Subpoena to Cricket

Posted on May 17, 2013 by Michael Lowry

One of the more popular posts on this blog discussed various considerations for sending subpoenas to wireless carriers. An important question in sending a subpoena is, what is the wireless carrier’s retention period? The retention period varies from carrier to carrier and seems to evolve as their policies do. After the retention period expires, call logs and text message logs are apparently deleted as part of a routine data purge.

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As of this post, I can tell you Cricket “only maintain records for last [sic] six months.” This is problematic for civil litigants as the probability of being able to send a subpoena within six months of an event is low.

Joint Case Conference Report After Request for Trial De Novo

Posted on May 13, 2013 by Michael Lowry

In an effort to control the court dockets and speed the resolution of civil matters, in the early 1990s Nevada’s state courts implemented a diversion program for smaller civil suits At its most basic, with certain exceptions, cases with a preliminary value of less than $50,000 are assigned to a non-binding arbitration program. The program features accelerated discovery and hearing deadlines which encourage efficient handing. The program offers many benefits to all involved. Yet, because the program is non-binding, there is a procedure by which any party may remove the case to a state district court after the arbitration hearing. At that point, the process starts over.

The assignment of an arbitrator also tolls the time period within which to hold the NRCP 16.1(b)(1) early case conference (“ECC”) and the filing of the resulting joint case conference report (“JCCR”). Assume for this post that a case has proceeded through the arbitration and a party has appropriately requested the case be removed to state district court. What are the requirements for an ECC or a new JCCR?

NRCP 16.1(b)(1) is a good place to start. It states

Unless otherwise ordered by the court or the discovery commissioner, parties to any case wherein a timely trial de novo request has been filed subsequent to an arbitration, need not hold a further in person conference, but must file a joint case conference report pursuant to subdivision (c) of this rule within 60 days from the date of the de novo filing, said report to be prepared by the party requesting the trial de novo.

The rule itself creates two questions for me preliminarily and thus far I am unaware of case law from the Supreme Court of Nevada resolving them. First, the rule clearly eliminates the requirement of a new early case conference, but still requires a joint case conference report. Although not explicitly stated, it appears if a party removes an arbitration case to district court, the original 240 day window within which to file a joint case conference report in a case not exempted from arbitration is displaced by this shorter 60 day rule.

This leads to the second question. In a non-arbitration case, if the plaintiff fails to file the JCCR within 240 days, NRCP 16.1(e)(2) states “the case may be dismissed as to that defendant upon motion or on the court’s own initiative, without prejudice.” There is no explicit equivalent to NRCP 16.1(e)(2) for cases removed from arbitration to the district court. It seems logical to conclude the same policy reasons apply and a violation of the 60 day requirement of NRCP 16.1(b)(1) would trigger the consequences of NRCP 16.1(e)(2).

The other factor to consider is the party requesting trial de novo is responsible for filing the JCCR when the case is removed to district court. In every other case, this burden falls upon a plaintiff. What if the defendant requests the trial de novo but fails to file the JCCR within 60 days? This is not an issue I have yet encountered but is one to consider.

Deposition Baddies Run Amok

Posted on May 10, 2013 by Michael Lowry

It is May in Las Vegas. As we prepare for the heat to arrive, prompting those who can to flee, it is time for a lighter post.

First, I refer you to Oleson v. Kmart Corp., 175 F.R.D. 560 (D. Kan. 1997). The opening paragraph of the decision tells you all you need to know.

This case represents one of the most adversarial, abusive, and unprofessional approaches to discovery witnessed by the court. The court presently has approximately one foot of discovery disputes to be resolved. The court has previously urged counsel to attempt to resolve their discovery disputes, focus their efforts and devote their time and energy to preparing this case for final resolution on the merits, to no avail. Consequently, the parties have usurped the court’s time and resources for petty discovery disputes, most of which do not involve issues which should have required the court’s intervention. Counsel have often ignored the Federal Rules of Civil Procedure and the Rules of Practice of the United States District Court for the District of Kansas. For the court to address each and every issue raised by the parties, weeks of the court’s time would be devoted solely to this case of unseemly bickering and unprofessional conduct. The case has been unnecessarily delayed and the expense unreasonably increased as counsel for the parties have engaged in behavior which has been calculated to be dilatory, obstructive, adversarial, and unproductive.

Id. at 562-63. The court went so far as to name individual attorneys in the decision. I hope you get the picture. The decision dressed down the defendant’s counsel for nearly every discovery abuse you can imagine. From boilerplate objections to deposition misconduct, it was all covered and documented for all time in a published decision. Ouch.

Second, is Hackett v. Segerblom, 2007 U.S. Dist. LEXIS 57454, 2007 WL 2254708 (D. Nev. 2007). The motion concerned problems during the plaintiff’s deposition. Specially, plaintiff’s counsel instructed her not to answer basic background questions on “relevancy” grounds and refused to permit her client to testify as to when she first contacted counsel concerning her claim. Counsel was also clearly documented coaching her client how to answer one particular question.

The court’s opinion is professional and to the point. It noted this conduct was inappropriate and imposed sanctions which were to be determined later. It also stated the date upon which a person first contacted counsel is not, unto itself, privileged information.

Objecting to Discovery Commissioner’s Report and Recommendations

Posted on May 6, 2013 by Michael Lowry

It is inevitable that everyone will lose a discovery motion someday and feel the need to object to it. Locally, there are very specific rules governing these objections and timelines within which the objection must be served. One unanswered question is what standard of review will the district court apply to the objection? Will the court review it for abuse of discretion, a de novo standard or something else? This issue and potential answers to it were explored in an article I authored for the May, 2013 Communique, entitled The Unanswered Question When Objecting to a Discovery Commissioner’s Report and Recommendations.

In attending CLEs and various conferences, I have learned the standard varies depending upon the district court handling the objection. For instance, based upon an April 2, 2013 hearing in 09A588346, I am aware Judge Miley appears to apply an abuse of discretion standard.

The May, 2013 Communique is also worth reading for an article jointly authored by DCs Bulla and Beecroft concerning their implementation of the 2012 revisions to disclose requirements for non-retained experts.

ECC Dispute Conference

Posted on April 29, 2013 by Michael Lowry

In Nevada’s state courts, NRCP 16.1(b)(1) mandates an early case conference (“ECC”) to establish the parameters of discovery. Say Plaintiff notices early case conference as he must but Defendant does not appear. As a result, Plaintiff files individual case conference report and within days all parties receive an invitation to appear in discovery to explain why. This is not particularly uncommon, attorneys can be in trial (gasp!), on vacation or the file could be in transition to a different handling attorney or perhaps, just perhaps, the ECC notice never arrived.

What can Defendant do to avoid a Tuesday morning in discovery? There is a simple solution. First, review the plaintiff’s individual case conference report. If you can live with the deadlines it proposes, simply file a joinder to it in full. I had one case where the ECC notice was emailed to the handling attorney (proper service aside) who was in trial and could not appear anyway, so an individual case conference report was filed and we were all invited to spend a beautiful Tuesday morning in Discovery. When I was looped in I filed a joinder to the individual case conference report. The hearing was then vacated a couple business days before it was scheduled to occur.

Second, if you file a joint case conference report, individual case conference report or even just the joinder I just described, do not file your exhibits to your initial disclosure as an attachment. All that need be attached is the list of witnesses and documents. Anything else is in violation of EDCR 2.27(e) and, as I recently observed, may subject offenders to financial sanctions.