The Public
Lawyer
Public Lawyers
Nevada Supreme Court Cases Section
October 2008
Baldonado v. Wynn Las Vegas violated Nevada labor laws, in-
No. 48831 (October 9, 2008) cluding NRS 608.160, sought
“This opinion addresses several relief in the district court.
issues arising in the context of
Nevada’s employment law. We The district court determined
primarily focus, however, on that no private cause of action
three important and novel ques- existed by which appellants
tions: (1) whether NRS 608.160, could pursue their claims for
which prohibits employers from statutory violations and con-
taking employee tips, implies a cluded that appellants’ at-will
private cause of action to enforce employee status precluded any
its terms; (2) whether, in the challenge to the employment
event that no private cause of policy on breach-of-contract
action exists, declaratory relief is grounds. Consequently, the
nonetheless available to employ- court ruled against the dealers, Inside this issue:
ees who allege that the statute’s in favor of the casino. Thereaf-
Ninth Circuit Cases 7
terms were violated by an em- ter, the court denied the casino’s
ployment policy; and (3) whether motion for attorney fees under
Houston v. Reebok 18
those employees asserted a vi- NRS 18.010(2)(b) (frivolous International
able breach of contract claim claims). Appellants have ap-
eDiscovery Cases 20
based on the employer’s unilat- pealed from the district court’s
eral modification to the employ- written decision ruling in the
ment policy. casino’s favor, and the casino
New Federal Rule 22
has appealed from the order de- of Evidence 502
Appellants are table game deal- nying it attorney fees.
How Not to Get Ad- 23
ers employed at a Las Vegas, mitted
Nevada, casino. In 2006, the ca- After considering the parties’
sino modified its employment arguments, we conclude the fol-
policy to require the dealers to lowing. First, the Nevada La- Compiled and edited by
Justin Tully
share customer tips with persons bor Commissioner, who is en- justin.tully@lvvwd.com
in certain lower-level manage- trusted with the responsibility
ment positions. Appellants, be- of enforcing Nevada’s labor
lieving that the modified policy laws, generally must adminis-
October 2008 Page 2
Nevada Supreme Court Cases
tratively hear and decide complaints that arise un- actual losses should have been offset by
der those laws. Accordingly, we will imply no pri- $33,084, the amount Winchell recovered under
vate cause of action to enforce NRS 608.160, or the insurance policy. Finally, we conclude that
the other labor statutes at issue here, in the district a new trial is not warranted here. Accordingly,
courts in the first instance. Second, since declara- we affirm the judgment of the district court in
tory relief is not available when an adequate statu- part, reverse in part, and remand for proceed-
tory remedy exists, appellants lacked standing to ings consistent with this opinion.”
seek such relief. Third, since appellants are at-will
employees, the employment terms of whom are Knipes v. State No. 49663 (October 2, 2008) “
generally subject to unilateral prospective modifi- In this appeal, we consider whether hearings to
cation by the employer, and because as a matter of determine the admissibility of juror questions
law they had no enforceable contract concerning should be conducted on the record as part of the
the future distribution of their tips, they failed to procedural safeguards that were prescribed in
demonstrate a genuine dispute with respect to Flores v. State and whether the failure to com-
whether the employment policy modifications con- ply with these safeguards is reviewable for
stituted a breach of contract. Accordingly, after harmless error. For the reasons set forth below,
determining that the district court did not abuse its we require hearings regarding the admissibility
discretion in denying attorney fees, we affirm the of juror questions to be conducted on the re-
district court’s decision and order denying attorney cord. We also conclude that the failure to prop-
fees.” erly administer the required procedural safe-
guards for juror questioning amounts to noncon-
Winchell v. Schiff No. 47067 (October 9, 2008) “In stitutional trial error, and as such is subject to
this appeal and cross-appeal, we primarily consider harmless-error review under NRS 178.598.
whether actual losses resulting from the conver-
sion of inventory include the value of a lost busi- In this case, the district court permitted jurors to
ness. We conclude that full recovery for actual ask witnesses a number of questions but rou-
losses includes not only the converted inventory, tinely resolved objections to those questions in
but also resulting damages such as the value of a unrecorded bench conferences held within the
lost business.” jury’s presence. On an isolated occasion, the
district court also asked four juror questions
“We conclude that substantial evidence supports without first conducting one of these unre-
Winchell’s claim for conversion and the jury’s corded hearings. Although the district court
award of actual damages for the resulting loss of entertained juror questions improperly in these
inventory and business. We also conclude that respects, we conclude that asking the improp-
Winchell failed to allege facts demonstrating erly vetted questions at trial was harmless since
claims for breach of the covenant of quiet enjoy- none of the questions elicited testimony that
ment, and trespass, and to show that punitive dam- prejudicially impacted the jury’s verdict. Ac-
ages were appropriate. cordingly, we affirm the district court’s judg-
Further, additur is not warranted in this case be- ment of conviction.”
cause Schiff’s evidence as to additional damages
was sufficiently undermined during trial. How- Cox v. Dist. Ct. No. 50118 (October 2, 2008) “
ever, the jury’s award of damages for Winchell’s This original proceeding stems from an appeal
Page 3 The Public Lawyer
Nevada Supreme Court Cases
in a case concerning a complaint for partition cial sale of petitioners’ real property. Accord-
or sale of certain Clark County real property. ingly, the judicial sale is void, and we grant this
In that case, this court reversed the district petition.”
court’s judgment transferring the property from
petitioners to real parties in interest through a M.C. Multi-Family Dev. v. Crestdale Assocs. No.
judicial sale and remanded the matter to the 48347 (October 2, 2008) “ In this case, we pri-
district court for further proceedings. When marily consider whether intangible property, in
petitioners took steps to undo the judicial sale particular a contractor’s license, can be the sub-
in light of the court’s order, real parties in in- ject of a claim in tort for conversion. In doing so,
terest obtained a temporary restraining order we adopt the California definition of “property
from a different district court department, bar- rights” and the Restatement (Second) of Torts
ring petitioners from further challenging the rule defining conversion of “intangible personal
judicial sale. The temporary restraining order property,” and expressly reject the notion that
was premised on the general principle that personal property must be tangible in order to
valid judicial sales to bona fide purchasers sur- give rise to a conversion claim. We therefore
vive appellate reversals. Petitioners are seek- conclude in this case that the mere fact that one’s
ing a writ of mandamus directing the district use of a contractor’s license does not physically
court to vacate its temporary restraining order, prevent others from using the same license does
allowing them to continue with their efforts to not preclude a plaintiff in a conversion action
reacquire the property. concerning alleged unauthorized use of the li-
cense from presenting the claim for determination
In considering this petition, we clarify that by a trial jury. Instead, we hold that the exercise
bona fide purchasers at judicial sales are not of a right that belongs to another may constitute
protected under the general principle that judi- an act inconsistent with the titleholder’s rights
cial sales survive appellate reversals if the dis- and may therefore satisfy the “wrongful domin-
trict court lacked jurisdiction to order the sale. ion” element of conversion. Accordingly, we
In this situation, judicial sales may be chal- conclude that the use of a corporate contractor’s
lenged collaterally or in remanded proceedings license by an individual for independent projects,
in the original action. without the permission of the entity named in the
license, may constitute a conversion when the li-
Here, before ordering petitioners’ property sold cense is the exclusive property of the individual
in the partition action, the district court im- or entity to which it is issued.”
properly denied petitioners’ motion to dismiss
the action pursuant to NRCP 41(e)’s require- Davidson v. State No. 48421 (October 2, 2008) “
ment that an action be brought to trial within In this appeal, we consider whether the district
five years from the date that a complaint is court can change a jury’s verdict from not guilty
filed. After the five-year deadline for bringing to guilty for a criminal charge based on a pur-
the case to trial expired, dismissal was manda- ported clerical error after the jury has been dis-
tory under that rule. Thus, we conclude that charged. We also address a clerical error in the
the district court lacked jurisdiction to take the judgment of conviction that precludes habitual
partition action to judgment and order the judi- criminal sentencing on one of the battery convic-
October 2008 Page 4
Nevada Supreme Court Cases
tions. Article 19, Section 3(2), additional time may be
added to what is otherwise provided for in Arti-
Regarding the verdict, we conclude that the Dou- cle 19 for the enactment of a submission dead-
ble Jeopardy Clause prohibits the district court line, which is the deadline reflected in NRS
from changing the jury’s verdict from not guilty 295.056(3). Thus, to determine whether NRS
to guilty for a criminal charge after the jury has 295.056(3) is constitutional, we must interpret
been discharged, even if the change is only to Article 19, Sections 2(4)’s and 3(2)’s language.
correct a purported clerical error. Therefore, the
district court in this case erred by changing the When Section 2(4) is read in conjunction with
verdict for the robbery charge at issue from not Section 3(2), Section 2(4)’s language is rendered
guilty to guilty. Consequently, we reverse one of ambiguous because there appears to be more
the robbery convictions. than one reasonable interpretation of Section
2(4)’s language. One reasonable interpretation
Regarding the judgment and sentence for battery, of Section 2(4) creates a fixed filing deadline,
we conclude that the judgment of conviction er- but a second equally reasonable interpretation
roneously treats one of the battery convictions allows for a flexible filing deadline. Since the
(count four) as a felony when the jury returned a constitutional provision’s language is ambigu-
finding of guilt for a misdemeanor on that count. ous, we review the legislative history of each
As a result, the district court erred in imposing a constitutional provision and the statutory provi-
habitual criminal sentence for that count because sion at issue, as well as Article 19’s constitu-
NRS 207.010 authorizes a habitual criminal sen- tional scheme, in an effort to harmonize Sections
tencing enhancement for convictions of crimes 2(4) and 3(2) to give Section 2(4)’s language its
involving fraud or intent to defraud, of petit lar- proper interpretation and effect.
ceny, or of a felony. We therefore remand for
the district court to amend the judgment of con- In light of the legislative history and considering
viction to show that count four is a misdemeanor Article 19’s constitutional scheme as a whole,
and to impose a lawful sentence for that count.” we determine that Section 2(4)’s language estab-
lishes a fixed filing deadline. Thus, the time pe-
We the People Nevada v. Secretary of State No. riod stated in Section 3(2) may be added to the
51735 (September 25, 2008) “ The primary issue fixed filing deadline under Section 2(4) to give
raised in this original petition is whether the cur- the Legislature a specific block of time within
rent version of NRS 295.056(3), which requires which it may establish a submission deadline for
initiative petitions that propose constitutional signature verification.
amendments to be submitted for signature verifi-
cation “not later than the third Tuesday in May,” Accordingly, we conclude that NRS 295.056(3)
is constitutional in light of Article 19, Sections impermissibly restricts the powers reserved to
2(4) and 3(2) of the Nevada Constitution. Arti- the people under Article 19 by establishing a
cle 19, Section 2(4) requires that initiatives pro- submission deadline earlier than what is other-
posing to amend the constitution must be filed wise permitted by Article 19, Sections 2(4) and
with the Secretary of State within a certain pe- 3(2) of Nevada’s Constitution and thereby di-
riod of time before a general election. Under rectly inhibiting the initiative process. NRS
Page 5 The Public Lawyer
Nevada Supreme Court Cases
295.056(3) is therefore unconstitutional, and we sequent purchasers of recently constructed homes
grant the petition for a writ of mandamus.” were precluded from the remedies that NRS
Chapter 40 provides, and this original petition for
a writ of mandamus followed.
ANSE, Inc. v. Dist. Ct. No. 51049 (September
25, 2008) “The constructional defect action un- In this original proceeding, then, we clarify
derlying this original writ proceeding, in which whether our definition of “new residence” in
we clarify the scope of NRS Chapter 40, con- Westpark precludes a homeowner who is not the
cerns approximately 1,200 residences in the Sun home’s first purchaser from seeking the remedies
City Summerlin community in Las Vegas, Ne- available under NRS Chapter 40 for construc-
vada. Petitioners moved the district court for tional defects in the home. It does not. To con-
partial summary judgment with respect to ap- clude otherwise undermines NRS Chapter 40’s
proximately 700 of those residences, arguing purposes to provide an expansive remedy for
that they did not constitute “new residences” for homeowners and protection for developers and
constructional defect purposes under NRS leads to disparate treatment among otherwise
40.615, which limits NRS Chapter 40 similarly situated homeowners. Instead, any
“constructional defect” remedies to “new resi- home that is a product of original construction,
dence[s].” unoccupied as a dwelling from the completion of
its construction until the point of its original sale,
In asserting that certain residences at issue in constitutes a “new residence” for NRS Chapter 40
this case did not constitute “new residence[s]” purposes, and thus, subsequent owners may bring
under NRS 40.615, petitioners primarily relied an NRS Chapter 40 action, so long as it is insti-
on our decision in Westpark Owners’ Ass’n v. tuted within the limitation period provided by the
District Court, in which we defined “new resi- applicable statute of repose.”
dence” for constructional defect purposes as “a
product of original construction that has been Ransdell v. Clark County No. 48592 (September
unoccupied as a dwelling from the completion 25, 2008) “ This appeal raises the issue of
of its construction until the point of sale.” Ac- whether sovereign immunity principles apply to
cording to petitioners, because approximately shield a county from civil liability in an action to
700 of the residences at issue below were occu- recover damages following abatement of a nui-
pied as dwellings before the residences’ subse- sance. Although Nevada has waived its sovereign
quent owners obtained title to the homes, the immunity by statute, exceptions to the waiver ap-
residences did not constitute “new” residences ply, including one that protects political subdivi-
within the scope of NRS 40.615 and therefore sions of the state from liability for their discre-
were not subject to constructional defect actions tionary acts. As we recently adopted in Martinez
under NRS Chapter 40. Petitioners thus con- v. Maruszczak the federal two-part test for deter-
tended that they were entitled to summary judg- mining whether the discretionary-function excep-
ment as to their NRS Chapter 40 liability on tion to the general waiver of sovereign immunity
claims related to those residences. The district applies to protect a government entity from liabil-
court ultimately denied the summary judgment ity, we use the test here to determine if a county’s
motion, noting that it was unconvinced that sub- actions in abating a property of a nuisance are im-
October 2008 Page 6
Nevada Supreme Court Cases
mune from civil liability. Because a county’s ac- contains constructional defects in its improve-
tions in abating a nuisance satisfy both criteria of ments. The record in this case demonstrates
the test, we conclude that immunity applies to that the State Board of Equalization exercised
shield the County from liability here and, there- its best judgment in raising the capitalization
fore, the district court properly entered judgment rate to assess appellants’ property values in
in favor of the County.” light of the complexes’ constructional defects.
We thus affirm the district court’s order deny-
Canyon Villas v. State No. 47994 (September 25, ing judicial review of the State Board of
2008) “In this appeal, we consider the appropriate Equalization’s decision.”
method for assessing the taxable value of income-
producing real property when the property’s im-
provements contain constructional defects. This
case arises from respondent the State Board of
Equalization’s determination with respect to the
2004-2005 tax assessment of appellants’ proper-
ties. Each appellant owns a property containing an
apartment complex. According to appellants, the
2004-2005 tax assessment of their properties did
not properly account for constructional defects
present in their apartment complexes. The State
Board of Equalization asserts that the construc-
tional defects were properly accounted for in deter-
mining the full cash value of appellants’ properties
by adjusting the capitalization rates in the income
capitalization method used under NRS
361.227(5)(c) to determine the properties’ full cash
value.
In general, the income capitalization method for
valuing property evaluates the following two fac-
tors to determine a property’s full cash value: (1)
the annual income that a hypothetical buyer ex-
pects to receive from the property, and (2) the rate
at which the buyer expects a return on his invest-
ment in the property or the capitalization rate. Be-
cause those two factors account for the income a
property is expected to generate and the condition
of improvements on the property, including any
constructional defects, the income capitalization
method is an appropriate method for assessing the
full cash value of income-generating property that
Page 7 The Public Lawyer
NINTH CIRCUIT CASES
Porter v. Osborn No. 07-35974 (October 20, cupied by Casey, who apparently had been
2008) “This case raises the question of the appro- asleep in the driver’s seat. In a rapidly escalat-
priate standard of culpability to apply to a police ing confrontation, the troopers shouted at a star-
officer who kills a suspect in the course of inves- tled and confused Casey to get out of his car.
tigating a suspicious car parked alongside an When he failed to comply, both troopers
Alaska highway, under circumstances that sug- quickly exited their cars and drew their guns,
gest the officer may have helped to create an with Osborn taking the lead in approaching the
emergency situation by his own excessive actions. car to get Casey to comply. When Casey rolled
It comes in the context of a lawsuit brought by the down his window but did not move to get out,
parents of the victim, claiming the officer violated Osborn pepper sprayed him through the open
their Fourteenth Amendment substantive due window. Casey reacted in pain and began to
process right of familial association with their de- drive the car slowly forward toward Whittom’s
ceased son. They contend the officer’s actions patrol car, at which point Osborn fired five
were so outrageous as to shock the conscience. shots at Casey, killing him. Whittom, ques-
The district court found that the parents presented tioned shortly thereafter by an investigator, ex-
sufficient evidence that the officer’s conduct vio- pressed his ‘shock’ that ‘shots were fired . . . in
lated their constitutional rights to warrant a jury a situation like this.’
trial, but we are compelled to conclude it did so
by applying an incorrect standard of culpability to The district court dismissed all state law claims
the officer’s actions. We therefore reverse and and all claims against Whittom, none of which
remand for reconsideration of the officer’s culpa- are before us on this appeal. As to the Four-
bility under the proper standard and whether he is teenth Amendment claim, the district court
entitled to qualified immunity on summary judg- found that there were enough disputed facts to
ment. preclude granting Osborn summary judgment
on qualified immunity grounds, concluding that
“The plaintiffs and appellees are Arthur J. and a jury could find that Osborn’s conduct shocked
Christie L. Porter (collectively ‘the Porters’), who the conscience under a clearly established
brought this suit after their adult son, Casey Por- ‘deliberate indifference’ standard of culpability.
ter, was fatally shot in a brief but tragic confron-
tation with two Alaska State Troopers. Among Osborn has appealed, arguing that his actions
several federal and state claims, the Porters prin- did not violate a constitutional standard, but
cipally claimed that their Fourteenth Amendment even if they did, the deliberate indifference
right of association was violated by the way in standard was not clearly established at the time.
which defendant-appellant Arthur J. Osborn We conclude that a different and more demand-
(‘Osborn’) and his fellow trooper Joseph Whittom ing standard of culpability than deliberate indif-
(‘Whittom’) handled the roadside incident that ference applies. Rather, in an urgent situation of
resulted in Casey’s death. As we discuss in more the kind involved here, the established standard
detail later, the troopers were responding to a call is whether Osborn acted with a purpose to harm
about an apparently abandoned vehicle parked in Casey without regard to legitimate law enforce-
a highway pull-out area. Osborn, who arrived on ment objectives. Whether a jury could find
the scene first, discovered the car was in fact oc- Osborn violated that standard is not clear on the
October 2008 Page 8
NINTH CIRCUIT CASES
record before us. Although Osborn appears to have justification for treating the employee differ-
helped create and even exacerbate the confronta- ently from any other member of the general
tion he then ended by deadly force, the parties and public, and (3) there is a genuine and material
the district court will need to readdress Osborn’s dispute as to the scope and content of plain-
summary judgment motion under the more strin- tiff’s employment duties. Accordingly, we re-
gent purpose to harm standard. We therefore re- verse the grant of summary judgment on
verse the court’s denial of qualified immunity and Posey’s First Amendment retaliation claim and
remand for further proceedings.” remand to the district court for further proceed-
ings consistent with this opinion.
Posey v. Lake Pend Oreille SC 07-35188 (October
15, 2008) “This case requires us to determine Hoffman v. Citibank (South Dakota), N.A. No.
whether, following the Supreme Court’s recent 07-55616 (October 14, 2008) “Plaintiff-
decision in Garcetti v. Ceballos, 547 U.S. 410 Appellant Laura Hoffman (‘Hoffman’) appeals
(2006), the inquiry into the protected status of the district court’s order compelling arbitration
speech in a First Amendment retaliation claim re- in her class action suit against her credit card
mains a question of law properly decided at sum- company, Defendant-Appellee Citibank (South
mary judgment or instead now presents a mixed Dakota) N.A. (‘Citibank’). The district court
question of fact and law. found that Hoffman was party to an arbitration
agreement that waived her right to proceed on
Plaintiff Robert Posey sued Lake Pend Oreille a class basis. Applying South Dakota law —
School District No. 84 (the ‘School District’), ar- the law chosen in the credit card agreement —
guing that by eliminating his job, the School Dis- the district court enforced the class arbitration
trict retaliated for his prior speech, in violation of waiver and ordered Hoffman to proceed on a
the First and Fourteenth Amendments to the non-class basis. Nonetheless, the district court
United States Constitution. The district court found substantial grounds for a difference of
granted summary judgment in favor of the School opinion regarding a controlling issue of law,
District, concluding— purely as a matter of law— ‘whether California law or South Dakota law
that the speech in question had been spoken pursu- should be used to determine the enforceability
ant to Posey’s job responsibilities and thus in his of the arbitration agreement,’ and issued an
capacity as a public employee, and that it was order for immediate appeal. The case was
therefore not constitutionally protected. Posey ap- stayed without completion of discovery. We
peals. We have jurisdiction under 28 U.S.C. § granted permission for the appeal, and we have
1291. jurisdiction under 28 U.S.C. § 1292(b). Be-
cause we are persuaded that the district court’s
We conclude that, following Garcetti, the inquiry order compelling arbitration erroneously relied
into whether a public employee’s speech is pro- on cases that do not properly apply California
tected by the First Amendment is no longer purely choice of law rules, we remand for a determi-
legal and presents a mixed question of fact and nation of whether California or South Dakota
law. Summary judgment is therefore inappropriate law applies to the class arbitration waiver.”
where, as here, (1) plaintiff has spoken on a matter
of public concern, (2) the state lacks an adequate United States v. Maes No. 07-10495 (October
Page 9 The Public Lawyer
NINTH CIRCUIT CASES
10, 2008) “Defendant-Appellant Margaret Maes lation of 38 C.F.R. § 1.218(b)(32). Maes
(‘Maes’) was stopped on Department of Veterans pleaded not guilty and moved to dismiss the
Affairs (‘VA’) property by a VA police officer possession charge, contending that she was im-
who had seen Maes driving the wrong way down properly charged under 21 U.S.C. § 844(a). She
a one-way street, and this bad driving incident argued that she should have been charged in-
had severe consequences for Maes. The officer stead solely, so far as drug possession was con-
who saw her going the wrong way summoned cerned, under 38 C.F.R. § 1.218(a)(7), a VA
another officer, who in turn observed drug para- regulation that reads: ‘The introduction or pos-
phernalia on Maes’s dashboard. Upon question- session of alcoholic beverages or any narcotic
ing, Maes admitted that there might be drugs in drug, hallucinogen, marijuana, barbiturate, and
the vehicle, and the officers searched the car. The amphetamine on [VA] property is prohibited,
search revealed a small bag of marijuana, bongs, except for liquor or drugs prescribed for use by
pipes, cleaning rods, and other drug parapherna- medical authority for medical purposes.’
lia.
A magistrate judge heard oral argument on
Maes was charged with one count of possession Maes’s motion to dismiss, and denied the mo-
of a controlled substance in violation of 21 U.S.C. tion in an order. Maes later withdrew her not-
§ 844(a), and with one count of driving in the guilty plea as to both counts, entered a condi-
wrong direction on a posted oneway street in vio- tional guilty plea, and received a fine of $1000
October 2008 Page 10
NINTH CIRCUIT CASES
and a special assessment of $25 for the first count 1058, slip op. 10033 (9th Cir. filed Aug. 8,
and a fine of $25 and a special assessment of $10 2008) (en banc). In reliance on that opinion, we
on the second count. Maes then appealed the mag- now issue our decision in this case. We deny the
istrate judge’s order to the district court, which petitions for review.”
held a hearing and later affirmed the magistrate
judge’s decision. Maes timely appealed to this Alaska Independence Party v. State of Alaska
Court, again arguing that she should have been No. 07-35186 (October 6, 2008) “Alaska re-
charged under the more specific VA regulation quires political parties to nominate candidates
instead of the general federal possession statute. for the state’s general election ballot in a state-
We conclude that the district court did not err by run primary, in which any registered member of
upholding the sentence under 21 U.S.C. § 844(a), a political party may seek the party’s nomina-
and we affirm.” tion. Nominees are then chosen by the vote of
party-affiliated voters and any other voters
Snoqualmie Indian Tribe v. Federal Energy Regu- whom the parties choose to let participate. The
latory Commission No. 05-72739 (October 7, Alaska Independence Party (‘AIP’) and the
2008) “The Snoqualmie Tribe petitions for review Alaska Libertarian Party (‘ALP’) contend that
of a decision of the Federal Energy Regulatory these laws burden their associational rights in
Commission (‘FERC’) granting Puget Sound En- violation of the First Amendment because they
ergy, Inc. (‘PSE’) a license to operate for another force them to associate with candidates who,
forty years the Snoqualmie Falls Hydroelectric they claim, are not members of their party or are
Project. The Tribe argues that FERC’s relicensing not ideologically compatible with the party. We
decision violates the Religious Freedom Restora- hold that Alaska’s primary system is justified
tion Act (‘RFRA’) because FERC employed the by compelling state interests and is therefore
wrong legal standard for reviewing claims under facially constitutional.”
RFRA and because substantial evidence does not
support FERC’s conclusion that the relicensing Slovik v. Yates No. 06-55867 (October 6, 2008)
decision does not substantially burden the Tribe’s “California prisoner Michael D. Slovik petitions
free exercise of religion. The Tribe also asserts that for a writ of habeas corpus, contending that his
FERC failed to consult with the Tribe on a govern- confrontation rights under the Sixth and Four-
ment-to-government basis in violation of the Na- teenth Amendments to the United States Consti-
tional Historic Preservation Act (‘NHPA’). PSE tution were violated when a California trial
cross-petitions for review of FERC’s decision to court prevented him from asking questions on
impose water flow requirements that exceed those cross-examination that would establish that one
established in the Washington State Department of of the prosecution’s key witnesses had likely
Ecology’s (‘Ecology’) water quality certification lied under oath. The district court denied the
(‘WQC’). petition. For the reasons explained below, we
agree that Slovik was denied his confrontation
We have jurisdiction under 16 U.S.C. § 825l(b). rights and that the right was clearly established;
After hearing argument in this appeal, we vacated accordingly, we reverse.”
submission pending publication of Navajo Nation
v. U.S. Forest Serv., No. 06- 15371, 535 F.3d Caldwell v. Caldwell No. 06-15771 (October 3,
Page 11 The Public Lawyer
NINTH CIRCUIT CASES
2008) “We must decide whether Jeanne E.
Caldwell, who asserts an interest in being in- the inclusion of paragraph 1(c) in the Dis-
formed about how teachers teach the theory of charge Order [which exempted student
evolution in biology classes, has standing to loan obligations from the general dis-
pursue an Establishment Clause claim arising charge] was inserted because of a clerical
out of her offense at the discussion of religious mistake, because it was the clear intent of
views on the ‘Understanding Evolution’ website the Court, as reflected in the Chapter 13
created and maintained by the University of Plan, as approved by the Court, that all
California Museum of Paleontology and funded student loan-related obligations were to be
in part by the National Science Foundation. She discharged if the debtor successfully per-
avers that the website endorses beliefs which formed and completed the Plan.
hold that religion is compatible with evolution-
ary theory and disapproves beliefs, such as her Order of August 20, 2008. We thus finally have
own, that are to the contrary, thereby exposing presented to us the question that the parties
her to government-endorsed religious messages briefed and argued: Whether a debtor may obtain
and making her feel like an outsider. In a pub- discharge of a student loan by including it in a
lished opinion, the district court concluded that Chapter 13 plan, if the creditor fails to object after
Caldwell’s allegations state only a generalized notice of the proposed plan.”
grievance insufficient for injury in fact, and dis-
missed the complaint. Caldwell v. Caldwell, “It is apparent that a number of courts in our cir-
420 F.Supp.2d 1102, 1007 (N.D. Cal. 2006). cuit, including the district court below, are un-
We also conclude that the harm asserted by comfortable with the practice of some Chapter 13
Caldwell to her interest in being informed about debtors to seek to discharge their student debts by
the teaching of evolutionary theory is too gener- working them into their Chapter 13 plans. Some
alized and remote to confer standing against the bankruptcy judges have announced that they
University of California faculty who administer won’t confirm plans that seek to discharge student
the website and develop its content on behalf of loan debts without an adversary proceeding, even
the Museum of Paleontology. Caldwell’s com- when the creditor fails to object to the plan. See,
plaint against the Director of the National Sci- e.g., Patton v. U.S. Dep’t of Educ. (In re Patton),
ence Foundation has become moot since her 261 B.R. 44, 48 (Bankr. E.D. Wash. 2001); In re
appeal was taken. Therefore, we affirm. Webber, 251 B.R. 554, 557-58 (Bankr. D. Ariz.
2000). In fact, one of these opinions has sug-
Espinosa v. United Student Funds, Inc. No. 06- gested that inclusion of a ‘nondischargeable’ debt
16421 (October 2, 2008) “In our earlier opinion in a Chapter 13 plan ‘may be the subject of sanc-
in this case, Espinosa v. United Student Aid tions.’ In re Patton, 261 B.R. at 48.
Funds, Inc., 530 F.3d 895 (9th Cir. 2008), we
remanded to the bankruptcy court for a determi- For reasons explained above, we view matters
nation under Rule 60(a) whether exclusion of quite differently. Our long-standing circuit law
petitioner’s student debt from its discharge or- holds that student loan debts can be discharged by
der was the result of a clerical error. The bank- way of a Chapter 13 plan if the creditor does not
ruptcy court confirmed that: object, after receiving notice of the proposed plan,
October 2008 Page 12
NINTH CIRCUIT CASES
Pardee, 193 F.3d at 1086, and that such notice is of the order enforcing the discharge injunction
not constitutionally inadequate. In re Gregory, and for a determination whether the creditor
705 F.2d at 1123. We find it highly unlikely that acted willfully in violating the injunction under
a creditor whose business it is to administer stu- the standard we announced in Zilog, Inc. v.
dent loans will be misled by the customary bank- Corning (In Re Zilog, Inc.), 450 F.3d 996 (9th
ruptcy procedures or somehow be bamboozled Cir. 2006). REVERSED and REMANDED.”
into giving up its rights by crafty student debtors. Lazy Y Ranch, Ltd. v. Behrens No. 07-3513
If the creditor fails to object, it is doubtless the (September 26, 2008) “This case arises from
result of a careful calculation that this course is Lazy Y Ranch’s attempt to lease grazing lands
the one most likely to yield repayment of at least from the State of Idaho. The leases were auc-
a portion of the debt. In such circumstances, tioned by the State and although Lazy Y was the
bankruptcy courts have no business standing in high bidder, the leases ultimately were awarded
the way. Cases such as In re Webber and In re to other parties. Lazy Y filed a complaint under
Patton are, to that extent, overruled. 42 U.S.C. § 1983, alleging that various state offi-
cials violated the Equal Protection Clause when
The district court’s judgment reversing the they rejected its bids. In particular, Lazy Y al-
bankruptcy court is reversed. The case is re- leged that the officials discriminated against
manded to the bankruptcy court for reinstatement Lazy Y because it (1) has perceived ties to con-
Page 13 The Public Lawyer
NINTH CIRCUIT CASES
servationists; and (2) is a Washington corpora- property. This case presents an issue of first im-
tion that was attempting to enter the Idaho pression in this Circuit — whether a legislative,
grazing market. generally applicable development condition that
does not require the owner to relinquish rights in
Defendants moved to dismiss the complaint the real property, as opposed to an adjudicative
under Federal Rule of Civil Procedure land-use exaction, should be reviewed pursuant to
12(b)(6), contending that Lazy Y failed to state the ad hoc standards of Penn Central Transporta-
an Equal Protection claim and, alternatively, tion Co. v. City of New York, 438 U.S. 104 (1978),
that they were entitled to qualified immunity. or the nexus and proportionality standards of Nol-
Defendants’ motion relied on various docu- lan v. California Coastal Commission, 483 U.S.
ments indicating they had articulated a legiti- 825 (1987), and Dolan v. City of Tigard, 512 U.S.
mate reason for rejecting Lazy Y’s bids — 374 (1994). We affirm, holding that the Penn Cen-
namely, that leasing to Lazy Y would involve tral analysis applies to the 12-inch pipe require-
increased administrative costs because the ment. As for the installation of the 24-inch pipe,
lands were unfenced and cattle could wander we conclude that the McClungs voluntarily con-
onto adjoining property. The district court tracted with the City to install the 24-inch pipe and
struck most of Defendants’ extraneous docu- thus the installation of that pipe was not a ‘taking’
ments and ultimately denied their motion to by the City.”
dismiss. This interlocutory appeal followed,
with Defendants relying on the collateral order United States v. Able Time, Inc. No. 06-56033
doctrine as a basis for appellate jurisdiction. (September 25, 2008) “Able Time, Inc. imported a
shipment of watches into the United States. The
As we explain below, Lazy Y has properly al- watches bore the mark ‘TOMMY,’ which is a reg-
leged that Defendants violated its rights under istered trademark owned by Tommy Hilfiger Li-
the Equal Protection Clause, and also that they censing, Inc. The Bureau of Customs and Border
violated clearly established law. We therefore Protection seized the watches pursuant to the Tar-
affirm.” iff Act, which authorizes seizure of any
‘merchandise bearing a counterfeit mark.’ 19
McClung v. City of Summer No. 07-35231 U.S.C. § 1526(e). Tommy Hilfiger did not make or
(September 25, 2008) “In 1995, Daniel and sell watches at the time of the seizure. Customs
Andrea McClung (the ‘McClungs’) sought to later imposed a civil penalty upon Able Time pur-
develop property they owned in the City of suant to 19 U.S.C. § 1526(f), which authorizes the
Sumner (the ‘City’), and learned that their un- imposition of a fine upon any person who imports
derground storm drain pipe did not meet the merchandise that is seized under § 1526(e). The
City’s requirement for new developments to district court concluded that, because Tommy Hil-
include pipes at least 12 inches in diameter. figer did not make watches at the time of the sei-
The McClungs assert that the City’s subse- zure, the watches imported by Able Time were not
quent request that they install a 24-inch pipe in counterfeit, and the civil penalty imposed by Cus-
exchange for the City approving their permit toms was unlawful.
application and waiving certain permit and fa-
cilities fees effected an illegal taking of their The government argues that the Tariff Act does
October 2008 Page 14
NINTH CIRCUIT CASES
not require the owner of the registered mark to transmission of mail. The complaint also alleges a
make the same type of goods as those bearing facially viable breach of contract claim. The dis-
the offending mark. The government acknowl- missal of the action at this preliminary stage, be-
edges that such a requirement is commonplace fore any discovery could reveal either the USPS
in many related trademark statutes but main- records of the transaction or the true nature of the
tains that Congress did not intend to include parties’ understanding, was erroneous.”
such a requirement—known as an ‘identity of
goods or services’ requirement—in the Tariff Abagninin v. AMVAC Chemical Corp. No. 07-
Act. Able Time responds by arguing that Con- 56326 (September 24, 2008) “Akebo Abagninin
gress expressed its intent to require identity of and others who live and work in the Ivory Coast
goods in related statutes and legislative history. (‘Abagninin’) appeal the district court’s dismissal
with prejudice of their claims against manufactur-
We conclude that the Tariff Act does not con- ers, distributors, and users of the pesticide DBCP
tain an identity of goods or services require- for genocide and crimes against humanity under
ment. We hold that Customs may impose a civil the Alien Tort Statute (‘ATS’), 28 U.S.C. § 1350.
penalty pursuant to 19 U.S.C. § 1526(f) upon an Abagninin alleges that DBCP caused male sterility
importer of merchandise bearing a counterfeit and low sperm counts, which AMVAC knew. The
mark, even though the owner of the registered district court granted with prejudice AMVAC’s
mark does not manufacture or sell the same type motion for judgment on the pleadings as to the
of merchandise. We reverse the district court’s genocide claim for failure to allege that AMVAC
order granting Able Time’s motion for sum- acted with specific intent. Abagninin’s claim for
mary judgment and remand for further proceed- crimes against humanity was subsequently dis-
ings.” missed for failure to allege that AMVAC’s con-
duct occurred within the context of a State or or-
MB Financial Group, Inc. v. USPS No. 06- ganizational policy. We affirm.”
56267 (September 25, 2008) “This is an unusual
case involving the potential liability of the United States v. Pham No. 06-30489 (September
United States Postal Service (‘USPS’) for fail- 23, 2008) “This case illustrates the dangers of an
ing to make available a post office box it was identity theft scheme whereby many persons and
obligated to provide for receipt of plaintiff’s financial institutions are impacted when criminals
business mail. The district court dismissed the steal identities. Lam Thanh Pham (‘Pham’) appeals
complaint pursuant to Federal Rule of Civil the 78-month sentence and $1 million restitution
Procedure 12 for lack of jurisdiction and failure order imposed on him after he pled guilty to one
to state a claim, holding that the USPS was im- count of bank fraud in violation of 18 U.S.C. §
mune under the provision of the Federal Tort 1344.1 Pham and five other individuals were in-
Claims Act (‘FTCA’) that exempts the USPS dicted on forty-four counts of bank fraud in con-
from liability arising from negligently transmit- nection with a massive identity theft scheme that
ted mail. See 28 U.S.C. § 2680(b). compromised the bank accounts of ninety-five
people held by fourteen different financial institu-
We reverse. The complaint alleges a tort that tions and resulted in more than $1.6 million in
does not necessarily arise out of the negligent loss. Pham’s guilty plea followed. Pham contends
Page 15 The Public Lawyer
NINTH CIRCUIT CASES
that it was error for the district court to apply a and Traditional use determination (‘C & T deter-
fourlevel enhancement to his sentence for a mination’) for moose throughout Game Manage-
property crime involving fifty or more victims ment Unit (‘GMU’) 12. The C & T determination
where the shortfalls in the accounts of the ninety- permits Chistochina residents to harvest moose in
five individuals whose identities were stolen GMU 12 under federal subsistence hunting regu-
were fully reimbursed by their banks. We have lations, which are more permissive than state
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 hunting regulations.
U.S.C. § 3742, and we vacate Pham’s sentence
and remand for resentencing on an open record.” Plaintiff-Appellant the State of Alaska (‘Alaska’)
challenged the C & T determination in district
State of Alaska v. Federal Subsistence Board No. court, contending that the FSB granted the deter-
07-35723 (September 23, 2008) “Defendant- mination in violation of the Administrative Proce-
Appellee Federal Subsistence Board (‘FSB’ or dure Act (‘APA’), 5 U.S.C. § 706(2)(A). The dis-
‘Board’) administers the federal subsistence pro- trict court granted summary judgment in favor of
gram at the heart of Title VIII of the Alaska Na- Defendants-Appellees FSB, the Chairman of the
tional Interest Lands Conservation Act FSB, the Secretary of the Interior, the Secretary
(‘ANILCA’), 16 U.S.C. §§ 3111-26. In 2005, the of the Department of Agriculture (together,
FSB granted residents of Chistochina, a rural ‘Federal Defendants’), and Defendant-Intervenors
community in Southeast Alaska, a Customary Cheesh-na Tribal Council, Chistochina’s govern-
October 2008 Page 16
NINTH CIRCUIT CASES
ing body, and Larry Sinyon, a Chistochina sub- 1205 (9th Cir. 2007). Factual allegations in the
sistence hunter (‘Intervenors’). After a careful complaint are taken as true and all reasonable
review of the record, we find no reason to set inferences are drawn in the plaintiff’s favor. Id.
aside the FSB’s C & T determination. Because ‘Pro se complaints are to be construed liberally
we may not substitute our own judgment for that and may be dismissed for failure to state a claim
of the FSB, see Arrington v. Daniels, 516 F.3d only where it appears beyond doubt that the
1106, 1112 (9th Cir. 2008) (citing Citizens to plaintiff can prove no set of facts in support of
Preserve Overton Park, Inc. v. Volpe, 401 U.S. his claim which would entitle him to relief.’ Id.
402, 416 (1971), overruled on other grounds by
Califano v. Sanders, 430 U.S. 99, 105 (1977)), The standards for evaluation of a First Amend-
we affirm.” ment claim concerning outgoing correspondence
sent by a prisoner to an external recipient were
Barrett v. Belleque No. 06-35667 (September 22, established by the Supreme Court in Procunier v.
2008) “Plaintiff-Appellant Jacob Barrett’s pro se Martinez, 416 U.S. 396 (1974), overruled on
complaint was dismissed sua sponte by the dis- other grounds by Thornburgh v. Abbott, 490 U.S.
trict court, with prejudice, for failure to state a 401, 413-14 (1989). Under these standards, cen-
claim. Barrett, a prisoner at the Oregon State sorship of prisoner mail is justified only if ‘the
Penitentiary, attempted to mail a series of letters regulation or practice in question further[s] an
to his grandmother and mother—those letters important or substantial governmental interest
used vulgar and offensive racist language to de- unrelated to the suppression of expression’ and
scribe prison officials. After reviewing the let- ‘the limitation of First Amendment freedoms [is]
ters, prison officials cited Barrett for violation of no greater than is necessary or essential to the
various prison disciplinary rules, resulting in a protection of the particular governmental interest
loss of good time, revocation of certain privi- involved.’ Id. at 413. Procunier is controlling
leges, and other punitive measures. Barrett re- law in the Ninth Circuit and elsewhere as applied
sponded by filing a complaint in federal court to F.3d 1276, 1281 n.2 (9th Cir. 1995); Loggins
pursuant to 42 U.S.C. § 1983, alleging that the v. Delo, 999 F.2d 364, 366 (8th Cir. 1993);
prison officials violated his rights under the First Brooks v. Andolina, 826 F.2d 1266, 1268-69 (3d
and Fourteenth Amendments. Acting without the Cir. 1987); McNamara v. Moody, 606 F.2d 621,
benefit of any substantive briefing from the par- 624 (5th Cir. 1979).
ties, the district court reasoned that the prison
had a ‘legitimate penological interest’ in prevent- Barrett’s complaint—which unequivocally
ing Barrett from using ‘crude and racist lan- pleads facts alleging that the prison censored his
guage,’ that outweighed any countervailing First outgoing mail and punished him for its con-
Amendment interest. The district court’s dis- tents—states a claim that is clearly cognizable
missal relied on an incorrect legal standard; un- under Procunier. The district court was not in a
der the correct standard Barrett has stated a claim position to decide, on the pleadings, whether the
for relief. We therefore reverse and remand.” Oregon State Penitentiary’s rules ‘further an im-
portant or substantial government interest,’ or
Dismissal for failure to state a claim is reviewed impose limitations ‘no greater than is necessary
de novo. Weilburg v. Shapiro, 488 F.3d 1202, or essential to the protection’ of those interests.
Page 17 The Public Lawyer
NINTH CIRCUIT CASES
Procunier, 416 U.S. at 413. These are questions
that go to the merits of Barrett’s claim, not to
whether he has stated a claim.
Instead of analyzing Barrett’s claim under Pro-
cunier, which is precedent that takes account of
the fact that the recipient’s First Amendment
rights are implicated when outgoing prisoner
mail is censored, the district court relied on case
law addressing prison regulations that concern
communications between prisoners. See, e.g.,
Jones v. North Carolina Prisoners’ Labor Un-
ion, Inc., 433 U.S. 119 (1977); see also Turner v.
Safley, 482 U.S. 78 (1987). These authorities are
not controlling here. REVERSED AND RE-
MANDED.”
October 2008 Page 18
UNITIED STATES DISTRICT COURT
Contributed by Daniel L. O’Brien, Senior requirement of NRS 41.036(2) is unconstitu-
Assistant General Counsel, Clark County tional. More specifically, they argue that it vio-
School District lates the Equal Protection Clause and deprives
them of due process. Turning first to their equal
Houston v. Reebok International, LTD. , 2:06- protection claim, the Houstons conted that the
CV-00871-LRL (June 16, 2008) “Hassan Hous- claimsis notice requirement impermissibly cre-
ton was coaching a basketball game on July 22, ates two classes of victims of torts-victims of
2004. The game was part of a tournament being torts by the government, who must submit notice
played at Liberty Heights High School, a school of claims, and victims of torts by private parties,
operated by the Clark Country School District who need not submit such a claim.”
(the District). During the game, Houston suf-
fered a heart attack with anoxic brain injury, “A majority of courts that have addressed the
leaving him in a persistive vegetative state. constitutionality of claims notice requiremtns
Houston alleges that his injuries were caused in have concluded that they are constitutional.
part by the District’s negligence. Specifically, Johnson v. Maryland State Police, 331 Md. 258,
he contends that the District was negligent in 294-95, 628 A.2d 162, 166-67 (Md. Ct. App.
failing to provide reasonable and foreseeable 1993) (collecting cases); Rowland v. Washtenaw
access to medical equipment, including a defi- County Road Comm’n, 447 Mich. 197, 214 n.9,
brillator and other adequate medical material, 731 N.W.2d 41, 52 n.9 (2007) (collecting cases).
and by failing to clear the road so as to allow The courts that have upheld the requirements
ambulance access. Hassan Houston’s wife, have done so on various grounds, two of which
Felicia, alleges that the District’s negligence are particularly persuasive. First, courts have
caused a loss of consortium. reasoned that ‘because a State may contistuion-
ally choose not to allow any suits against itself,
The Houstons filed the instant action on July the legislature’s permission to sue in tort a previ-
17, 2006. The summons were issued on July ously immune sovereign can reasonably be ac-
18, 2006, and served on the District on August companied by such terms and provision as the
11, 2006. It is undisputed, however, that the legislature wishes to impose on that right.’ John-
Houstons did not first file a claim with the Dis- son, 331 Md. At 294, 628 A.2d at 166. Second,
trict pursuant to NRS 41.036(2). NRS courts have conducted a traditional equal protec-
41.036(2) provides, ‘Each person who has a tion analysis, holding that claim requirements
claim against any political subdivision of the have a rational basis and therefore do not violate
stat arising out of a tort must file his claim the Equal Protection Clause. Id. 295, 628 A.2d at
within 2 years after the time the cause fo action 166-67.”
accrues with the governing body of that politi-
cal subdivision.’ On September 11, 2006, the “In the Court’s view, the Johnson court’s analy-
District filed the instant motion, arguing that the sis, as well as that of other courts relying on
Houstons’ claims are barred for their failure to similar reasoning, is correct. In enacting NRS
file a claim pursuant to NRS 41.036(2).” 41.031, the Nevada legislature waived the immu-
nity of the State and its political subdivisions. In
“The Houstons contend that the claims notice so doing, the legislature conditioned the waiver
Page 19 The Public Lawyer
UNITED STATES DISTRICT COURT
on the satisfaction of the requirements of NRS clude that the filing of the lawsuit is sufficient is
41. 063. NRS 41.031(1). NRS 41.036(2) cre- to read out the requirement of a notice of claim
ates a classification that ‘reasonably accompa- completely, defeating the purpose of the statute.
nies’ NRS 41.031's waiver of sovereign immu- Additionally, that a representative of the District
nity insofar as it requires only that the victim of may have witnessed Mr. Hassan’s attack in no
government negligence provide notice to the way informs the District of the possibility of a
government of a claim against it. Johnson, 331 legal claim or the basis thereof. Consequently,
Md. At 296, 628 A.2d at 167. Beyond that , even assuming that NRS 41.036(2) can be satis-
there exists a rational basis for the claims notice fied by substantial compliance, the Court finds
requirement at issue. The State is involved in a the presence of a District official at the scene of
great number of tort actions. The claims notice the accident to be insufficient to notify the Dis-
requirement affords the State and its subdivi- trict of the claim against it. For the foregoing rea-
sions the ability to expeditiously dispose of tort sons, the Court finds the Houstons’ failure to file
claims filed against it, minimizing the cost to a claim with the District precludes their suit and
taxpayers of costly litigation that normally ac- therefore grants the District’s motion.”
companies tort actions.”
“The Court holds that the claims notice require-
ment at issue here is not arbitrary or capricious.
The requirement that a victim of government
torts submit a claim with the appropriate gov-
ernment agency allows the ability of the Stat
and its agencies to efficiently dispose of tort
claims filed against it. Therefore, for the fore-
going reasons, the Court holds that NRS
41.036(2) is constitutional.
The Houstons also argue, for the first time at
oral argument, that the notice of claims require-
ment of NRS 41.036(2) is satisfied by virtue of
the fact that their lawsuit was initiated within
two years of the accident. They also introduced
a new argument that because a representative of
the District was on hand at the time of Mr. Has-
san’s heart attack, they need not have filed a
formal complaint. As to the claim that a filing
of the lawsuit was sufficient to establish com-
pliance with NRS 41.036(2), the Court is unper-
suaded. Though there is some authority for the
proposition that substantial compliance with
NRS 41.036(2) is all that is required, to con-
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KROLLONTRACK.COM eDISCOVERY CASES
Court Orders Production of ESI in Native
Format Previously Produced in Paper For- Citing Lack of Bad Faith, Court Declines to Dis-
mat miss Complaint as Sanction for Discovery Mis-
conduct
White v. Graceland Coll. Ctr. for Prof'l Dev. &
Lifelong Learning, Inc., 2008 WL 3271924 (D. Laethem Equip. Co. v. Deere & Co., 2008 WL
Kan. Aug. 7, 2008). In this wrongful termina- 4056359 (E.D.Mich. Aug. 26, 2008). In this
tion litigation, the plaintiff moved to compel the breach of contract and tortious interference with
defendants to provide complete information on business relationships, inter alia, dispute, the de-
its document retention policy and how it may fendant objected to the magistrate judge’s recom-
have affected relevant electronically stored in- mendation that the defendant’s motion to dismiss
formation. The defendants argued that provid- the complaint be denied. Seeking dismissal, the
ing such information would be overly broad and defendant alleged irreparable harm due to the
unduly burdensome, and that such information plaintiff intentionally withholding two disks con-
was irrelevant, proprietary and confidential. De- taining electronically stored information and fail-
termining the defendants had provided a suffi- ing to provide a privilege log despite asserting
cient response to the discovery request via ex- privilege. Countering, the plaintiff argued the ex-
pert affidavit establishing an adequate search of istence of the disks was disclosed in 2005 and that
the electronic systems, the court denied the mo- the defense counsel abused the plaintiff’s inadver-
tion to compel. The plaintiff also sought repro- tently produced privileged documents by using
duction of certain electronic documents in na- them as exhibits. Weighing the factors considered
tive format, claiming that production of ESI in when determining whether to dismiss a case un-
paper format was contrary to the "reasonably der either Fed.R.Civ.P 37(b) or 41(b), the magis-
usable" requirement of Fed.R.Civ.P. 34. The trate judge found dismissal to be an inappropriate
defendants argued that converting the e-mails sanction for the discovery misconduct, citing lack
and attachments to PDF, then printing them and of bad faith and the availability of less dramatic
producing the printouts constituted a reasonably sanctions. The court adopted the magistrate
usable form since the plaintiff failed to request a judge’s report and recommendation and referred
particular format. Disagreeing with the defen- the issue of the appropriateness of alternative
dants, the court held that the conversion of elec- sanctions back to the magistrate judge.
tronic documents to paper did not satisfy the
requirements under Fed.R.Civ.P. 34, and ac- Court Denies Motion to Compel Due to Non-
cordingly granted the plaintiff's motion to com- Existence of Documents
pel production in native format. The court also
noted that this dispute could have been avoided Dorn-Kerri v. South West Cancer Care, 2008 WL
had the parties adequately discussed production 3914458 (S.D.Cal. Aug. 18, 2008). In this wrong-
format during the Fed.R.Civ.P. 26(f) conference ful termination litigation, the pro se plaintiff
as required by Guideline 4(f) of the United moved to compel the defendant to supplement its
States District Court for the District of Kansas' response to her request for production of docu-
Guidelines for Discovery of Electronically ments. The plaintiff sought a report from her pe-
Stored Information. riod of employment in 2004-2005 from a database
October 2008 Page 21
KROLLONTRACK.COM eDISCOVERY CASES
that updates continually. The defendant re- struction in Accordance with Retention Policy
sponded that the records no longer exist since
the printed records are destroyed post- Gippetti v. United Parcel Service, Inc., 2008 WL
processing, and that the software program is 3264483 (N.D.Cal. Aug. 6, 2008). In this age
incapable of producing historical reports, as discrimination litigation, the plaintiff sought
corroborated by plaintiff's expert. Citing the sanctions for spoliation claiming the defendant
Ninth Circuit's "repeated admonition that courts destroyed relevant electronic documents, specifi-
construe pro se pleadings and motions liber- cally tachographs, which records a vehicle's
ally," the court imposed a burden on the defen- speed and length of time it is moving or station-
dant to prove discovery should not be allowed. ary. The defendant responded that some of the
Finding the defendant had met its discovery ob- requested tachographs were destroyed as part of
ligations by demonstrating the reports no longer the company's routine document retention pol-
tangibly exist and are incapable of electronic icy, which due to the large volume of data, called
regeneration, the court denied the motion. The for destruction of the records following 37 days.
court stated that if requested material does not Additionally, the defendant argued it was not
exist, it cannot be in the "possession, custody, under a duty to preserve the records because they
or control of a party and therefore cannot be had no reason to believe that they had any bear-
produced for inspection." ing on the age discrimination claim. Agreeing
with the defendant, the court refused to impose
Court Orders Production of E-Mails from sanctions.
Yahoo! Account
Court Orders Production of Text Messages
Infinite Energy, Inc. v. Thai Heng Chang, 2008 Maintained by a Non-Party Service Provider
WL 4098329 (N.D.Fla. Aug. 29, 2008). In this through Rule 34
trade secret litigation, the plaintiff filed a mo-
tion to compel production of relevant e-mail Flagg v. City of Detroit, 2008 WL 3895470
and sought sanctions for defendant's untruthful (E.D.Mich. Aug. 22, 2008). In this ongoing
representations regarding the e-mail account. wrongful death action, the court previously de-
The defendant argued he did not identify the termined text messages of certain city employees
particular Yahoo! account because he could not were potentially discoverable and established a
produce e-mails from it, claiming they were de- protocol under which two designated magistrate
leted as a result of his deactivation of the ac- judges would make the initial determination as to
count. Frustrated by the defendant's lack of evi- their discoverability. In this current dispute, the
dence of destruction, the court ordered the de- defendants sought to prevent discovery from go-
fendant to immediately attempt to obtain and ing forward, arguing that the court's previous
produce e-mails from the Yahoo! account. The order violated the Stored Communications Act
court also awarded sanctions against the defen- ("SCA"), claiming it wholly precludes the pro-
dant, but stayed the determination of which duction of electronic communications stored by a
sanctions to impose until a later date. non-party service provider in civil litigation. Re-
jecting the defendants' reading of the SCA, the
Court Denies Spoliation Claim Finding De- court held that possession for purposes of requir-
Page 22 The Public Lawyer
KROLLONTRACK.COM eDISCOVERY CASES
ing production includes control over the infor- "(1) the waiver is intentional; (2) the disclosed
mation, which defendants maintained through and undisclosed communications or information
its contractual relationship with the non-party concern the same subject matter; and (3) they
service provider. However, the court was will- ought in fairness to be considered together." The
ing to modify the means of production - holding last provision provides courts with considerable
that the third party subpoena was unnecessary discretion, making judicial determinations of sub-
and instead the court ordered the plaintiff to file ject matter waiver difficult to predict. Notwith-
a Fed.R.Civ.P. 34 production request. See also standing, the first requirement, i.e. intentional dis-
Flagg v. City of Detroit, 2008 WL 787061 closure, should greatly limit the occurrence of
(E.D.Mich. Mar. 20, 2008). entire subject matter waiver.
Practice Points: The Impact of New Federal Inadvertent Disclosure. Rule 502(b) provides a
Rule of Evidence 502 uniform framework for federal courts in analyz-
ing inadvertent disclosure of privileged docu-
The long-anticipated Federal Rule of Evidence ments. Rule 502(b) adopts the balancing approach
502, titled "Attorney-Client Privilege and Work previously taken by a majority of federal circuits,
Product; Limitations on Waiver," was signed and provides that disclosure does not operate as a
into law by the President on September 19, waiver if: "(1) the disclosure is inadvertent; (2)
2008. Rule 502 aims to provide predictability to the holder of the privilege or protection took rea-
litigants by creating a uniform set of federal sonable steps to prevent disclosure; and (3) the
rules regarding the scope of privilege waiver holder promptly took reasonable steps to rectify
and inadvertent disclosure. The Rule also seeks the error..."
to decrease the substantial costs associated with
privilege review by providing protections As with any new rule, judicial interpretation, ad-
against broad privilege waiver. Additionally, vocacy, legal scholarship and circumstance will
the Rule aims to protect parties that enter into undoubtedly mold the meaning of the phrase
nondisclosure agreements and extend their "reasonable steps." Rules do not exist in a vac-
agreement onto non-parties. The newly enacted uum and courts will look to existing precedent to
Rule 502 has the potential to significantly determine standards of reasonableness. The recent
change the way parties and courts manage in- judicial trend under the common law balancing
stances of inadvertent disclosure of privileged test has been to demand high standards of privi-
documents. Therefore, well-prepared legal prac- lege review. Accordingly, it is unlikely that courts
titioners should understand Rule 502's key pro- will read this rule to allow for a decreased stan-
visions so as to be prepared for its real-world dard of reasonableness. In fact, it is more likely
impact. that courts will continue to order parties to pro-
duce specific evidence of cautionary measures
Scope of Waiver. Rule 502(a) governs when taken to avoid inadvertent disclosure.
disclosure constitutes subject matter waiver, i.e.
privilege waiver of related documents when one Effect of State Determinations on Federal Pro-
privileged document is disclosed. The Rule lim- ceedings. Rule 502(c) provides guidance to fed-
its subject matter waiver to instances where: eral courts deciding issues of waiver where privi-
October 2008 Page 23
KROLLONTRACK.COM eDISCOVERY CASES
leged documents were previously disclosed in a
vides that all determinations made in federal pro-
state court. The Rule calls for application of law
ceedings are binding on subsequent state pro-
that is most protective against waiver, either
ceedings, and to federal court-annexed and fed-
Rule 502 or the law of the state where the dis-
eral court-mandated arbitration proceedings. The
closure occurred. The Rule is intended to
binding effect of federal privilege determinations
broaden production in state courts by later pro-
is essential to achieving the goal of decreased
tecting the disclosures in federal proceedings.
costs associated with discovery as it allows hold-
Notably, however, Rule 502 does not provide
ers of privileged documents to rely on the Rule's
that one state court determination is binding on
protections without fear of being overruled by
proceedings in another state.
another court.
Controlling Effect of a Court Order. Rule
In conclusion, Rule 502 provides the legal com-
502(d) provides attorneys a powerful legal tool
munity with a much needed set of uniform rules
to prevent waiver decreeing that privilege is not
to guide expectations regarding privilege deter-
waived by disclosure to other persons or enti-
minations and to inform privilege arguments.
ties, including third parties, if the agreement is
However, nothing in Rule 502 excuses sloppy
incorporated into the court order. Most likely
discovery practices. To the contrary, the finding
the court will incorporate an agreement between
of waiver through inadvertent disclosure falls
the parties that inadvertent disclosure will not
under the court's discretion and requires attor-
constitute waiver. However, it appears that
neys to be prepared to defend their discovery
courts may also issue 502(d) orders sua sponte
conduct. Moreover, Rule 502 will not remedy
or in response to privilege disputes. Notably,
the uncomforting reality that, waiver or no
the Rule provides that a court may issue an or-
waiver, disclosures provide your legal opponent
der; however it does not require that an order
with potentially case-compromising information
must be issued. Accordingly, practitioners
it would not otherwise have.
should be prepared to advocate for their clients
and argue why the court should or should not
How Not to Get Admitted to the Bar
incorporate privilege protection. This provision
Law.com
of the Rule is especially likely to affect its suc-
From an opinion of the Supreme Judicial
cess in decreasing discovery costs.
Court of Massachusetts this week comes a
brief lesson in how to be sure you are
Controlling Effect of a Party Agreement. Rule
turned down when applying for admission
502(e) provides that a waiver agreement be-
to the bar.
tween parties is binding only on the parties to
First, start by verifying that you are prop-
the agreement. Accordingly, practitioners may
erly enrolled in law school and close to
want to consider taking the extra step of obtain-
completing your third year of study.
ing a Rule 502(d) order so as to be protected in
Second, just before submitting your appli-
subsequent proceedings and against third par-
cation for admission to the bar, engage in
ties.
outrageous conduct, preferably directed at
a current member of the bar or family
Controlling Effect of the Rule. Rule 502(f) pro-
member of a current member of the bar. It
Page 24 The Public Lawyer
From the Blogs
is best if the conduct includes threats and your own search engine. With tools like
harassment involving abuse of legal proc- Google Custom Search and Rollyo, building
ess. Sending angry e-mails also helps. your own search engine is as easy as pick-
Third, when bar officials interview you ing out the websites you’d like it to search.
about your conduct, say you do not re- The custom search engines are ideal for us-
member, but go ahead and acknowledge ers who have a specific interest area to
that you did "rant and rave." which they’d like to confine their searches.
Fourth, should the bar decide to conduct For example, in October of last year the
a hearing on your fitness to become a LTRC built the Legal Technology Web
lawyer, try to call character witnesses Search tool – a search engine that looks ex-
who have nothing helpful to say about clusively at legal technology sites. You can
you. try out the search engine on the LTRC
Finally, when the initial decision is made home page or you can even add it to your
to reject your application, file an appeal iGoogle page.
to the state's highest court and attempt
to convince it that its authority over your Ready to learn more about custom search
case is preempted by federal law. engines? Jim Calloway and Courtney Ken-
That's it. Those are the simple steps that naday address the topic in some detail in
could get you, too, rejected for admission. their article for the September 2008 GP
As the SJC said in its decision this week, Solo Technology eReport Newsletter: Build
Desy v. Board of Bar Examiners, such Your Own Search Engine.
conduct "strongly suggests dishonesty,
poor judgment, and a willingness to mis-
use the judicial process."
Customize Your Web Search
ABA Legal Technology Resource
Center
The web has become an essential tool in
most lawyer’s research arsenal, but dig-
ging through the vast expanse of the web
– which Google recently estimated at
more than 1 trillion pages – can be
daunting. Most popular search engines
have indexes that include tens of billions
of pages, making even simple searches
seem useless at times due to the low sig-
nal-to-noise ratio in the results.
One way to minimize your frustration
and maximize your results is to create