Whether you are on the Plaintiff's side or the Defense side in the civil litigation arena, sharing such decisions with the bar at large will help all involved, including by way of notifying your peers on your side of the bar of adverse decisions.
Wednesday, March 19, 2014
Heard of Any Recent Facebook Discovery or Post-Koken Cases of Note?
Have you heard of any recent Facebook Discovery decisions or Post-Koken decisions of note? Care to share a copy for publication here on Tort Talk?
Whether you are on the Plaintiff's side or the Defense side in the civil litigation arena, sharing such decisions with the bar at large will help all involved, including by way of notifying your peers on your side of the bar of adverse decisions.
Whether you are on the Plaintiff's side or the Defense side in the civil litigation arena, sharing such decisions with the bar at large will help all involved, including by way of notifying your peers on your side of the bar of adverse decisions.
Monday, March 17, 2014
ARTICLE: A St. Patrick's Day Parade of Proverbs
Here's a "replay" of a previous article of mine in the spirit of St. Patrick's Day:
A St. PATRICK’S DAY PARADE OF PROVERBS
by
Daniel E. Cummins
Pennsylvania Law Weekly
March 10, 2008
With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”
A closed mouth—a wise head.
Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.
Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”
Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.
A good beginning is half the work.
Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.
In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.
With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.
The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.
If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.
Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.
When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.
It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.
Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.
What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.
As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”
Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless.
An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.
Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.
Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.
If you lie down with dogs, you’ll rise with fleas.
Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.
Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”
Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.
Never put off til tomorrow what you can do today.
As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.
In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.
If you dig a grave for others, you might fall into it yourself.
Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.
The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.
Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”
A light heart lives long.
As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.
Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.
The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”
Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.
As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.
Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Comerford & Cummins. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.
This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.
Source of image: www.rooseveltblog.ipage.com
A St. PATRICK’S DAY PARADE OF PROVERBS
by
Daniel E. Cummins
Pennsylvania Law Weekly
March 10, 2008
With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”
A closed mouth—a wise head.
Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.
Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”
Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.
A good beginning is half the work.
Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.
In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.
With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.
The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.
If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.
Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.
When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.
It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.
Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.
What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.
As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”
Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless.
An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.
Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.
Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.
If you lie down with dogs, you’ll rise with fleas.
Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.
Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”
Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.
Never put off til tomorrow what you can do today.
As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.
In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.
If you dig a grave for others, you might fall into it yourself.
Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.
The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.
Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”
A light heart lives long.
As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.
Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.
The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”
Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.
As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.
Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Comerford & Cummins. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.
This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.
Source of image: www.rooseveltblog.ipage.com
2014 Top Rated Lawyer in Litigation
I am pleased to announce that, in addition to my recent AV Preeminent Rating, American Lawyer Media and Martindale-Hubbell™, recently advised me that they had selected me as a ‘2014Top Rated Lawyer in Litigation’ with respect to my handling of insurance defense matters in all of the counties that make up the Northeastern quarter of Pennsylvania.
This recognition follows on the heels of a 2013 recognition as a '2013 Top Rated Lawyer in Insurance Law.'
Source of image: www.alm.com
Wednesday, March 12, 2014
Judge Nealon of Lackawanna County Covers Wide Variety of Discovery Issues In First Party Benefits Litigation
In his recent decision in the case of Sharp v. Travelers Personal Security Ins. Co., No. 12 CV 6483 (C.P. Lacka. Co. March 7, 2014 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a variety of discovery issues in a first party benefits case.
The Court pointed out that a bad faith claim was not filed in this matter within the two year statute of limitation. Of note in this regard in this case was the court's handling of the issue of whether the insured's assertion of a breach of the implied contractual duty of good faith and fair dealing served to transform the breach of contract claim into a bad faith claim, thereby entitling the insured to secure certain bad faith discovery from the carrier such as reserves information, adjusters' personnel files, the UIM claims file, etc.
Judge Nealon ruled that there was no such transformation and, as such, the requested discovery would not be permitted.
However, other discovery such as amounts paid by the carrier to peer review doctors, the carrier's first party benefits claims manuals, as well as information on other claims asserted against the carrier where the first party benefits limits were $100,000. The court found that these items of discovery were relevant to the Plaintiff's efforts to prove its claims under the Unfair Trade Practices and Consumer Protection Law.
The rule gleaned from a review of this case is that, if you want bad faith discovery, a bad faith claim must be asserted.
Anyone wishing to review a copy of this case may click this LINK. Judge Nealon's 41 page Opinion covers many of the important cases and issues relevant to a litigation over first party benefits.
The Court pointed out that a bad faith claim was not filed in this matter within the two year statute of limitation. Of note in this regard in this case was the court's handling of the issue of whether the insured's assertion of a breach of the implied contractual duty of good faith and fair dealing served to transform the breach of contract claim into a bad faith claim, thereby entitling the insured to secure certain bad faith discovery from the carrier such as reserves information, adjusters' personnel files, the UIM claims file, etc.
 |
| Judge Terrence R. Nealon Lackawanna County |
However, other discovery such as amounts paid by the carrier to peer review doctors, the carrier's first party benefits claims manuals, as well as information on other claims asserted against the carrier where the first party benefits limits were $100,000. The court found that these items of discovery were relevant to the Plaintiff's efforts to prove its claims under the Unfair Trade Practices and Consumer Protection Law.
The rule gleaned from a review of this case is that, if you want bad faith discovery, a bad faith claim must be asserted.
Anyone wishing to review a copy of this case may click this LINK. Judge Nealon's 41 page Opinion covers many of the important cases and issues relevant to a litigation over first party benefits.
Federal Middle District Court Judge Mannion Applies Restatement (Third) in Products Liability Case
After the completion of discovery, the defense filed a Motion for Summary Judgment against the Plaintiff’s claims for strict liability, negligence, and breach of warranty. The Defendant argued that summary judgment was appropriate as the nylon sling was not an unreasonably dangerous product, that the Defendant gave adequate warning, and that the Plaintiff’s misuse of the product was the cause of the Plaintiff’s accident.
In response, the Plaintiff argued the “malfunction” theory of products liability and additionally asserted that the Defendant failed to properly warn of possible dangers with the use of the strap.
 |
| Judge Malachy E. Mannion |
However, given the issues of fact and credibility issues existing, the court denied summary judgment on the court’s claims based upon an alleged manufacturing defect and/or an alleged breach of the warranty of merchantability . Anyone wishing to review a copy of this case may click this LINK.
This case has been added to the Tort Talk Products Liability Scorecard which can always be accessed by this LINK or by going to www.TortTalk.com and scrolling down the right hand column to click on the link to the Scorecard there.
A review of the Tort Talk Products Liability Scorecard confirms an ongoing debate and split amongst various Pennsylvania Courts on whether the Restatement of Torts (Second) or (Third) should continue to be applied in products case.
We continue to await the Pennsylvania Supreme Court's latest pronouncement on this important issue in the Tincher v. Omega Flex case.
Source of image of book: www.lawbookexchange.com
Source of image of book: www.lawbookexchange.com
Thursday, March 6, 2014
Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause
In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.
The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier. The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.
The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.
|
| Judge Terrence R. Nealon Lackawanna County |
The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act. More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.
Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.
For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.
Source of image: www.appraiseractive.com
Tuesday, March 4, 2014
Are Early Post-Accident Investigation Materials Gathered by Trucking Companies Prior to Litigation Protected by Work Product Privilege?
It is well known that trucking companies often act quickly to investigate accidents involving their vehicles to preserve evidence in the event litigation arises in the future. Questions arise as to whether the information gathered in such early investigations is protected from discovery by the attorney work product privilege in later lawsuits.
Judge Sylvia H. Rambo of the Federal Middle District Court of Pennsylvania addressed such a scenario under the Federal Rules of Discovery in her recent decision in the case of Johnson v. Predator Trucking, LLC, Civil No. 1:13-CV-1683 (M.D.Pa. Feb. 10, 2014 Rambo, S.J.).
The discovery at issue in this case involved documentation and photographs created within a few months of the accident but prior to any lawsuit being filed. In her Opinion, Judge Rambo pointed out that some of the photos and documentation were created after defense counsel had been assigned to defend the Defendant trucking company and truck driver in the event litigation did ensue in the future.
In reviewing the Federal Rules of Civil Procedure pertaining to discovery, i.e. Fed.R.C.P. 26, the court granted in part and denied in part the Plaintiff's motion to compel the post-accident investigative materials created and/or secured by the Defendants within the first several months after the occurrence of the accident.
In attempting to set parameters for the application of the work product doctrine to the issue presented, Judge Rambo noted that the key test to be applied is whether it could be reasonably said that the materials at issue were prepared "in anticipation of litigation."
Under a somewhat amorphous standard, the court noted that while litigation did not have to be imminent to render the documents protected from discovery, a "mere possibility" of some future litigation would not be enough to meet the standard for claiming the work-product privilege.
In applying the standard to this case, Judge Rambo not only emphasized that the Defendants had been assigned defense counsel by the carrier around the time of the creation of the documentation at issue, but also noted that the Defendants had also received word around that time that the Plaintiff had indeed retained personal injury counsel.
The court found some of the documents at issue, including a reenactment of the accident by representatives of the Defendants and certain claims file notes, were not discoverable. The court did grant the Plaintiff's motion to compel the production of other documentation such as photographs taken by the local investigating police department.
Anyone wishing to review this Opinion, may click this LINK.
Source: Article: "Accident Reenactment Photographs Protected From Discovery" by Saranac Hale Spencer of The Legal Intelligencer (Feb. 14, 2014).
Judge Sylvia H. Rambo of the Federal Middle District Court of Pennsylvania addressed such a scenario under the Federal Rules of Discovery in her recent decision in the case of Johnson v. Predator Trucking, LLC, Civil No. 1:13-CV-1683 (M.D.Pa. Feb. 10, 2014 Rambo, S.J.).
The discovery at issue in this case involved documentation and photographs created within a few months of the accident but prior to any lawsuit being filed. In her Opinion, Judge Rambo pointed out that some of the photos and documentation were created after defense counsel had been assigned to defend the Defendant trucking company and truck driver in the event litigation did ensue in the future.
In reviewing the Federal Rules of Civil Procedure pertaining to discovery, i.e. Fed.R.C.P. 26, the court granted in part and denied in part the Plaintiff's motion to compel the post-accident investigative materials created and/or secured by the Defendants within the first several months after the occurrence of the accident.
In attempting to set parameters for the application of the work product doctrine to the issue presented, Judge Rambo noted that the key test to be applied is whether it could be reasonably said that the materials at issue were prepared "in anticipation of litigation."
Under a somewhat amorphous standard, the court noted that while litigation did not have to be imminent to render the documents protected from discovery, a "mere possibility" of some future litigation would not be enough to meet the standard for claiming the work-product privilege.
In applying the standard to this case, Judge Rambo not only emphasized that the Defendants had been assigned defense counsel by the carrier around the time of the creation of the documentation at issue, but also noted that the Defendants had also received word around that time that the Plaintiff had indeed retained personal injury counsel.
The court found some of the documents at issue, including a reenactment of the accident by representatives of the Defendants and certain claims file notes, were not discoverable. The court did grant the Plaintiff's motion to compel the production of other documentation such as photographs taken by the local investigating police department.
Anyone wishing to review this Opinion, may click this LINK.
Source: Article: "Accident Reenactment Photographs Protected From Discovery" by Saranac Hale Spencer of The Legal Intelligencer (Feb. 14, 2014).
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