Tag Archives: rule

Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

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Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26’s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30’s and 31’s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

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New Mortgage Loan Regulations

The Consumer Financial Protection Bureau issued two regulations that expand the types of mortgage loans subject to federal protections and require creditors to provide loan applicants with written appraisals.  You can access the regulations here.

One of the regulations expands the types of mortgage loans subject to the protections of the Home Ownership and Equity Protections Act HOEPA, which was enacted to address abusive refinancing practices and equity loans with high interest rates or high fees.  HOEPA was amended through the Dodd-Frank Wall Street Reform and Consumer Protection Act to add protections for high-cost mortgages.

Among the changes, the regulation requires borrowers to receive home ownership counseling before obtaining a high-cost mortgage.

The regulation also adds exemptions for three types of loans the CFPB does not believe are as risky: loans to finance initial construction of a house, loans originated and financed by housing finance agencies, and loans from the U.S. Department of Agricultures Rural Housing Service loan program.

The CFPB also issued a rule that would require creditors to provide applicants with free copies of all appraisals and other written valuations and requiring creditors to notify applicants in writing.

The rule is consistent with an amendment to the Equal Credit Opportunity Act. Previously, creditors only had to provide copies of appraisals when applicants requested them.

Creditors are prohibited from charging applicants for copies of appraisals, but may charge for appraisals and other written valuations.

Both rules become effective January 18, 2014.

via Courthouse News Service.

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New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords

In what could be the first such law in the country, Maryland has enacted a bill that would prohibit employers from demanding personal passwords to social media sites such as Facebook from job applicants and workers.

State lawmakers last week almost unanimously approved making such information private, in response to reports that a growing number of employers are seeking access to individuals’ personal social media accounts to gather information for job-related decision-making, Raycom News Network reports.

The bill will take effect as law after it is signed into law by the state governor, the Gazette reports.

The American Civil Liberties Union of Maryland favored the new measure. The state Chamber of Commerce opposed it.

While no one wants others to read private messages, the chamber had hoped lawmakers would recognize that there may be legitimate reason for employers to review social media sites, said lawyer and employment practitioner Elizabeth Torphy-Donzella of Shawe Rosenthal. Her Baltimore-based law firm represents the chamber.

Similar legislation is being pursued in California and Illinois and in Congress, the Baltimore Sun reports.

The Washington Post’s Capitol Business Blog says Michigan also is considering such a law.

via New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords – News – ABA Journal.

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