The Limits of Confidentiality
May 13, 2014 § 2 Comments
When most of us in the legal profession think of client confidentiality, we tend to think in absolute terms. That is, if it involves a communication between lawyer and client, or client documents or other forms of client secrets, it can not be disclosed.
The rule is not absolute, however. Rule of Professional Conduct (RPC) 1.6 provides six exceptions by which the lawyer may reveal otherwise confidential information of a client. RPC 3.3 and 4.1 complement 1.6.
MRE 502 is the lawyer-client privilege rule. It states that a lawyer may invoke the privilege on behalf of a client in order to keep attorney-client communications confidential. Subsection (d) sets out five exceptions in which the privilege may not be invoked: (1) if the lawyer acted to aid a client in committing a crime or fraud; (2) claimants through the same deceased client; (3) if the communication is relevant to a claim of breach of duty by a lawyer to a client; (4) if the communication pertains to an attested document to which the lawyer is the attesting witness; and (5) communications relevant to interests of joint clients in certain situations.
That third exception reads that there is no privilege under MRE 502:
… As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.
Exception 3 was the subject of an interlocutory order entered by the MSSC May 8, 2014, in the case of Flechas v. Pitts. The matter was before the court on “Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues filed by Petitioner; the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike filed by Respondent; Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document, and all responses and rebuttals.”
The issue arose in the course of litigation involving a will contest between Alyce Pitts and Todd Pitts, who claimed to be beneficiaries of the decedent, Troy Pitts, under competing wills. Attorney Flechas had represented Troy Pitts in various matters. He also represented Todd in the will contest. Flechas was served by Alyce with a subpoena duces tecum for “all files, records, electronic communications, written or any documents . . . including . . . all divorce files, personal injury defense files, estate files, Will or trust files, [and] deed preparation files.”
Flechas responded to the subpoena with a motion to withdraw, since the subpoena placed him in a testimonial role as to the contested matter at issue. He also objected to the subpoena on grounds of attorney-client privilege. The chancellor overruled both the motion and the objection based on MRE 503(d), ordering the attorney to produce all of the requested information. Flechas appealed.
The MSSC reversed the chancellor’s ruling, directing that he conduct an in camera inspection of every document produced in order to determine whether it is relevant to the issues in the will contest, and that he limit disclosure to those relevant documents. The MSSC’s rationale, involving analysis of MRE 502, MRCP 26, and MRCP 45, and applicable case law, is worth your time to read.
Alyce noted for the first time in her response to Flechas’s motion that she had filed pleadings with the trial court to disqualify the attorney, and asking that he be directed to disgorge funds allegedly held fraudulently. The chancellor defended his actions, in part, based on the fraudulent acts provision of MRE 502(d)(1). The Supreme Court took note, but did not alter its position.
In an age where lawyers are increasingly finding themselves in the cross-hairs of litigation involving themselves or others, this order is important authority for the proposition that you may be called upon to disclose your client’s information entrusted to you, along with your work product, and you had better be ready to help the court understand the limitations involved.
How Not to Propound Discovery Requests via Email
March 18, 2014 § 5 Comments
If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:
EN BANC
2013-IA-01784-SCT
Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.
An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?
After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.
It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.
Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.
The two points to take away from this are:
- Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.
- If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.
Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.
A Rules Gap that Can be a Fool’s Trap
October 16, 2013 § 4 Comments
MRCP 32 (a)(3)(E) allows for the use of a deposition at trial of a medical doctor “for any purpose.” R32(a) says that the deposition may be used ” … so far as admissible under rules of evidence applied as though the witness were then present and testifying… ”
In practice, that language has been applied to excuse medical doctors from personal appearance at trial, allowing their testimony to be presented by video deposition, or by reading into the record in jury trials, or by introduction of the transcribed deposition in bench trials. The deposition of a medical doctor, then, per this rule, has been deemed admissible in evidence as though the doctor were present and testifying, simply because the witness is a medical doctor.
When this amendment to rule 32 was adopted. It was seen as a friendly gesture to the medical profession, a way to encourage testimony of doctors without unduly interfering with their schedules. All doctor testimony henceforth would be via deposition. It was a no-cost win-win.
But, as Lee Corso would say, not so fast my friend.
The deposition of the medical doctor is unquestionably a hearsay statement, so how does MRCP 32(a) mesh with MRE 804(a), which creates the hearsay exception for persons deemed unavailable to testify? If you will read MRE 804(a), it is clear that the mere status of medical-doctorhood does not automatically fit one into any of the six definitions of unavailability set out in subsection (a). Nor does that status automatically fit into any of the hearsay exceptions in subsection (b). It may be that the doctor’s statement could be qualified as an exception under subsection (b)(5), but that would require a finding by the court, after prior notice by the offering party to counsel opposite.
The answer is that the MRE controls. That’s what MRE 1003 states: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”
This gap between the two rules caught a party unprepared in the case of Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 219 (Miss. App. 2012), in which the trial judge disallowed the expert testimony via deposition per MRCP 32(a) where there was no proof of unavaiability as defined in MRE 804. The appellant unsuccessfully argued that MRCP 32(a) allowed the introduction. The COA held, to the contrary, that the MRE provision controlled.
Don’t assume that, just because you have gotten that doctor’s deposition, it will automatically be admissible in lieu of the doctor’s personal testimony. To do that, you will still have to prove the doctor’s unavailability as defined in MRE 804. That may be something you can achieve via requests for admission, or by stipulation, or by making a record.
Oh, and don’t overlook (1) that you have to plant somewhere in the record enough proof to satisfy the judge of the doctor’s qualifications to testify as an expert in the first place, and (2) that MRCP 32(a) applies only to medical doctors, not to PhD clinical psychologists. Those were two stumbling blocks for the plaintiff in Parmenter.
Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
Equitable Distribution of Hidden Assets
June 26, 2013 § 2 Comments
What do you do when one party hides assets she claims are separate, and refuses to divulge their whereabouts? You divide them anyway. At least that is what happened in Wilson v. Wilson, decided June 11, 2013, by the COA.
Penny and Gregory Wilson had the kind of financial arrangement that one sees from time to time in a divorce case. Penny made most of the income, apparently, and the parties maintained completely separate banking and finances. Gregory paid Penny a sum that they agreed was one-half of the household expenses, and some extra money when he worked odd jobs or when Penny wanted to go on vacation. One might say that Gregory was renting his marriage.
Penny was quite the financial wizard. She had managed to accumulate more than $200,000 in a credit union account, but she withdrew the money before trial and, according to the COA opinion, she ” … declined to reveal where she had placed the funds from that account” (¶ 4). She also managed to squirrel away some cash in several CD’s, but she cashed those in also, and when asked where the cash was, she ” … refused to reveal its location to the chancery court” (¶ 6).
Now, let’s stop right there.
What exactly is any self-respecting chancellor to do when confronted with a party who blatantly and wantonly refuses to comply with the express dictates of UCCR 8.05?
Rule 8.05(a) requires these disclosures:
A detailed written statement of actual income and expenses and assets and liabilities, such statement to be on the forms attached hereto as Exhibit “A”, copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed; and, a general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable …
There is no exception for separate property, or what one claims to be separate, or any other financial information. The rule specifically requires disclosure of actual income and expenses, as well as assets and liabilities, without exception.
The rule also states that:
The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties.
What the chancellor chose to do here was to divide the assets between Penny and Gregory, over Penny’s protestation that Gregory had not contributed to their accumulation, and that they were separate. In affirming the chancellor’s ruling, the COA pointed out that the burden was on Penny to prove the non-marital character of the assets (¶ 14), which she failed to do.
I guess that the chancellor decided that Penny had, in fact, disclosed the assets as required in UCCR 8.05, to the extent that she subjected them to adjudication, and her attempt to conceal them would not shield them from execution. Still, I find it troubling that a party could take the stand and expressly refuse to be candid and forthright about her assets, for a couple of reasons:
- There already exists a “fudge factor” in most financial statements. It’s not uncommon for parties to overestimate their expenses, overlook overtime and bonuses, and minimize self-employment income. When a party takes the stand and professes to be hiding assets, that kicks it up to an entirely different level.
- When one hides assets, no one knows for sure exactly how much money or value we are dealing with. Penny disclosed that there was $217,000 in the credit union account, but if she divulged the institution and account number, discovery might have found the real balance to be more like $300,000. And there is nothing in the COA opinion to show that Penny ever told the balance that had been in the CD’s.
I can’t say that I would have overlooked Penny’s intransigence.
I also don’t understand how Gregory’s lawyer did not raise cane before trial over the secretion of more than $200,000 in cash and CD’s. Gregory had a substantial stake in establishing their true value. The chancellor awarded him 40% of the credit union money. There is a big difference between 40% of 200,000 and 40% of $300,000.
THE PRICE OF ADMISSION
June 11, 2013 § 5 Comments
We all know that MRCP 36 dealing with Requests for Admission (RFA) has some sharp teeth that can inflict painful, if not fatal, wounds on your case. R36(b) says that any matter admitted is “conclusively admitted,” unless the court allows withdrawal or amendment of the response.
The scope and dire effect of that “conclusively admitted” language was explored in the COA case of Aydelott v. Quartaro, decided June 4, 2013. The case at trial was one for grandparent visitation, based on a claim that the grandparents had established the statutorily-required relationship with the grandchildren and had provided support. The chancellor allowed the Quartaros to testify contrary to their admissions, which had been neither withdrawn or amended.
So, was the chancellor’s ruling an inconsequential procedural matter not rising to the level of error, or did it warrant reversal? Here’s how Judge Maxwell answered the question:
¶16. First, the fact the Quartaros had not established a viable relationship had been “conclusively established” through the Quartaros’ responses to the Aydelotts’ requests for admissions made under Rule 36 of the Mississippi Rules of Civil Procedure. The Aydelotts had requested both Dorothy and Jack admit they “have not provided financial support for the minor children.” Both gave the same response and “admit the allegations contained in Request for Admission No. 12 due to the fact that [their] daughter throws the things away that the Plaintiff buys for the children.” The Quartaros were also asked to admit they “have not visited with the minor children in the last two years” and “have never had frequent visitation with the minor children which included overnight visits for a period of at least one year.” They also admitted they had never had frequent visitation, because Shassidy would not let them. Under Rule 36(b), “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The Quartaros never moved to have their admissions withdrawn or amended. So the fact they had never contributed financially to or had frequent visitation with their granddaughters—and thus had never established a viable relationship—had been conclusively established. See In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433 (¶33) (Miss. 2009); Boyd v. Boyd, 83 So. 3d 409, 416 (¶21) (Miss. Ct. App. 2011).
¶17. Further, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence[.]” Gilcrease v. Gilcrease, 918 So. 2d 854, 858 (¶5) (Miss. Ct. App. 2005). Here, the chancellor seemingly ignored the admissions and permitted contradictory testimony that the Quartaros had contributed financially—by allowing Shassidy’s mobile home to be placed on their land—and had frequently visited Acelynn prior to the rift. This was clearly error. While Rule 36 gave the chancellor discretion to permit withdrawal or amendment of the admissions—and is silent about how and when the Quartaros could move for withdrawal or amendment—the fact remains that the Quartaros never moved for withdrawal or amendment, so the lack of financial contribution or frequent visitation were deemed admitted. See Boyd, 83 So. 3d at 416-17 (¶¶21-22).
¶18. We acknowledge that, in the context of child custody, this court has viewed the error of failing to recognize an admitted matter as established and permitting contradictory evidence as merely procedural. Gilcrease, 918 So. 2d at 859 (¶¶8-9). In Gilcrease, when a mother admitted, under Rule 36, that it was in her child’s best interest that custody be awarded to the father, this court found the chancellor’s refusal to deem the best-interest issue admitted was merely a procedural error “made with the proper result in mind.” Gilcrease, 918 So. 2d at 859 (¶9). Because “[c]hild custody is a judicial determination” and not “merely [an] evidentiary matter,” this court held that it would not reverse based on the failure to recognize matters deemed admitted under Rule 36 “absent some other mistake in the chancellor’s substantive decision[-]making process.” Gilcrease, 918 So. 2d at 859 (¶¶8-9).
¶19. Grandparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation. Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” Leverock, 23 So. 3d at 432 (¶28) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Mindful of this tenet, even if we deemed the chancellor’s failure to recognize the Quartaros’ admissions under Rule 36 as merely procedural, we still must reverse due to a second, substantive error—the chancellor’s finding that a viable relationship may be established based on the grandparents’ desire to establish a relationship with their grandchildren.
The decision went on to say that the mere thwarted desire to establish a relationship is not enough.
This case makes clear that inattention to timely supplementation of your discovery can cost your client big, even to the extent of getting a win turned on its head. If in trial preparation or any point before you believe the prior answers to RFA’s are incorrect and too restrictive, move for leave to amend.
Also, pardon me for sounding harsh, but I think the responses to the RFA’s might have been too “cute.” For example, intead of admitting that they had not supported the children because the mother threw things away, I think it would have been quite accurate and truthful to deny it something like this: “Denied as stated. We have bought numerous things for the children, but our daughter has thrown them away.” Sometimes, in that urge to strike back, clients say things that come back to haunt them. That’s what it looks like happened here.
If you try any grandparent visitation cases, you need to be fully aware of the two major categories of cases, as well as the Martin v. Coop factors. Merely because you have grandparents who are willing to pay you a retainer to try for visitation does not mean they have a viable case.
THE PRICE OF FAILING TO GIVE A COMPLETE ANSWER TO THE EXPERT INTERROGATORY: $3,603,712
September 20, 2012 § 4 Comments
What is the price of numerous discovery violations, including failure to make timely disclosure of the substance of the expert’s expected testimony and failure to supplement seasonably?
In Ballard Realty, et al. v. Ohazurike, et al., decided September 6, 2012, the MSSC reversed a jury verdict of $3,602,712 for those very failures on the part of the plaintiffs to designate their expert properly and give a complete answer to the expert witness interrogatory.
The Ohazurikes had designated a witness, Dr. Glover, and answered the rest of the usual expert interrogatory that their expert was …
expected . . . to testify to all things in her evaluations and opinions regarding the valuation of the lost income of the Plaintiffs and as to other things regarding the present value calculations and potential economic value and profitability of Plaintiffs company Upstart Games and the lost value of Plaintiff’s damages intellectual property board games.
The Ohazurikes attached a copy of the expert’s curriculum vitae (CV) as an exhibit to their designation of experts and added that “[a] copy of Dr. Glover’s report will be forwarded once it is received.” It was not until only five days before trial, on morning of the day that the expert was to be deposed that the report was received by opposing counsel. That report for the first time disclosed that the expert expected to project damages in excess of $15 million.
The defendants did file various motions with the court to try to get the expert testimony excluded, and they did object at trial based on the discovery violations, all to no avail. There was no other evidentiary basis in the record other than this particular expert’s testimony to support the $3 million-plus verdict, which the supreme court reversed.
Justice Randolph’s opinion explained:
¶14. We find that the trial court abused its discretion by allowing Glover to testify despite numerous discovery violations, including failure to timely disclose the substance of Glover’s expected testimony and to seasonably supplement discovery responses, and allowing the witness to give previously undisclosed testimony at trial. Mississippi Rule of Civil Procedure 26(b)(4) provides that “[a] party may through interrogatories require any other party to [1] identify each person whom the other party expects to call as an expert witness at trial, [2] to state the subject matter on which the expert is expected to testify, and [3] to state the substance of the facts and opinions to which the expert is expected to testify and [4] a summary of the grounds for each opinion.” Miss. R. Civ. Proc. 26(b)(4)(A)(i). Additionally, Rule 26(f) provides that “a party who has responded to a request for discovery with a response that was complete when made . . . is under a duty seasonably to supplement that party’s response with respect to any question addressed to . . . the subject matter on which [a person expected to be called as an expert witness] is expected to testify, and the substance of the testimony.” Miss. R. Civ. Proc. 26(f). We have provided that “[t]he failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (citation omitted)
¶15. The Ohazurikes failed to comply with Rule 26. In their original designation of experts, they named Glover as an expert witness and identified the subject matter of her opinions, but failed to state the substance of the facts and opinions to which she was expected to testify or to provide a summary of the grounds for her opinions. Ohazurikes did not provide the Defendants with the substance of Glover’s opinion until the morning of her deposition, five days prior to trial. The Ohazurikes’ disregard for the rules of discovery continued to trial, when they violated Rule 26(f) by introducing for the first time a new opinion without having amended or supplemented their discovery responses. In Hyundai Motor America v. Applewhite, 53 So. 3d 749 (Miss. 2011), we provided that, where a party had failed to amend or supplement its discovery responses with material changes to an expert’s opinion, the trial court’s refusal to grant any relief was an abuse of discretion warranting reversal, because “[w]e do not condone trial by ambush. [The defendant] was entitled to full and complete disclosure of the plaintiffs’ expert testimony. . . .” Hyundai, 53 So. 3d at 759. The introduction of an entirely new lost-profits estimate clearly was a material change to Glover’s opinion, of which the Defendants were entitled to full and complete disclosure seasonably before trial. We refuse to condone the Ohazurikes’ failure to comply with discovery requirements. Accordingly, we find that the trial court’s refusal to grant the Defendants any relief for the Ohazurikes’ failure to comply with the mandates of Rule 26 was an abuse of discretion and, combined with other errors to be discussed infra, warrants reversal.
Those “other errors” will find their way into another post.
Experts appear often in chancery. They testify to the matters like the best interest of children, parties’ and children’s mental and physical health, land lines, valuations, damages, surveys, handwriting, water flow, investments, and on and on. Usually, when an expert is involved, there is a lot at stake, either emotionally or financially, or both.
I have not seen many disputes over the adequacy and/or timing of the expert disclosures. When they happen, though, the results can be cataclysmic. And when they are not cataclysmic at trial, they can turn out to be up the line, as the Ohazurikes learned.
I have refused to allow an expert to testify who was not timely designated 60 days before trial per UCCR 1.10. I even refused to allow an expert to testify where there was no answer at all to the expert interrogatory (the actual answer was to the effect that “None at this time. Timely supplementation will be made.” It wasn’t). But I have not yet had to weigh the adequacy of the substantive questions.
Read this case closely for what it can teach you about what won’t cut it as an expert-witness response, as well as what it can teach you about how to make a record of objections that will do the job on appeal.
DISCOVERY OBJECTIONS THAT WASTE EVERYONE’S TIME
September 12, 2012 § Leave a comment
Most lawyers propound an interrogatory or two that seek the substance of the other side’s case and what witnesses there are. The query looks something like this:
“State each and every fact, circumstance and event upon which you base the claim in Paragraph 4 of your Complaint for Divorce that the dfendant has been guilty of habitual cruel and inhuman treatment, stating for each the date, time and place of occurrence and each witness thereto.”
Some lawyers, I guess to buy more time, file a response that looks like this:
“Objection. Overbroad and unduly burdensome.”
Or
“Objection: accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”
Or, worse:
“Objection.”
Too often these inadequate and lazy objections wind up on a busy judge’s desk, and the judge is called upon to order the lawyer to do what he or she should have done in the first place.
MRCP 33(b)(4) requires that each objection be stated with specificity. In Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (Miss. 2007), the MSSC said that “General objections applicable to each and every interrogatory … are clearly outside the bounds of this rule.”
Not only that, but the rule specifically says that an objection does not necessarily relieve you of the duty to respond. It says that if the request is only partially objectionable, you must state the extent to which it is objectionable and the reason for the partial objection, and then you must proceed to respond to the unobjectionable part.
If you take the position in good faith that you should object to going back through thirty years’ worth of events, then state your objection and state that you are providing the requested information for, say, the past five years because it is the most relevant period, and it is unduly burdensome to go back any further. The specific language of Rule 33(b)(4) requires exectly that.
If you object that your client cannot remember every minute detail, but that you are providing as best you can the dates and identification of the events, say that. Don’t just make a blanket objection.
If you think it’s unreasonable to provide 360 bank statements (that’s 30 years’ worth) because it’s too burdensome, say so, and offer to provide what you think is a reasonable number. That is what the rule contemplates.
So what do you do if you’re confronted with those kinds of objections? Well, you don’t want to get to trial and face the argument that the other side should be able to proceed unfettered because you never asked the court to rule on the objections. I would file a motion to compel and ask the judge to rule on them and set reasonable parameters (I would also make more reasonable requests in the first place, but that’s another story).
I wonder whether all those boilerplate objections that have no conceivable application in chancery are sanctionable. It would be interesting to hear the argument on that.
RFA’S, SANCTIONS AND THE “GOTCHA” EFFECT
June 4, 2012 § Leave a comment
Let’s say you are in the discovery stages of a child support modification case. Along with all of the other, usual discovery you send counsel opposite an MRCP 37 request for admission (RFA) to admit that the attached document is a “true, correct and authentic” copy of the minor child’s medical bills for the period 2008-2012. The bills would document in part the child’s increased expenses over the two years following the divorce. Because you are seeking authentication, you attach only the bills themselves, and not any self-authenticating certificate.
A couple of weeks later, you receive the response: “Denied. Respondent is without sufficient information to determine whether Exhibit A is a true, correct and authentic copy of the document which it purports to be.”
Since opposing counsel would not admit authenticity, you do the heavy lifting to get the documents authenticated at trial, and — a little p.o.’d at the extra work — you then ask the chancellor to impose sanctions, per MRCP 37(c), which states that the judge “shall” impose sanctions for failure to admit, unless the court finds certain factors present. Much to your chagrin, the trial judge overrules your motion, saying ” … the MRE provide procedures for authenticating medical records and entering them into evidence that do not involve the party opposite admitting to them. Further, the court recognizes that [your opposing party] did not prepare the records and is not the custodian.”
The scenario above is what happened in the case of Rhoda v. Weathers, decided by the MSSC on March 8, 2012, which reversed in part the COA’s previous ruling in the case. The MSSC decision is not designated for publication in the permanent reports, and is subject to being withdrawn, so you may not cite it as authority (rehearing was denied May 24, 2012). Chief Justice Waller’s opinion, though, has a thoughtful discussion of the real purpose for and approach of Rule 37 and the provision for sanctions. Here are some excerpts that explain the court’s reasoning:
¶6. A trial court’s decision whether or not to impose sanctions for alleged discovery violations is reviewed for abuse of discretion. Jones v. Jones, 995 So. 2d 706, 711 (Miss. 2008). The trial court’s decision should be affirmed unless a reviewing court has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Id. (quoting Cooper v. State Farms Fire & Cas. Co., 568 So. 2d 687, 692 (Miss. 1990)).
¶7. When a party fails to admit a matter or the genuineness of a document that is later proven at trial, the requesting party may move the court to require the other party to pay the reasonable expenses the requesting party incurred in proving the matter or document. M.R.C.P. 37(c). The Rule states that the court “shall” make the order, unless it finds: 1) that the request was objectionable under Rule 36(a); 2) that the admission sought was of no substantial importance; 3) that the party failing to admit had reasonable ground to believe he might prevail on the matter; or 4) that there was other good reason for the failure to admit. M.R.C.P. 37(c).
¶8. The Court of Appeals held that none of the exceptions listed above applied to the requests. Rhoda, 2011 WL 3452121, at *6. The Court characterized Rhoda’s request as requesting that Weathers “admit the genuineness and admissibility of [Rhoda’s] medical records.” Id. However, the Court’s opinion did not specifically address what comprised these “medical records.” In fact, Rhoda requested that Weathers admit to the genuineness and admissibility of medical bills and various prescription receipts. However, the authenticity of these documents and their admissibility into evidence at a civil trial were matters outside of Weathers’s knowledge, thereby making her denials of the requests appropriate and not subject to sanction.
¶9. The purpose of requests for admission under Rule 36 is “to determine which facts are not in dispute.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002). “It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” Id. ¶10. Mississippi Rule of Evidence 803(6) provides that business records may be admitted at trial. However, for the records to be admissible, the rule requires that the custodian or “other qualified witness” testify to their authenticity. M.R.E. 803(6). Otherwise, the document must be self-authenticating pursuant to Rule 902(11). M.R.E. 803(6). For a document to be self-authenticating, it must include a “written declaration under oath or attestation” from a custodian or other qualified witness that meets the authentication requirements of Rule 803(6). M.R.E. 902(11). [Emphasis in bold added]
¶11. Had Rhoda attached proper attestation of the documents’ authenticity when he propounded his requests, then Weathers would have had no good reason to deny the documents’ genuineness and authenticity. However, in his request, Rhoda failed to attach to his medical bills any affidavits or other written declarations by the custodians of these bills, or any other qualified witnesses, attesting to their authenticity. In essence, Rhoda’s requests sought to contravene the Mississippi Rules of Evidence. Rather than properly authenticating his medical bills according to the Rules of Evidence, he attempted to authenticate them by “artifice or happenstance.” As Weathers was neither the custodian of the documents nor a qualified witness, she did not have the requisite information to determine whether the bills were true, correct, and authentic copies of what they purported to be, nor did she have knowledge of how the bills were prepared. Weathers stated as much in her responses to the requests for admission. As such, she had “good reason” for failing to admit to Rhoda’s request. See M.R.C.P. 37(c); 8 Wright & Miller, Federal Practice and Procedure § 2290, 629 n.15 (“Since a statement of reasons why the party is unable truthfully to admit or deny is expressly permitted as a response to a request . . . it would be quite anomalous if a party who has stated valid reasons why this is so should be required to pay his opponent’s expenses.”). Recognizing this, the trial court refused to sanction Weathers for failing to admit to Rhoda’s requests. Under these facts, it cannot be said that the trial court abused its discretion in denying Rhoda’s motion for expenses. See Estate of Bolden ex rel. Bolden v. Williams, 17 So. 3d 1069, 1072 (Miss. 2009) (“A trial court has considerable discretion regarding discovery matters.”).
Some lawyers like to play “gotcha” games in litigation, and MRCP 37’s strict 30-day deadline and punitive provision for sanctions are tailor-made for that approach. Rhoda makes clear, however, that the courts prefer to hew to the true purpose of the rule, which is to help winnow out the facts that are not in dispute, and they reject attempts to escape adjudication of the facts by means of artifice or happenstance.
The Cooper case, cited in Rhoda, above, includes a discussion of the sanctionability of RFA’s addressed to the ultimate issue. In that case, the ultimate issue was whether the fire loss was due to arson. The court said at p. 689:
The larger point being that RFA’s aimed at the ultimate issue are going to be deemed by the court to be ineffective, and you need to be prepared to make your case.
[Thanks to COA Judge Ken Griffis for bringing the Rhoda case to my attention]
ADMISSION OF ELECTRONICALLY STORED INFORMATION INTO EVIDENCE
May 29, 2012 § 3 Comments
Emails, cell phone text messages, FaceBook LinkedIn and MySpace posts and the like, electronic bulletin board comments, metadata, internal organization communications, computerized business and public records and documents, websites, chat room content, computer animations and simulations, digital photographs, market reports and commercial publications …
… all are finding their way into our court proceedings on a more frequent basis. That’s because people are increasingly using these forms of electronically stored data to communicate, do business, save information, and promote their businesses and personal interests.
Chancellor Ed Patten made an informative presentation to the chancellors at the Spring judges’ meeting that introduced us to the evidentiary concerns that are raised by all of these electronically stored data.
Just about everything you need to know about introducing these items into evidence is analyzed in the case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (USDC Md. 2007), a 58-page opinion that exhaustively considers all aspects of admissibility, including authentication, hearsay, best evidence rule and more. It’s a federal case, but the rules that underpin it are, for the most part identical to, or nearly identical to, the MRCP and MRE.
The decision also elucidates various rules that allow authentication by admission, which should give you some ideas about using requests for admission and depositions to do that job for you in discovery while you’re fishing for other info.
If you have a case involving introduction of these kinds of evidentiary matter, I encourage you to read the Lorraine decision and find the analogous Mississippi rules. If you use the latest MISSISSIPPI RULES ANNOTATED or do a little digging, you can come up with a few cases to toss onto the bench once the other side objects. The judge will be impressed and gratified (and maybe surprised) that a lawyer has done that homework before trial, so much so that you will likely get those documents into evidence.
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