Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, York, Reading, Hanover, Malvern

In a 5 to 4 decision, the Supreme Court on June 28 upheld the constitutionality of the cornerstone provision of President Obama’s Affordable Care Act, the individual mandate. In the Court’s majority decision, which was written by Chief Justice Roberts and concurred in by Justices Breyer, Ginsburg, Sotomayor and Kagan, the law’s individual mandate was ruled a valid exercise by Congress of its taxing power. Justice Kennedy, who was widely viewed as the likely swing vote, did join with Justices Scalia, Alito and Thomas in a dissenting opinion. A surprise to most was that the controlling swing vote in favor of upholding the law proved to be that of the Chief Justice. 

With good reason given the uncertainty about the constitutionality of the health care reform statute that prevailed up until the Court’s decision, many employers with health care plans have delayed focusing much attention or resources on the decisions they have to make to comply with the new law by its 2014 full implementation date. The decision from the Court, upholding the law, means that this “wait and see” approach is difficult to continue to justify. The 18 months remaining  between now and January 1, 2014, is a relatively short time frame in which to gear up for full compliance. There are a number of notice, administration and benefit changes health plan sponsors will have to implement.

In our upcoming Employment Law Newsletter, Barley Snyder’s employee benefits attorneys will provide a summary of the significant health care reform compliance requirements that need to be implemented.

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The week, the United States Patent and Trademark Office (USPTO) announced the first step in implementation of a new patent examination initiative, which they claim will provide applicants greater control over the speed with which their applications are examined.   Pendency has been a major concern with the USPTO, considering that some applications are not being assigned for examination up to five years after filing. The “Three-Track” initiative is intended to promote greater efficiency in patent prosecution, by reducing pendency of some application. 

Under Track I, prioritized examination, announced by the USPTO this week and will provide a first Office action on the merits within four months and a final disposition within twelve months of the grant of a Track I request. 

Starting May 4, 2011, an applicant may request prioritized examination with payment of a $4,000 request fee and other filing fees. see 76 Fed. Reg. 18399. Prioritization is available only for an original and complete utility or plant non-provisional application that contains or is amended to contain no more than four independent claims, no more than 30 total claims, and no multiple dependent claims. If the prioritization is granted, the application receives special status and placed on the examiner's special docket throughout prosecution until a final disposition is reached in the application. As a result, the applicant may receive final disposition within twelve months of prioritized status being granted, which may include: (1) mailing of a notice of allowance, (2) mailing of a final Office action, (3) filing of a notice of appeal, (4) declaration of an interference by the Board of Patent Appeals and Interferences (BPAI), (5) filing of a request for continued examination, or (6) abandonment of the application.

A continuation application that claims priority to a pending application may be filed along with a Request for Prioritized Examination, however, a Request for Prioritized Examination will not be granted when filed with a new PCT national stage application under 35 U.S.C. 371. 

At first, the USPTO will limit the number of applications filed with a Request for Prioritized Examination to 10,000 applications for the 2011 fiscal year, and then revaluate any future limitations on requests. 

In the near future, an applicant will have three options as part of the “Three-Track” initiative, including arequest a traditional examination under the current procedures (Track II), or for non-continuing applications first filed in the USPTO, a request for an applicant-controlled delay for up to 30 months prior to docketing for examination (Track III), which is expected to be implemented in the Fall of 2011.

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In Seybert v. International Group, Inc., Jane Seybert filed suit in the United States District Court for the Eastern District of Pennsylvania claiming that her supervisor, Brett Marchand, subjected her to gender-based harassment. Seybert testified that during a work-sponsored dinner, attended by co-workers and other supervisors, Marchand stated loudly in reference to a chocolate fountain dessert, “I heard it’s really good if you go down deep, into the chocolate, with your berry,” which Seybert contended was a sexual metaphor.

As the matter proceeded to trial, International Group produced several emails that Seybert exchanged using her work email account during working hours. Many of these emails featured stories, jokes, cartoons and photographs employing sexual words, metaphors and double entendres. Seybert’s attorneys filed a motion to prevent International Group from using the emails at trial, citing a federal rule of evidence that limits the use of “sexual disposition” evidence.

The judge, however, rejected the argument, stating that “[b]y exchanging these emails with others during her . . . work hours, and using IGI computers, Mrs. Seybert may have been sanctioning the humor that the emails contained – a humor that may be found similar to the supposed humor underlying Mr. Marchand’s comment at the . . . dinner.” The court also noted that the emails did not comment directly on Seybert’s own sexual history or conduct, but mostly contained jokes and stories about generic topics or made-up characters, like Santa Claus.

The jury apparently found this evidence persuasive. On November 6, it entered judgment in favor of International Group.

Just like for plaintiffs, email evidence can sometimes provide important information for an employer defending an employment discrimination lawsuit. Employers can take advantage of some of these benefits—and limit some of the costs associated with E-Discovery in employment litigation—by adopting policies that require the long term retention of departing employees’ email accounts. Who knows? It might just be your “smoking gun” in the end.
 

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On February 13, 2009, Judge Sylvia H. Rambo of the United States District Court for the Middle District of Pennsylvania issued an E-discovery spoliation sanction in the case of Kvitka v. The Puffin Co., LLC. The case involved a dispute between Plaintiff, a collector of French and German antique dolls, and the publisher of Antique Doll Collector Magazine. After fielding complaints of disparagement from other advertisers, American Doll Collector (“ADC”) refused to continue running Plaintiff’s ads.

 Plaintiff discovered the exclusion and wrote to ADC’s advertising director that, “Apparently, this entire thing has a lot to do with some emails.” When Plaintiff later threatened suit, an ADC attorney wrote Plaintiff instructing her to preserve her computer’s hard drive and all the disputed emails.

Plaintiff originally sued in the Court of Common Pleas for Dauphin County, Pennsylvania. Plaintiff claimed that, while that case was pending, her laptop began acting “wonky” and she obtained a replacement from her company’s IT department. A week later, she threw her old laptop in the trash, but failed to take any efforts to preserve the emails. Plaintiff then discontinued the state court action and re-filed suit in Federal Court.

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Under Pennsylvania state court rules, a plaintiff suing a defendant for professional liability has to file a certificate, as to every claim asserted, confirming that the plaintiff obtained a written statement from a professional in the same profession as the defendant stating that the defendant’s actions fell below the applicable standard of care.

The Supreme Court of Pennsylvania adopted this requirement in January 2003 because of an increase in malpractice lawsuits and the concern that frivolous lawsuits were allowing to proceed. With this requirement, it is no longer enough that a plaintiff’s lawyer believed a professional did or did not do something that was expected. The requirement has been strictly construed by the courts, and, if a proper and timely certificate is not filed as to a claim, the claim will be dismissed, subject to the plaintiff’s ability to petition to open the claim.

Even though the requirement is set out in Pennsylvania state court rules, federal courts in Pennsylvania has consistently applied it to professional-liability claims in federal court. For example, it was recently applied in Stroud v. Abington Memorial Hospital .There, the court dismissed a professional-liability claim against the defendant hospital because there was not a certificate as to that claim. It did so even though the Complaint stated allegations in support of that claim and even though a certificate was filed for a different claim against the hospital.

Another highlight of the decision is the court’s explanation that, if a hospital is sued because it is alleged to be liable for the actions of an employee or alleged agent, the plaintiff must file a certificate of merit as to the hospital and one as to each employee or agent whose actions are at issue. This is required by the plain language of the rules. In Shroud, the plaintiff filed a certificate against the hospital certifying that the claim against the hospital was based solely on actions of other licensed professionals, along with a certificate as to one doctor who was alleged to be the hospital’s agent. The court found that the two certificates “must be read as representing . . that the claims against Hospital were limited to answering in respondeat superior for the alleged negligence” of the doctor. It did not matter that the Complaint pled another claim.  This analysis is consistent with the intent behind the requirement of certificates of merit in that it will prevent plaintiffs from filing lawsuits asserting multiple claims on a fishing expedition and based only on the plaintiff’s lawyer’s belief that liability exists. Instead, before filing a lawsuit or soon thereafter, plaintiffs must have a defendant’s actions reviewed by a like professional who must opine that malpractice occurred and that there is support for every claim asserted. Without that opinion, the lawsuit or some of its claims cannot go forward.

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Since the Supreme Court declared business methods to be patentable subject matter in the late 90's, there continues to be more and more patent applications filed for them. With the increasing number of applications comes further pushes on the US Patent and Trademark Office (USPTO) to accept more "abstract" business method patent applications. The battle continued recently on May 8, 2008 in the Federal Circuit where oral arguments were heard en banc on appeal of a business method application filed by Bilski that was rejected by the USPTO as being related to an abstract idea and therefore not patentable subject matter. The USPTO position is that business methods which employ only human intelligence without involving machines, manufactures, or compositions of matter do not qualify as patentable subject matter because they are directed to abstract ideas. Take a look at what Bilski is attempting to patent.

The Bilski patent is directed to a method of “hedging” that manages the consumption risk costs of a commodity sold by a commodity provider at a fixed price. In brief, the steps in the process comprise (1) initiating a series of transactions between a commodity provider and commodity consumer, (2) identifying market participants for the commodity with a counter-risk position to consumers, and (3) initiating a series of transactions between the provider and market participants at a fixed rate.

Based on the oral argument and questions presented, the Judges appear to be leaning in favor of Bilski. Such a decision would open the doors to business method patent filings even further. 

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On February 27, 2008, the United States Supreme Court ruled that a document filed with the Equal Employment Opportunity Commission (EEOC) that can reasonably be construed as a request for action to protect the employee’s rights or otherwise settle a dispute with the employer constitutes a discrimination “charge” within the meaning of the Age Discrimination in Employment Act (ADEA). In Federal Express Corp. v. Holowecki, the Supreme Court affirmed the U.S. Court of Appeals for the Second Circuit’s decision reviving a potential ADEA class action brought by current and former couriers over the age of 40, who alleged that Federal Express disparately applied its performance standards in an effort to force out older couriers before they qualified for retirement benefits.

Under the ADEA, an employee is required to file a “charge” of discrimination with the EEOC within 300 days of the discriminatory conduct prior to filing a lawsuit. However, because the term “charge” is not defined in the ADEA, federal courts have adopted numerous definitions of that term, which, in turn, has led to a variety of interpretations as to whether an employee is entitled to pursue his or her ADEA claim in a court of law.

In Holowecki, the Court addressed the long-standing question of whether an employee alleging discrimination initiates a claim (and stops the statute of limitations) by filing what the EEOC refers to as an “intake questionnaire.” In that case, the plaintiff submitted to the EEOC a completed intake questionnaire and an affidavit alleging that the company discriminated against older couriers. Although the EEOC did not initiate administrative proceedings in response to the filing of the intake questionnaire, the employee subsequently filed suit. The U.S. District Court for the Southern District of New York dismissed the lawsuit on the basis that the employee failed to satisfy the ADEA charge filing requirement. However, on appeal, the U.S. Circuit Court of Appeals for the Second Circuit, which covers New York, Vermont, and Connecticut, concluded that the intake questionnaire did in fact serve as a “charge.”

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In an employment discrimination lawsuit, can a plaintiff offer the testimony of other current or former employees who believe that they too had been discriminated against? According to the United States Supreme Court in Sprint/United Management Co. v. Mendelsohn, (February 26, 2008), the admissibility of such evidence will depend on the circumstances of the plaintiff’s case and the plaintiff’s theory of liability. However, the Supreme Court largely avoided the tough issue before it, i.e., ruling on the per se admissibility of “me-too” evidence in discrimination cases.

Mendelsohn sued Sprint alleging a company-wide pattern of age discrimination. Mendelsohn sought to introduce testimony by five former Sprint employees who claimed that their supervisors had also discriminated against them because of their age. However, none of the witnesses had the same supervisor as Mendelsohn or reported hearing discriminatory remarks by Mendelsohn’s supervisor. In fact, none of the witnesses even worked in the same department as Mendelsohn. Essentially, Sprint asked the trial court to exclude the testimony because the other employees were not “similarly situated” to Mendelsohn.                                                 

The District Court excluded this evidence at trial, and Sprint prevailed. However, on appeal, the Tenth Circuit said the District Court was wrong to apply a blanket rule excluding the “me too” evidence. Subsequently, Sprint appealed the decision to the U.S. Supreme Court.

Sprint took the question to the Supreme Court, which reversed, sending the case back to the trial court for further explanation of its exclusion of the “me-too” evidence. The Supreme Court decided that “me too” evidence is neither per se admissible nor per se inadmissible. The Court held that the admission of such evidence “depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case.” Accordingly, trial courts must carefully weigh the facts and circumstances of each case in deciding if “me too” evidence is admissible. 

Employers should be cautioned by this decision. Based on this ruling, plaintiffs may be more inclined to allege company-wide discrimination in an effort to permit them the opportunity to offer “me too” evidence at trial. As a result, defense attorneys should seek to identify a plaintiff’s “me too” evidence as early as possible, and make every effort to demonstrate that the witnesses offering “me too” evidence are not similarly situated with respect to the plaintiff.

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On February 7, 2008, the U.S. District Court for the Middle District of Pennsylvania ruled that an invalid release under the Older Workers Benefit Protection Act (OWBPA) does not create an independent cause of action for damages. In Baker v. Washington Group Int’l Inc., the Court rejected the argument by a group of former employees who alleged that because their signed releases which waived potential discrimination claims were invalid under the OWBPA, they were entitled to damages under the Age Discrimination in Employment Act (ADEA).

The terminated employees had been presented with separation agreements and general releases in which they agreed to release and discharge their employer, WGI, for any and all claims, including claims under the ADEA. In return for signing the release, employees were provided with up to four weeks of severance. The employees were given 21 days to sign the release.

The employees sued under the ADEA alleging that WGI had failed to provide them with “sufficient, correct, and proper notice” as mandated for an employee’s waiver of an ADEA claim. Specifically, as required by the OWBPA, WGI had failed to provide the employees with 45 days for review of the release and the employees were not informed in writing of the ages of all individuals selected for termination and the ages of all individuals in the same job classifications who were not selected for termination.

In granting WGI’s motion for judgment on the pleadings, the Court held that the employees could not sue for damages under the ADEA simply based on the employer’s noncompliance with the OWBPA requirements. The employees’ claim against WGI was not based on a contention that the company had discriminated against them on the basis of age, but rather that its release did not comply with the statutory requirements under the OWBPA. Under these circumstances, WGI argued that while the release was admittedly unenforceable, the employees lacked an ADEA claim. The Court agreed, and stated that “virtually every court that has confronted the issue has concluded that the OWBPA’s waiver requirements do not create and independent cause of action.” Further, while an OWBPA violation may negate a waiver, it does not create a right to sue under the ADEA.

The Third Circuit Court of Appeals has yet to rule on this issue; accordingly, the last chapter in this saga has yet to be written.

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A United States District Court for the Middle District of Pennsylvania has held that the policy language which excludes motor vehicles from coverage of a homeowner's policy does not apply to exclude an accident involving an all-terrain vehicle. Therefore, the insurance company which issued the homeowner's policy is required to provide liability coverage for the owner of the ATV.

There have been decisions from Pennsylvania state courts in the past which found that the homeowner's policy exclusion of motor vehicles did apply to the operation of an ATV.   The federal court reasoned otherwise.

Two boys were riding an ATV in 2004 --- "C.L.A." and "J.V."    J.V. was a passenger, riding behind C.L.A.   The ATV was owned by John Angerson, father of C.L.A.   They were riding on land adjacent to the property owned by Mr. Angerson.   Judge John E. Jones, III, found that the registration of an ATV required under Pennsylvania's Snowmobile and All-Terrain Vehicle Law was different from the registration of "motor vehicles" that is required under the Motor Vehicle Code. Therefore, he concluded, an ATV is not a "motor vehicle" and is not excluded from coverage.

Another issue addressed was whether the place where the accident occurred was an insured location, which under the policy would include premises used by the insured in connection with the covered residence and its grounds.    The area where the accident occurred was adjacent to the Angerson land and was regularly used by the Angersons for riding. Therefore, Judge Jones found it to be an insured location.

         

 

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In Eiser v. Brown & Williamson Tobacco Corp., -- A.2d --, 2007 WL 4570915, *1 (Pa. 2007), the Supreme Court of Pennsylvania weighs in on the self-described “maelstrom” in recent years surrounding the propriety of waiver under RAP 1925(b) for failure of an appellant to file a “concise statement of errors.” [1]  Despite the plain requirement under Rule1925(b) that Appellant set forth only those rulings or errors that she intends to challenge, Eiser holds that the number of issues raised in the RAP 1925(b) statement shall not alone serve as the basis for waiver.  Rather, waiver is appropriate only where the court finds unequivocally that the Appellant has breached its obligation of good faith to the court by deliberately attempting to circumvent the meaning and purpose of RAP 1925(b).

 

Eiser was a complex action brought by the estate of a life-long smoker and lung cancer victim, directed principally against the manufacturer of the deceased’s preferred brand of cigarettes.  The trial court entered judgment on a jury verdict for defendants, and plaintiff appealed.  In response to the trial court’s request for a Rule 1925(b) statement, appellant submitted a fifteen-page document listing at least twenty-four (24) separate issues.  Relying on the recent Superior Court decision in Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004)[2], the trial court found that Appellant had raised so many issues on appeal that he should be deemed to have waived all issues for failure to adhere to the meaning or purpose of RAP 1925(b).  Ultimately, the appellant only included eight issues in his Statement of Questions Involved for the Superior Court.  The Superior Court ruled on two of these eight issues, but quashed the remaining six on the basis that the record was insufficient because the appellant’s prolix 1925(b) statement had frustrated effective review by the trial court. 

 

In a decision likely to disappoint some trial judges, a plurality of the Supreme Court reversed, holding that, absent a finding of bad faith, the mere quantity of issues raised in the RAP 1925(b) Statement of Matters Complained of on Appeal may no longer be used as a basis for finding waiver.  Rather, lower courts must address, on the merits, all issues raised in good faith by the Appellant.  Accordingly, the Supreme Court remanded to the Superior Court to review the remaining six issues included in the Appellant’s Statement of Questions Involved, and, if necessary, to remand to the trial court for a more detailed analysis of the specified issues.

 

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By Order and Opinion dated November 16, 2006, Judge Stephen Linebaugh of the York County Court of Common Pleas, in the case of Sprague v. Long and Foster Real Estate, Inc., Civil Docket No. 2005-SU-3028-Y01, held in favor of Defendants, transferring this real estate dispute from York to Lancaster County, the county in which the real property is located.

Plaintiff sued Defendants who include the home sellers, the home inspection company as well as Long & Foster Real Estate, Inc., which has offices located in both York and Lancaster Counties. This is a real estate disclosure action that also includes allegations of misrepresentation and claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Plaintiff sought, amongst other things, rescission of the contract.

Plaintiff argued that venue was appropriate in York County because Long & Foster has three offices located in York, although none of those particular offices were involved in the litigation. Certain Defendants filed preliminary objections on the basis of improper venue.

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In Pennsylvania, we elect our judges.  Necessarily, then, persons who would be judges must mount electoral campaigns.  The content of such campaigns, however, is not entirely up to the person running for office.  Persons running for judicial office are bound by a judicial code of ethics promulgated by the Pennsylvania Supreme Court.  Canon 7(B)(1)(c) of the Code of Judicial Conduct states that candidates for judicial office:

should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court[.]

Canon 7 seeks to balance several interests, including the electorate's right to know where a candidate stands on any given issue, a candidate's right to communicate his or her views to the electorate, and the institutional integrity of the judicial system.  Does Canon 7 provide judicial candiates with sufficient guidance?  When the standard is whether a statement might "appear to commit the candidate" with respect to an issue likely to come before the court, I'd say the guidance is minimal -- any statement at all could be said to "appear to commit the candidate" on some issue or another.

Apparently, I am not alone in finding Canon 7 to be a bit ambiguous.  According to Peter Jackson at centredaily.com, the Pennsylvania Family Institute was interested in hearing the views of judicial candidates and, to that end, mailed a questionnaire to 120 judicial candidates across the state:

Only 19 people responded.  And many of them declined to answer individual questions, indicating they they were concerned about violating ethical rules, especially if they became a judge and failed to step down from a case involving an issue on which they had spoken out.

Obviously, the case of the PFI questionnaire provides only anecdotal evidence, but, for what it is worth, that evidence suggests that judicial candidates may not find Canon 7 to be perfectly clear regarding the extent to which they may communicate with the public on issues of substance.  In any event, we need not rely on anecdotal evidence -- the PFI, along with six judicial candidates in Lancaster County, have sued the Judicial Conduct Board and staff attorneys for the Disciplinary Board alleging that Canon 7 amounts to an unlawful abridgement of candidates' First Amendment rights.

The Judicial Conduct Board briefly responded to the suit:

Joseph A. Massa Jr., chief counsel for the Judicial Conduct Board, said the rules clearly let judicial candidates take public stands on political issues. For example, they may declare that they oppose abortion or support the death penalty, he said.

"But they can't say that, in any case that comes before (them), regardless of the evidence ... that they will (rule) in a preordained manner," Massa said.

Maybe it's just me, but Massa's example seems just plain wrong under Canon 7.  If a judicial candidate publicly states opposition to abortion, does Massa really believe that the statement might not "appear to commit the candidate" on the issue of abortion?  In any event, Massa's example -- which was intended as an example of political speech "clearly" permitted under the Code -- aptly illustrates the ambiguity confronting judicial candidates in Pennsylvania.  Now, a federal court will determine whether that ambiguity unconstitutionally burdens a judicial candidate's First Amendment rights.

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The Pennsylvania Bulletin reveals that Pennsylvania's Judicial Conduct Board has proposed the abolition of Rule 31 of its Rules of Procedure.  Rule 31 pertains to disposition of judicial misconduct complaints.  Under existing Rule 31, following receipt of a judge's written response, the Board has 180 days to dispose of a judicial misconduct complaint.  Under the rule, the Board can dispose of a complaint by (1) dismissing for want of probable cause that the alleged misconduct occurred; (2) dismissing based on a finding that, even if it did occur, the alleged conduct does not require filing of formal charges; or (3) authorizing the filing of formal charges with the Court of Judicial Discipline. 

The Rule provides two fairly broad exceptions to the 180-day disposition rule. First, the board may continue a full investigation beyond the 180-day period based on a "good faith belief that further investigation is necessary."  Second, the Board may defer disposition past the 180-day mark "upon discovery or receipt of additional, corrollary, or cognate allegations which may necessitate investigation." 

By all appearances, the proposed change would enable the Board to delay or defer disposition of a complaint for any period of time it chooses.  Call me silly but it seems to me that, in all but the most extraordinary cases, 180 days -- six months -- should be ample time for the Board to decide whether a complaint warrants reference for filing of formal charges.  Perhaps I'm wrong.  In any event, it would have been thoughtful of the Board to have supplied a statement of its reasons for proposing the elimination of Rule 31.

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Christy Burke at Law-com has an interesting article concerning electronic discovery, computer forensics and what being ahead of the curve can mean for law firms both large and small.  Burke spoke with Tom O'Connor of the Washington, D.C.-based nonprofit Legal Electronic Document Institute, regarding the risk of ignoring e-discovery:

"Lawyers cannot afford to ignore the importance of electronic discovery and computer forensics anymore," he warns. "Those who do are bordering on malpractice, especially for cases which involve any digital data component."

Although a small handful of attorneys have accepted the challenge and have chosen to educate themselves on the technology, Ball says the number of such e-discovery lawyers is tiny.

"We can hold our conventions in a phone booth, so we can make only the tiniest dent in solving the problem," he says.

He adds, however, that this is changing -- that he's seeing more lawyers embrace their responsibility to master e-discovery obligations, and to understand the forensics piece, too.

As I've alluded to previously, electronic document creation and retention presents considerable challenges to the contemporary litigator.  Cases that, in the past, may have involved hundreds of paper documents now may involve thousands of electronic documents.  And thousands of paper documents may easily become tens or hundreds of thousands of electronic documents.  In short, the ease with which documents can now be created, shared and stored has rendered the discovery process correspondingly more difficult.  That, however, is not an argument against the use of electronic documents but an argument in favor of retaining litigation counsel with the experience and resources to handle the electronic discovery process.

Burke concludes with some advice to practitioners:

Computer forensics is still a young science that's being shaped by the electronic-discovery rules as they continue to evolve and change. This expanding industry simultaneously presents huge opportunities and great responsibility. Lawyers who choose to face the importance of e-discovery and computer forensics sooner rather than later will have a distinct advantage over those who prefer to ignore them or to underestimate their impact.

As you might suspect, I agree without reservation.  Read the whole article; it is worth the time.

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In Cole, et al. v. General Motors Corp., No. 05-31070 (pdf), a strong panel of the Fifth Circuit (King, Garza and Owen) has vacated class certification in a nationwide warranty action against GM.  In 1998 and 1999, GM marketed its Cadillac Seville with side airbags.  In 2000, GM learned that the air bag sensors were defective and could cause deployment of the airbag in the absence of a collision.  GM issued a voluntary recall notice and, despite some hitches with production of replacements, GM completed the recall in 2002.  Naturally, litigation ensued.

Bottom Line:  Regardless of whether it establishes a per se rule (and it comes close), Cole is a very powerful decision standing between the class action bar and nationwide certification of warranty claims.
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On Monday April 2, the SCOTUS decided Massachusetts, et al. v. EPA, No. 05-1120 (pdf).  Although the case involved issues of greenhouse gases and global warming, the case is, from a litigator's perspective, far more notable for its treatment of Article III standing.  In a nutshell, Justice Stevens's majority opinion strongly suggests (one might even say "holds") that states may possess Article III standing to pursue litigation in the federal courts even in circumstances where private citizens would not:

It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.

(emphasis added).  The Court also noted "the special position and interest of Massachusetts" as well as its inclination to display a "special solicitude" for the arguments of states when it comes to Article III standing.  This strikes me as strong stuff and a significant departure from the Court's prior Article III jurisprudence.
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What could be more exciting for a litigator than a change in the Rules of Civil Procedure?  On March 27, the Pennsylvania Supreme Court promulgated new Rule 1031.1 (pdf), which specifically addresses cross-claims. 

Prior to the new rule, the Pennsylvania rules simply did not recognize cross-claims denominated as such.  Although the rules did account for some claims in the nature of a cross-claim, the issue was addressed in contradictory fashion when it came to claims stated among additional defendants joined under Rule 2252.  Rule 2252 permits any defendant to join additional defendants by means of a joinder complaint.  In that context, Rule 2252(d) permitted a defendant to state a claim against another existing defendant (i.e., a cross-claim).  At the same time, however, Rule 2255(b) barred an additional defendant joined under Rule 2252 from filing a pleading (i.e. stating claims) against any party other than (1) the party who had joined the additional defendant or (2) the plaintiff.   Rule 2255(b) thus barred additional defendants from stating cross-claims among themselves.  In short, the rules were a hash at the edges.  Rule 2252(d) could be read to permit cross-claims among additional defendants; Rule 2255(b) flatly prohibited them. 

New Rule 1031.1 clearly establishes the right of a party to state a cross-claim against any other party, regardless of the manner in which the cross-claimant was joined:

Any party may set forth in the answer or reply under the heading "Cross-claim" a cause of action against any other party to the action that the other party may be

(1) solely liable on the underlying cause of action or


(2) liable to or with the cross-claimant on any cause of action arising out of the same trnasaction or occurrence or series of transactions or occurrences upon which the underlying cause of action is based.

In addition to promulgating new Rule 1031.1, the Supreme Court has made more or less minor conforming changes to Rules 425, 1017, 1706.1, 2253 and 2256.  Troublesome Rules 2253(d) and 2255(b) have been rescinded.  Rule 1031.1 and the conforming amendments will take effect on June 1, 2007 (pdf) and, under Rule 52, will be applicable to all actions pending on that date.

In other notable rules changes, the World Chess Federation has announced that, henceforth in international competition, a rook may advance no more than four squares in any permitted direction during a single move.  It is hoped that the change, long advocated by spectators, will result in more aggressive play during the sometimes slow-paced mid-game. 

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Tony Mauro at the BLT reports that Justice Breyer attended a March 20 "summit" at Georgetown Law focused on the near-exponential growth of electronically-stored records and the burden it is placing on clients (and their counsel) during discovery.  As one might suspect, Breyer was far out of his technological depth and carefully limited himself to stating the obvious:

When Patrick Oot, director of electronic discovery at Verizon, said reviewing documents in a single case cost his company $4 million, Breyer grew concerned. That kind of cost, he said, is “going to drive out of the legal system a lot of people who belong there.”

The BLT also reports on panelists' suggestions for possibly reducing the burdens associated with electronic discovery.  Apparently, the suggestions were along the lines of hoping for "more cooperation between opposing attorneys" and seeking "honest brokers, judicial or otherwise, to better identify what documents need to be searched."  Yes.  And good luck with that.

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This month's edition of the ABA's Litigation News reports ($$$, reg.) on an ABA Ethics Opinion addressing lawyers' mining of metadata.  First things first, defined most broadly, metadata is, quite simply, data about data.  (Wikipedia offers an extended definition).  Defined for present purposes, metadata is information that an electronic document contains apart from substantive content, such as authorship, creation time, editing time, changes made, and a host of additional information that you, as a savvy lawyer, may not want your adversary to see.
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The Committee on Rules of Evidence has proposed a brand new hearsay exception (.pdf) for "Written, Adopted or Electronically Recorded Statement[s]."  The new exception -- if adopted by the Pennsylvania Supreme Court -- would except from exclusion as hearsay:

A Statement made at or near the time of the reported acts, events, or conditions, that was written by the declarant, adopted in writing by the declarant, or electronically recorded, provided that the statement is disclosed in a timely manner.

Proposed Rule 803.1(2).  As the Committee concedes, the proposed exception "has no exact counterpart in the Federal Rules of Evidence, or in prior Pennsylvania law."

A proposed comment to the new rule clarifies that the phrase "at or near the time of the reported events" is intended as a narrow window.  Because "[t]he rule is not intended to encourage the creation of statements as a substitute or supplement for the declarant's testimony at trial . . . a statement prepared weeks or more after the reported acts . . . should not generally be treated" as being covered by the exception.

What's the new rule all about?  It appears it is being proposed mainly to address witness intimidation issues that arise in criminal trials, where statements meeting the criteria of proposed Rule 803.1(2) are routinely taken by investigators.  Will the rule have any impact upon civil litigation?  Of course.  As the Committee points out, where a qualifying statement exists, the rule would permit a court to bypass inquiries that normally accompany the admission into evidence of prior written statements, such as inconsistency, insufficient recollection or the scope of a limiting instruction.

Parting Shot:  I'm not sure the new rule provides any increased utility as concerns the witness intimidation issue.  If a witness gives a statement to the police only to testify "I don't remember" at trial (an example offered by the Committee), the statement would be admisssible as a prior inconsistent statement under 803.1(1), no?  What's the point, then?  The Committee suggests it is "to simplify the process for admission of a valuable kind of evidence," but, really, how difficult is it to apply the prior inconsistent statement rule in such circumstances?  Am I missing something?

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No self-respecting blawg should consider itself complete without first addressing the Lost Maxims of Equity.  In 2002, Eugene Volokh, an unprepossessing UCLA law professor and legal blogger of rather modest esteem, re-discovered nine lost maxims to round out the body of pithy sayings, that, in the aggregate, define law's weak sister, Equity.  See 52 J. of Legal Educ. 619 (2002).

A few of my favorites:

Equity Delights in a Good Practical Joke
Equity, Schmequity
Equity is a Mean Drunk

And, finally, so many cases cry out for strict application of the lost maxim "Equity Abhors a Nudnik," it's a wonder the maxim was ever lost. 

While we're dealing with the lighter side of the law, my friend Dan Solove (GWU Professor of Law, author of The Digital Person and Lancaster County native), offers a humorous rumination on his most widely-read published work.  It's an old piece in one sense but fresh as daisy in every other.

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The Pennsylvania Rules of Civil Procedure require a plaintiff to file a timely certificate of merit in any professional liability action, including a medical malpractice lawsuit, subject to dismissal of the action.  We have seen a number of procedural issues come up in this context, and the legal landscape is developing.

One argument plaintiffs raise with some frequency in trying to revive a dismissed lawsuit is that the application of the rules was inequitable under the circumstances.  The Supreme Court of Pennsylvania has weighed in on the issue and said that the certificate of merit rules are subject to equitable considerations so long as the rules' requirements are met.  See Womer v. Hilliker, 908 A.2d 269 (Pa. 2006) (Justices Baer's dissent is here).  At least substantial compliance is required, and where a plaintiff does nothing to comply with the rules, equitable considerations cannot save a claim.  The court also said that serving an expert report upon a defendant, in and of itself, is not substantial compliance with the rules.  Generally, we do not expect equitable considerations to save many dismissed lawsuits.

A plaintiff's compliance with the certificate of merit rules must be carefully evaluated.  We can offer valuable assistance to our healthcare clients in this regard.

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