the Court: "Under its provisions, parties can be liable for cleaning up toxic chemicals if they fit into one or more of the four PRP categories set out in § 9607(a):
(1) the owner and operator of . . . a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person . . . , and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities . . . . "
The next question, then, becomes how does the court apportion the liability of those liable? Apportionment is a common law tort remedy, however, not a statutory remedy. Part of the problem in developing the apportionment lies in the statutory remedy afforded by CERCLA - the round hole of common law divisions normally used in typical tort cases don't easily handle the square peg of CERCLA. For example, the causation issue is particularly troublesome. There's nothing that an owner of the property does to "cause" the contamination. Likewise, the delivery of the chemicals didn't cause the contamination. It was the poor handling of the chemicals - spills during transfer and leaking tanks that actually caused the contamination. Nevertheless, CERCLA holds both parties equally responsible. The rub here then is the missing operator who is, under common law, "more liable."
Likewise, the concept of harm has the same round-hole, square-peg problem. The harm to be divided is not the actual contamination, as you would first think, but rather the payment for someone else's remedy of the harm. Then there's the question of equity - how to divide and according to what factors - time, amount of contribution to the contamination or other reasonably applicable measures. Not an easy thing to do between an owner and an arranger. Finally, there's the question of strict liability - the responsibility for the whole amount of the cleanup - something difficult to achieve when the remaining defendants have so far been held to be 15% responsible, especially when the Court says Congress originally intended to collect the cost of cleanup from those who are more responsible than the government, who so far is the only one who paid to clean the site.It's obviously a mess that will take the Supreme Court a few hundred pages to sort out. MIPTC will keep its ear to the ground and you informed of the outcome in a few years, but in the meantime, I'll go out on a limb and predict that Shell will be kept in and the amount of liability paid by Shell and the railroads will be a lot closer to 100%.