DISCOVERY GONE BAD
Sponsor: Young Lawyers Division CLE Credit: 1.0 Thursday, June 19, 2014 10:50 a.m. - 11:50 a.m. Ballroom B Northern Kentucky Convention Center Covington, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.
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Kentucky Bar Association TABLE OF CONTENTS
The Presenters ...... i
Report of the Parties' Planning Meeting ...... 1
Court Orders Regarding Discovery Disputes ...... 5
Appendix Links to Rules of Civil Procedure and Local Rules ...... 15
THE PRESENTERS
Robert M. Croft, Jr. Dinsmore & Shohl, LLP 7620 Beech Spring Court Louisville, Kentucky 40241 (502) 540-2352 [email protected]
ROBERT M. CROFT, JR. is an associate in Dinsmore’s Louisville and Lexington offices, where he is a member of the Product Liability and Toxic Tort Practice Groups. Mr. Croft concentrates his practice in the areas of product and premises liability, insurance coverage issues, and commercial litigation. In addition to his membership with the Kentucky Bar Association, he is a member of the Fayette County Bar Association, Louisville Bar Association, and the Defense Research Institute. Mr. Croft received a B.A. in political science and drama from Transylvania University in 2002 and his J.D. from the University of Kentucky College of Law in 2006. Mr. Croft is a Muhammad Ali Center Board Member, University of Kentucky College of Law Alumni Association Board Member and volunteers with the Chestnut Street YMCA in Louisville. Mr. Croft was also selected for the 2014 Kentucky Rising Stars ® List.
Robert L. Elliott Elliott Houlihan & Skidmore, LLP BB & T Bank Plaza 200 West Vine Street, Suite 810 Lexington, Kentucky 40507 (859) 233-2700 [email protected]
ROBERT L. ELLIOTT is a member of Elliott Houlihan & Skidmore, LLP in Lexington where he concentrates his practice in the areas of medical negligence, products liability, and personal injury. Mr. Elliott received his B.A. from Centre College and his J.D. from the University of Kentucky College of Law. He is admitted to practice before the United States District Court, Eastern District of Kentucky, and the United States Court of Appeals, Sixth Circuit. Mr. Elliott is a member of the Fayette County, Kentucky and American Bar Associations, Kentucky Justice Association, Association of Trial Lawyers of America, Kentucky Independent College Fund, and Kentucky Health Care Access Foundation. He is a former President of the both the Fayette County and Kentucky Bar Associations and the recipient of the KBA's 2006 Justice Thomas B. Spain Award.
i Judge James D. Ishmael, Jr. Fayette Circuit Court, Third Division 120 North Limestone, Fifth Floor Lexington, Kentucky 40507 (859) 246-2218 [email protected]
JUDGE JAMES "JIM" D. ISHMAEL, JR. is a Circuit Judge in Fayette County, first taking the bench in 2004. Judge Ishmael received his B.S. in mathematics from Eastern Kentucky University and his J.D. from the University of Louisville's Louis D. Brandeis School of Law. Judge Ishmael is admitted to practice before the United States Supreme Court as well as the United States District Court for the Eastern District of Kentucky.
Judge Mitchell L. Perry Jefferson Circuit Court 5210 Eastwind Road Louisville, Kentucky 40207-1628 (502) 595-4919 [email protected]
JUDGE MITCHELL L. PERRY is the presiding judge over Division Three of the Thirteenth Judicial Circuit in Lousiville. Judge Perry was elected in November of 2006. Prior to taking the bench, he served as an Assistant County Attorney in Jefferson County. Judge Perry also served as an Assistant Attorney General, worked with the City of Louisville, and maintained a private practice focused primarily in the areas of employment law, civil rights, and public safety litigation. Judge Perry is a veteran of the United States Air Force and the Air National Guard. He retired in 2011 after thirty years of service at the rank of Colonel.
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE CIVIL ACTION NO.*****-*******-****** Electronically Filed
STEVE SMITH PLAINTIFF
v. REPORT OF THE PARTIES' PLANNING MEETING
ABC TRUCKING and DUSTY STOCKARD DEFENDANTS
* * * * *
1. The following persons participated in a Rule 26(f) conference on December 31, 2009, by teleconference:
John Doe for Plaintiff Steve Smith;
Jim Jones for Defendants ABC Trucking and Dusty Stockard.
2. Initial Disclosures. The parties will complete by January 15, 2014, the initial disclosures required by Rule 26(a)(1).
3. Discovery Plan. The parties propose the following discovery plan:
(a) Discovery will be needed on these subjections:
1) The cause of the subject motor vehicle accident;
2) The damages, if any, Plaintiff sustained as a result of the subject motor vehicle accident.
(b) All discovery will be commenced in time to be completed by September 15, 2014.
(c) A maximum number of thirty (30) Interrogatories by each party to any other party. Responses are due thirty (30) days after service.
(d) A maximum number of thirty (30) Requests for Admissions by each party to any other party. Responses are due thirty (30) days after service.
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(e) A maximum number of fifteen (15) depositions by Plaintiff and fifteen (15) depositions by Defendants.
(f) Each deposition shall be limited to a maximum of seven (7) hours unless extended by agreement of the parties.
(g) Reports from retained experts under Rule 26(a)(2) are due:
1) From Plaintiff by June 1, 2014.
2) From Defendants by July 15, 2014.
4. Other Items:
(a) The parties do not request a conference with the Court before entry of the scheduling order.
(b) The parties request a pretrial conference thirty (30) days prior to trial or at the Court's convenience.
(c) Plaintiff shall amend pleadings or join parties by July 1, 2014.
(d) Defendant shall amend pleadings or join parties by August 1, 2014.
(e) All dispositive motions and motions in limine shall be filed by October 15, 2014.
(f) The parties agree that settlement cannot be evaluated at this time.
(g) The parties agree that once the case is in a proper position for settlement evaluation, the parties are amenable to a mediation with a private mediator.
(h) Final lists of witnesses and exhibits under Rule 26(a)(3) should be due from Plaintiff thirty (30) days prior to the pretrial conference and from Defendants fifteen (15) days prior to the pretrial conference.
(i) Objections under Rule 26(a)(3) shall be filed seven (7) days prior to the pre-trial conference.
(j) This case should be ready for trial in November 2014 and should take approximately two to three days.
(k) Other Matters.
1) The parties agree that this matter may be referred to a United States Magistrate Judge for all purposes, including entry of judgment.
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JOHN DOE P.O. BOX 1234 Lexington, KY 40502 COUNSEL FOR PLAINTIFFS
s/ John Doe ______COUNSEL FOR PLAINTIFF
JIM JONES P.O. Box 5678 Lexington, Kentucky 40502
s/ Jim Jones ______COUNSEL FOR DEFENDANTS
Certificate of Service
I hereby certify that on January 6, 2014, I electronically filed the foregoing with the Clerk of the United States District Court of the Eastern District of Kentucky via the CM/ECF system, which will send Notice of Electronic Filing to:
John Doe P.O. BOX 1234 Lexington, KY 40502 COUNSEL FOR PLAINTIFFS
s/ Jim Jones ______COUNSEL FOR DEFENDANTS
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COURT ORDERS REGARDING DISCOVERY DISPUTES
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
THERESA MORRIS, WIFE OF BOB MORRIS, Plaintiff,
-vs- Case Nos. A-11-MC-712-SS A-11-MC-713-SS A-11-MC-714-SS A-11-MC-715-SS
JOHN COKER, ALLIS-CHALMERS CORPORATION AND/OR STRATE DIRECTIONAL DRILLING, INC., Defendants.
ORDER
BE IT REMEMBERED on this day the Court reviewed the files in the above- styled causes, and now enters the following opinion and orders.
Non-parties Lance Langford, Erik Hoover, and Brigham Oil & Gas, L.P. invite the Court to quash subpoenas issued to them on behalf of Jonathan L. Woods, in relation to a matter currently pending in the United States District Court for the Western District of Louisiana, Lafayette-Opelousas Division, because the subpoenas were not properly served, are overly broad and unduly burdensome, and seek privileged information. In response, the Court issues the following invitation of its own:
Greetings and Salutations!
You are invited to a kindergarten party on THURSDAY, SEPTEMBER 1, 2011, at 10:00 a.m. in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas.
The party will feature many exciting and informative lessons, including:
• How to telephone and communicate with a lawyer
• How to enter into reasonable agreements about deposition dates
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• How to limit depositions to reasonable subject matter • Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when notice is reasonably given; and
• An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.
Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch! The United States Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.
Accordingly,
IT IS ORDERED that defense counsel Jonathan L. Woods, and movants' attorney Travis Barton, shall appear in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas, on THURSDAY, SEPTEMBER 1, 2011, at 10:00 a.m., for a memorable and exciting event;
IT IS FINALLY ORDERED that Mr. Barton is responsible for notifying Mr. Woods of this order by providing him with a copy by mail or fax on this date.
SIGNED this the 26th day of August 2011.
s/ Sam Sparks SAM SPARKS UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
AVISTA MANAGEMENT, INC., d/b/a Avista Plex, Inc.,
Plaintiff,
-vs- Case No. 6:05-cv-1430-0ri-31JGG (Consolidated)
WAUSAU UNDERWRITERS INSURANCE COMPANY,
Defendant.
ORDER
This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is
ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.
DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.
Copies furnished to: s/ Gregory A. Presnell GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
Counsel of Record Unrepresented Party
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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY
CV 2003-020242 07/19/2006
JUDGE PENDLETON GAINES CLERK OF THE COURT A. Beery Deputy
FILED: 07/21/2006
PHYSICIANS CHOICE OF ARIZONA INC DAVID A SELDEN
v.
MICKEY MILLER, et al. DOW GLENN OSTLUND
DAVID ROSENBAUM ROSENBAUM & ASSOCIATES PC 650 DUNDEE RD STE 380 NORTHBROOK IL 60062
RULINGS ON PENDING MOTIONS
The Court has reviewed the pending motions. Two will be granted. The others will be deferred.
Plaintiffs Motion to Compel Acceptance of Lunch Invitation
The Court has rarely seen a motion with more merit. The motion will be granted.
The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff's motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.
The writers support the concept. Conversation has been called "the socializing instrument par excellence" (Jose Ortega y Gasset, Invertebrate Spain) and "one of the greatest pleasures in life" (Somerset Maugham, The Moon and Sixpence). John Dryden referred to "Sweet discourse, the banquet of the mind" (The Flower and the Leaf).
Plaintiff's counsel extended a lunch invitation to Defendant's counsel "to have a discussion regarding discovery and other matters." Plaintiff's counsel offered to "pay for lunch." Defendant's counsel failed to respond until the motion was filed.
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Defendant's counsel distrusts Plaintiff's counsel's motives and fears that Plaintiff's counsel's purpose is to persuade Defendant's counsel of the lack of merit in the defense case. The Court has no doubt of Defendant's counsel's ability to withstand Plaintiff's counsel's blandishments and to respond sally for sally and barb for barb. Defendant's counsel now makes what may be an illusory acceptance of Plaintiff's counsel's invitation by saying, "We would love to have lunch at Ruth's Chris with/on ..." Plaintiff's counsel.1
Plaintiff's counsel replies somewhat petulantly, criticizing Defendant's counsel's acceptance of the lunch invitation on the grounds that Defendant's counsel is "now attempting to choose the location" and saying that he "will oblige," but Defendant's counsel "will pay for its own meal."
There are a number of fine restaurants within easy driving distance of both counsel's offices, e.g., Christopher's, Vincent's, Morton's, Donovan's, Bistro 24 at the Ritz-Carlton, The Arizona Biltmore Grill, Sam's Cafe (Biltmore location), Alexi's, Sophie's and, if either counsel has a membership, the Phoenix Country Club and the University Club. Counsel may select their own venue or, if unable to agree, shall select from this list in order. The time will be noon during a normal business day. The lunch must be conducted and concluded not later than August 18, 2006.2
Each side may be represented by no more than two (2) lawyers of its own choosing, but the principal counsel on the pending motions must personally appear.
The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant.3 A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS §12-331(5).
During lunch, counsel will confer regarding the disputes identified in Plaintiff's motion to strike Defendant's discovery motion and Defendant's motions to quash, for protective order and for commission authorizing out-of-state depositions.4 At the initiative of Plaintiff's counsel, a brief joint report detailing the parties' agreements and disagreements regarding these motions will be filed with the Court not later than one week following the lunch and, in any event, not later than noon, Wednesday, August 23, 2006.
1 Everyone knows that Ruth's Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.
2 The Court is aware of the penchant of Plaintiff's counsel to take extended cruises during the summer months.
3 Alcoholic beverages may be consumed, but at the personal expense of the consumer.
4 The Court suggests that serious discussion occur after counsel have eaten. The temperaments of the Court's children always improved after a meal.
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Defendant's Motion to Strike Proposed Amended Complaint
To demonstrate to counsel that the Court has more on its mind than lunch, the Court has considered Defendant's motion to strike Plaintiff's proposed amended complaint. The motion will be granted.
Plaintiff's proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme. It violates the Court's order of July 22, 2005, permitting the Plaintiff to file "an agreed- upon form of Amended Complaint to clean up housekeeping matters." It is not the "short and plain statement" required by Rule 8(a)(2). It is a pleading of a type specifically condemned in Anserv Ins. Services, Inc., vs. Albrecht, 192 Ariz. 48, 49-50 (Ariz. 1998) (trial court should have stricken 269-page, 1322-paragraph complaint). Most importantly, it violates the observation of French philosopher Blaise Pascal, who concluded a long letter with an apology, saying he "had not the leisure to make it shorter." Since this is a 2003 case with no end in sight, Plaintiff's counsel has the leisure to make his complaint shorter.
ORDER
IT IS ORDERED:
1. Plaintiff's motion to compel Defendant's counsel's acceptance of lunch invitation is granted on the terms and conditions set forth above.
2. The parties are directed to file the joint report referred to above.
3. Further action on the parties' pending discovery motions is deferred pending receipt of the joint report.
4. Defendant's motion to strike Plaintiff's proposed amended complaint is granted.
5. The oral argument set in this division on August 2, 2006, at 9:15 a.m. is vacated.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
RUTH WAGGONER, INDIVIDUALLY § AND AS REPRESENTATIVE OF THE § ESTATE OF WILLIAM H. WAGGONER § AND RONALD WAGGONER, § PLAINTIFFS, § § CAUSE NO. A-07-CA-703-JRN V. § § WAL-MART STORES, INC, THE § STANLEY WORKS, INC, WAL-MART § STORES TEXAS, LLC, AND STANLEY § ACCESS TECHNOLOGIES, LLC, § DEFENDANTS. §
ORDER
Before the Court in the above-entitled and styled cause of action is Defendant Wal-Mart Stores Texas, L.L.C.'s Opposed Motion for a Protective Order, filed May 29, 2008 (Doc. #26). Apparently, the parties are unable to agree if the deposition of Wal- Mart's corporate representative should occur in San Antonio, Texas or in Bentonville, Arkansas.
The Court is sympathetic with Defendant's argument. Surely Defendant's corporate representative, a resident of Arkansas, would feel great humiliation by being forced to enter the home state of the of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record.1
On the other hand, the Court is sympathetic with Plaintiffs position. Plaintiffs might enter Arkansas with a bit of trepidation as many residents of Arkansas are still seeking retribution for the "Game of the Century" in which James Street and Darrell Royal stunned the Razorbacks by winning the 1969 National Championship.2
Because the Court is sympathetic to both parties' positions, it has found a neutral site, intended to avoid both humiliation and trepidation of retribution.
1 It is worth noting that the Razorbacks, who disgracefully retreated from the Southwest Conference to the gentler pastures of the Southeastern Conference, could have likely learned a lesson about stamina and perseverance in the face of battle by visiting the Alamo in San Antonio.
2 The Court takes judicial notice that the "Game of the Century" for the current century occurred on January 4, 2006 when Vince Young and Mack Brown led the Longhorns in a 41-38 win over the USC Trojans, thus securing the 2005 National Championship.
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ACCORDINGLY, IT IS ORDERED THAT unless the parties agree otherwise, the deposition of Defendant's corporate representative shall occur at 9 AM on June 11, 2008 on the steps of the Texarkana Federal Building, 500 State Line Avenue, TX/AR 71854.
IT IS FURTHER ORDERED THAT each party is to remain on his or her respective side of the state line.
SIGNED this 3rd day of May, 2008.
s/ James R. Nowlin JAMES R. NOWLIN UNITED STATES DISTRICT JUDGE
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APPENDIX RULES OF CIVIL PROCEDURE AND LOCAL RULES PERTAINING TO DISCOVERY
I. KENTUCKY RULES OF CIVIL PROCEDURE 26-37
A. CR 26.01
B. CR 26.02
C. CR 26.03
D. CR 26.04
E. CR 26.05
F. CR 26.06
G. CR 27.01
H. CR 27.02
I. CR 27.03
J. CR 28.01
K. CR 28.02
L. CR 28.03
M. CR 29
N. CR 30.01
O. CR 30.02
P. CR 30.03
Q. CR 30.04
R. CR 30.05
S. CR 30.06
T. CR 30.07
U. CR 31.01
V. CR 31.02
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W. CR 32.01
X. CR 32.02
Y. CR 32.03
Z. CR 32.04
AA. CR 33.01
BB. CR 33.02
CC. CR 33.03
DD. CR 34.01
EE. CR 34.02
FF. CR 34.03
GG. CR 35.01
HH. CR 35.02
II. CR 36.01
JJ. CR 36.02
KK. CR 37.01
LL. CR 37.02
MM. CR 37.03
NN. CR 37.04
OO. CR 37.05
II. FEDERAL RULES OF CIVIL PROCEDURE 26-37
A. FCRP Rule 26
B. FCRP Rule 27
C. FCRP Rule 28
D. FCRP Rule 29
E. FCRP Rule 30
F. FCRP Rule 31
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G. FCRP Rule 32
H. FCRP Rule 33
I. FCRP Rule 34
J. FCRP Rule 35
K. FCRP Rule 36
L. FCRP Rule 37
M. FCRP Rule 38
III. LOCAL RULES OF PRACTICE FOR THE EASTERN AND WESTERN DISTRICT OF KENTUCKY, JEFFERSON COUNTY, FAYETTE COUNTY
A. LR 16.2
B. LR 26.1
C. LR 37.1
D. Order Approving Amendments to the Local Rules of Practice for the 22nd Judicial Circuit, Fayette Circuit Court
E. Rules of Practice of the Fayette Circuit Criminal and Civil Courts
F. Order Approving the Rules of Practice and Procedure of the Thirtieth Judicial Circuit, Jefferson Circuit Court
G. Rule 4 Motion Practice
IV. FEDERAL RULE OF CIVIL PROCEDURE 16
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