Thursday, February 16, 2012

Conference: Human Rights Litigation in State Courts and Under State Law

U.C. Irvine School of Law is hosting a conference entitled Human Rights Litigation in State Courts and Under State Law on Friday, March 2, 2012.

The panels look great:

9:00 a.m.-10:30 a.m. Panel 1
Human Rights Litigation in State Courts and Under State Law: The Experience So Far

  • Michael Goldhaber
  • Paul Hoffman
  • Austen Parrish
  • Moderator: Michael Robinson-Dorn

10:30 a.m.-10:45 a.m. Break

10:45 a.m.-12:15 p.m. Panel 2
Federalism and Foreign Relations Issues Raised by Human Rights Litigation in State Courts and Under State Law

  • David Kaye
  • Chimène Keitner
  • Julian Ku
  • Ed Swaine
  • Moderator: Michael Ramsey

12:15 p.m.-1:30 p.m. Lunch

1:30 p.m.-3:00 p.m. Panel 3
Conflict of Laws and Doctrinal Issues in Human Rights Litigation in State Courts and Under State Law

  • Patrick Borchers
  • Anthony Colangelo
  • Symeon Symeonides
  • Moderator: Trey Childress

3:00 p.m.-3:15 p.m. Break

3:15 p.m.-4:45 p.m. Panel 4
The Future of Human Rights Litigation in State Courts and Under State Law

  • Roger Alford
  • Lee Crawford-Boyd
  • Kristin Myles
  • Beth Stephens
  • Moderator: Chris Whytock

RJE

February 16, 2012 in Conferences/Symposia, International Courts, International/Comparative Law, State Courts | Permalink | Comments (0)

Thursday, August 4, 2011

Recent steps taken to regulate expert testimony in med mal cases

Move over, Daubert -- here’s an interesting article in the online American Medical News about states tightening up expert testimony in medical liability cases. 

--PHM

August 4, 2011 in Science, State Courts | Permalink | Comments (0)

Tuesday, July 12, 2011

California Supreme Court Holds California Confidentiality of Medical Information Act Is Not Preempted By Federal Fair Credit Reporting Act

            Plaintiff Brown and his two children were patients of dentist Reinholds.  Dr. Reinholds billed Brown $600 for a crown that Brown claimed he never received.  Brown refused to pay the bill, and Reinholds referred the debt to a collection agency (defendant Mortensen). 

            The story continues: “Over the next two years, Mortensen repeatedly disclosed the contents of Brown's and his children's dental charts to the three major national consumer reporting agencies, Experian, Equifax, and Trans Union. Additionally, Mortensen disclosed to the agencies the Browns' names, Social Security numbers, dates of birth, addresses, telephone numbers, and Brown's and his children's entire dental history with Dr. Reinholds, including alleged dental treatments.”

       Brown and his children sued Mortensen for violation of the California Confidentiality of Medical Information Act (Civ.Code, § 56 et seq.), which 

prohibits the unauthorized dissemination of individually identifiable medical information and provides for compensatory damages and other remedies. . . . The trial court sustained a demurrer with leave to amend and then, when Brown elected not to amend, dismissed the action. 

The Court of Appeal affirmed. While it rejected the trial court's conclusion that Brown's Confidentiality Act claims were impermissibly vague, it accepted Mortensen's alternative argument that the FCRA preempted them. The Court of Appeal opined that all state law claims arising from the furnishing of information to consumer reporting agencies are preempted by the FCRA. . . .  Reasoning that Mortensen had acted as a furnisher of credit information when disclosing the Browns' medical information to various credit agencies, the court affirmed dismissal.

            The California Supreme Court reversed, holding that the FCRA did not preempt the California cause of action.  Brown v. Mortensen, --- P.3d ----, 51 Cal.4th 1052, 2011 WL 2409913.  

            The Consumer Credit Reporting Reform Act of 1996 amended the FCRA by imposing affirmative duties on entities that furnish information to consumer reporting agencies, and by adding a state-law preemption clause, 15 U.S.C. § 1681t(b)(1)(F): “(b) No requirement or prohibition may be imposed under the laws of any State—[¶] (1) with respect to any subject matter regulated under—[¶] ... [¶] (F) section 1681s–2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies . . . .”

            Following four federal district courts, the California Supreme Court held that the preemption of state law was limited to the two specific areas “regulated under . . . section 1681s-2,” which are “what a furnisher must do to ensure the information it provides is accurate (a subject covered in exhaustive detail by the many subparts of § 1681s–2(a)), and what a furnisher must do upon receiving official notice that the accuracy or completeness of its information is in dispute.”  It further stated, “Our own inspection of the overall statutory scheme and the pertinent legislative history reveals evidence suggesting Congress never intended in section 1681t(b)(1)(F) to preempt state laws regulating medical privacy and thereby to relieve entities otherwise obligated to maintain confidentiality of the duty to do so when reporting credit information.”

            Thus, the claims for damages under the California Confidentiality Act, “having as their gravamen issues neither of accuracy nor of credit dispute resolution, do not involve the same subject matter as section 1681s–2 and are not preempted.”

            The article in the online journal amednews.com (American Medical News)  says Mortensen is considering petitioning SCOTUS for review.

--PHM

July 12, 2011 in Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, July 5, 2011

NYTimes Reports on NY Judicial Salary Freeze

The New York Times has an article on the judicial salary freeze in New York, reporting that many judges are leaving the bench in favor of private practice.

RJE

July 5, 2011 in In the News, State Courts | Permalink | Comments (0)

Friday, June 25, 2010

Washington Supreme Court Rejects Twombly/Iqbal

The Washington State Supreme Court decided yesterday to maintain the pleading standard that has long applied in Washington state courts, rebuffing a request to adopt the federal pleading standard that the U.S. Supreme Court embraced in Twombly and Iqbal. The decision is McCurry v. Chevy Chase Bank (No. 81896-7). Here’s an excerpt (footnote and some citations omitted):

Chevy Chase urges this court to reconsider the standard for dismissing a motion under CR 12(b)(6) in light of changes in the United States Supreme Court case law regarding Fed. R. Civ. P. 12(b)(6). Under CR 12(b)(6) a plaintiff states a claim upon which relief can be granted if it is possible that facts could be established to support the allegations in the complaint. See Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978) (“On a [CR] 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff’s allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim.”); see also Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

However the United States Supreme Court has recently revised its dismissal standard under Fed. R. Civ. P. 12(b)(6), permitting dismissal unless the claim is plausibly based upon the factual allegations in the complaint – a more difficult standard to satisfy. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Chevy Chase encourages this court to similarly construe CR 12(b)(6). We decline.

...

The Supreme Court’s plausibility standard is predicated on policy determinations specific to the federal trial courts. The Twombly Court concluded: federal trial courts are incapable of adequately preventing discovery abuses, weak claims cannot be effectively weeded out early in the discovery process, and this makes discovery expensive and encourages defendants to settle “largely groundless” claims. See 550 U.S. at 557-58, 559.  Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.

Nor has either party here addressed countervailing policy considerations. For example, do current discovery expenses justify plaintiffs’ loss of access to that discovery and general access to the courts, particularly in cases where evidence is almost exclusively in the possession of defendants? Could runaway discovery expenses be addressed by better means – perhaps involving more court oversight of the discovery process or a change in the discovery rules?

Although three Justices dissented, they agreed with the majority about the pleading standard. From the dissenting opinion: “My discussion of CR 12(b)(6) should not be confused with the Fed. R. Civ. Pr. 12(b)(6) standard articulated by the United States Supreme Court. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). I do not suggest we modify our rule to align with the federal “plausible” standard in our decision today.”

--A

(Hat Tip: Brooke Coleman)

June 25, 2010 in Recent Decisions, State Courts, Twombly/Iqbal | Permalink | Comments (0)

Monday, May 31, 2010

Bybee and Pincock on How the State "Sells" its Judiciary

Professor Keith J. Bybee (Syracuse University College of Law) and Heather Pincock have posted "Efficient, Fair, and Incomprehensible: How the State 'Sells' Its Judiciary" on SSRN.

The abstract states:

Sociolegal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply-side” perspective. Focusing on the state’s efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state’s services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades-long effort to displace local justice systems.

~clf

May 31, 2010 in Recent Scholarship, State Courts | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 14, 2010

Acquaviva & Castiglione on Judicial Diversity

Gregory L. Acquaviva (Law Clerk, Unites States Court of Appeals for the Third Circuit) and John D. Castiglione (Latham & Watkins) have posted "Judicial Diversity on State Supreme Courts" on SSRN.  It will be published in the Seton Hall Law Review.

The abstract states:

State courts of last resort are, in many ways, the primary expositors of law in the United States. Much of the law that affects people on an everyday basis - criminal law, contracts, family law, wills, trusts, and estates, just to name a few - fall within their purview. And yet we know surprisingly little about just who sits on these courts. Indeed, state supreme court judges have been aptly described as “perhaps the most important and least written about group within the judicial system” of the United States. There is little information regarding the composite characteristics of the jurists on state courts of last resort, and the last study on the characteristics and experiences of the state supreme court justices is twelve years old. 

In this Article, we present the findings of a comprehensive examination of the demographic and experiential characteristics of all judges on the courts of last resort of the fifty states. The most important part of this examination was a survey developed for this project and submitted to every state supreme court justice in the country. In this survey, we asked the justices to self-report information regarding race, gender, religion, schooling, prior work experience, community involvement, bar association membership, and pro bono experience. The raw data we collected through this survey, augmented by publicly available resources, are presented throughout and as addenda to this Article.

~clf

April 14, 2010 in Recent Scholarship, State Courts | Permalink | Comments (0) | TrackBack (0)

Monday, April 5, 2010

Dodson on Federal Pleading and State Discovery

Professor Scott Dodson (William & Mary School of Law) has posted "Federal Pleading and State Presuit Discovery" on SSRN.  It will be published in the Lewis & Clark Law Review.

The abstract states:

This Symposium Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal. Several states allow presuit discovery in state courts. The Article explores the utility and limitations of using these state presuit discovery mechanisms in state court to gain access to information that plaintiffs need to survive a federal motion to dismiss under Twombly and Iqbal.

~clf

April 5, 2010 in Discovery, Federal Courts, Recent Scholarship, State Courts, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Friday, February 19, 2010

UPDATED: Texas Supreme Court Justices Sued in Federal Court for Failing to Rule on Class Certification Appeal

Plaintiffs in a Texas state court class action against Southwestern Bell have been waiting years for the Texas Supreme Court to decide whether the trial court's order certifying the class was proper. Southwestern Bell appealed to the Texas Supreme Court in November 2005, and oral argument occurred in March 2007.

As reported here, the plaintiffs have now sued the nine Justices of the Texas Supreme Court in federal court, seeking declaratory relief. Plaintiffs are asking the court to declare that the Texas Supreme Court's delay is depriving them of their rights to due process and judicial access, and that "the Texas Supreme Court is constitutionally bound to make a decision at a meaningful time and in a meaningful manner." The case is Marketing On Hold, Inc. v. Jefferson, No. 10-cv-00104-SS (W.D. Tex.). Docket information is available via Justia and Pacer.

(Hat Tip: Roger Baron)

Update from the "be careful what you wish for" department: The Texas Supreme Court issued its 27-page decision today, reversing the lower court and decertifying the plaintiff class. It concluded that "the putative class representative failed to establish that it adequately represents the class."

(Hat Tip: Alexandra Albright)

--A

February 19, 2010 in Class Actions, Federal Courts, In the News, State Courts | Permalink | Comments (1) | TrackBack (0)

Saturday, January 2, 2010

New York Times Editorial on Managing the Increasing Number of Pro Se Litigants

New Hampshire Chief Justice John T. Broderick, Jr. and California Chief Justice Ronald M. George published an OpEd in the New York Times, entitled "A Nation of Do-It-Yourself Lawyers," regarding handling the increasing number of pro se litigants.  In addition to increasing access to counsel, the Chief Justices discussed the idea of unbundling legal services and permitting lawyers to engage in "limited scope representation" by representing the client in only part of the case.


The Chief Justices point out that: 

"some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers."

However, the Chief Justices expressed their view that the benefits to permitting limited scope representation might outweigh any of these criticisms, particularly in light of the increasing inability of many litigants to afford comprehensive legal services:

"Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved. Lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage.  In fact, we believe that limited-scope-representation rules will allow lawyers — especially sole practitioners — to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing lawyers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds."

~clf

January 2, 2010 in In the News, State Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 23, 2009

LeRoy on the Effect of Partisan Election of Judges on Judicial Review of Employment Arbitrations

Professor Michael H. LeRoy (University of Illinois College of Law) has posted "Do Partisan Elections of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations" on SSRN in the Working Paper Series.

The abstract states:

Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights.

I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable – method for selecting judges – to my database of 223 state court rulings from 1975-2008.

I relate this empirical research to a strategic model of corporate avoidance of liability in employment disputes. Some employers avoid lawsuits by requiring employment arbitration, and implementing favorable arbitration rules. When awards are appealed to court, employers continue to influence the outcome by designating the court for reviewing an award. This model suggests that some employers would expand their influence by strategically supporting judges who run for office in political campaigns.

I found that in state trial courts where an award was challenged, employees won only 32.1% of cases before party-affiliated judges. But in states where judges were appointed or elected in non-partisan races, employees prevailed in 52.7% of the cases.

The partisan election effect was not observed, however, in appellate cases. Employees won 43.2% of cases before party-affiliated judges, and 50.0% of cases before judges who were appointed or elected in non-partisan races.

My results provide preliminary and limited support for the concern that partisan judicial elections produce unequal justice for ordinary people who are not large campaign donors. But, there are important caveats. This study did not determine whether judges in these cases actually accepted campaign support from employer groups. These judges may have ruled through a more ideological prism than appointed and non-partisan judges.

In the same vein, the finding of no partisan effect at the appellate level is not conclusive – and does not mean that party-affiliated appellate judges are as neutral as their appointed counterparts. Even in partisan judicial elections, it appears that only some appellate candidates raise war chests and declare campaign positions. A seemingly biased judge, such as the justice in Caperton, can be outvoted by more neutral judges on the appellate panel, thereby muffling the effect of campaign spending in partisan elections.

My findings do not prove that employers seek venue before judges who receive their campaign contributions, but they offer preliminary statistical evidence that suggests that this is possible. The fact that employers can designate venue in an arbitration contract reinforces this possibility. In sum, the shocking example in Caperton, along with the preliminary data in my study, suggests that employers are able to expand the liability-avoidance model by donating to judges who would review their arbitration awards.

~clf

December 23, 2009 in Recent Scholarship, State Courts | Permalink | Comments (0) | TrackBack (0)

Sunday, December 6, 2009

Schwartz on the the Federal Arbitration Act

David S. Schwartz (University of Wisconsin) has posted The Federal Arbitration Act and the Power of Congress Over State Courts to SSRN.

Abstract:     
The Federal Arbitration Act is unconstitutional as it has been applied to the states over the past 20 years. In its 1984 decision in Southland Corp. v. Keating, the Supreme Court held that FAA is substantive law binding on state courts under the Supremacy Clause. The resulting doctrine of FAA preemption has nullified dozens of state contract laws, sewn confusion in the courts, and poised the FAA to become a significant "tort reform" statute. The FAA is thus an important example of a larger recent trend of efforts to impose tort reform, indirectly, by federal regulation of state court procedure.

States' sovereignty over the structure, jurisdiction and procedure of their courts is fundamental to federalism. The Supremacy Clause requires state courts to apply federal substantive law, but the constitution assumes state courts will do so applying their own neutral rules of procedure. While state courts' implementation of federal substantive law may incidentally, in isolated cases, affect state procedural rules, Congressional efforts to impose procedural rules on state courts abridge the states' "residual and inviolable sovereignty" and impermissibly commandeer both state judges and legislatures.

The FAA is procedural regulation, notwithstanding Southland. It governs contracts about procedure and overrides the fundamentally procedural allocation of decisionmaking authority between courts and arbitrators. Looked at through every relevant context in which a substance-procedure distinction has been applied, arbitration enforcement is a procedural matter, and Congress is without power to impose it on the states.

RJE

December 6, 2009 in Recent Scholarship, State Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, November 26, 2009

NY Times Editorial on the importance of funding state courts

The New York Times has run an editorial about the importance of state courts, writing that "[t]his vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits."

Happy Thanksgiving, dear readers.

RJE

November 26, 2009 in In the News, State Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

Fitzpatrick on The Politics of Merit Selection

Professor Brian T. Fitzpatrick (Vanderbilt Law School) has posted "The Politics of Merit Selection" on SSRN.  It will be published in the Missouri Law Review.  


Abstract:

In this Article, I undertake an evaluation of a method of judicial selection known as “merit selection.” The merit system is distinctive from the other systems of judicial selection in the powerful role it accords lawyers. Proponents of the merit system contend that it is superior to the other forms of judicial selection — elections or appointment by elected officials — because lawyers are more likely to select judges on the basis of “merit” and less likely to select judges on the basis of “politics” (i.e., the personal ideological preferences of judicial candidates) than are voters or elected officials. But even if lawyers are better able to identify more intelligent or more qualified judges, it does not follow that they are less inclined to consider the political beliefs of judicial candidates. Lawyers are just as likely to be concerned — if not more concerned — with the decisional propensities of judicial candidates as are voters and elected officials. Moreover, insofar as a judge’s personal ideological preferences are correlated with his or her decisions, and insofar as those preferences are often more easily observed than his or her decisional propensities, lawyers are likely to accord those preferences just as much weight as voters or elected officials. That is, merit selection may not remove politics from judicial selection so much as it moves the politics of judicial selection into closer alignment with the ideological preferences of the bar. This movement could have consequences if the distribution of ideological preferences within the bar differs from the distribution among the public. Many people believe that lawyers as a group are, on average, more liberal than are members of the general public. If this is true, then one might expect that bar associations would select judges who are more liberal than those who would have been selected by the public or their elected representatives. Although far from conclusive, I collected data on the judicial nominations in two merit states, Tennessee and Missouri, and the data is consistent with this hypothesis.


~clf

November 11, 2009 in Recent Scholarship, State Courts | Permalink | Comments (0) | TrackBack (0)

Monday, November 2, 2009

Kansas Supreme Court Considers Constitutionality of Damages Caps

Last week the Kansas Supreme Court heard oral argument in Miller v. Johnson, a medical malpractice case challenging the constitutionality of a Kansas statute that caps damages for noneconomic loss at $250,000.

The docket is available here. For additional coverage, see here and here.

(Hat Tip: How Appealing)

--A

November 2, 2009 in In the News, State Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, October 29, 2009

Pepsi Facing $1.26 Billion Default Judgment in Wisconsin

Reuters is reporting: "A Wisconsin judge has ordered PepsiCo Inc to pay $1.26 billion to two men who said it stole their idea to sell purified water after a secretary mislaid a document alerting the world's No. 2 soft drink maker the lawsuit existed."

The case is pending in Jefferson County Circuit Court. Pepsi has moved to vacate the default judgment.

For additional coverage see here.

--A

October 29, 2009 in Recent Decisions, State Courts | Permalink | Comments (0) | TrackBack (0)

Monday, October 26, 2009

E-Marriage -- using jurisdictional creativity to achieve marriage equality across state lines

Adam Candeub and Mae Kuykendall have launched a novel project at Michigan State University, College of Law.  E-marriage would allow couples to combine the law of one jurisdiction with the physical location of another.  In other words, a same sex couple in California could marry in the location of their choice by using a remote "e" officiant from a state that allows same sex marriage, such as Massachusetts.

Procedure and fed courts professors will recognize many familiar issues including choice of law, internet jurisdiction issues, full faith and credit issues, and the increasingly blurry boundaries of physical territoriality.

The E-Marriage Project has a home on the MSU website.  The proposal is available as a paper on SSRN, and is further described in an MSU press release.

RJE

October 26, 2009 in Current Affairs, Recent Scholarship, State Courts | Permalink | Comments (0)

California provides free representation in certain civil cases

California has a new program to fund public interest lawyers to provide free representation to all indigent civil litigants involved in certain types of cases, such as home foreclosures, domestic violence cases, cases alleging predatory lending practices and others.  The pilot program, which lasts through 2017, will be paid for by a $10 increase in court fees.  


The program is designed to address inequities that might result when litigants represent themselves in cases involving important family law and social justice issues.  With this program, California appears to provide free representation in the broadest array of cases of any state so far.  The program has been praised for making legal services available to indigent people facing serious legal problems, but it has been criticized as diverting funds from other important social justice programs, such as improved law enforcement and day care programs.

The Los Angeles Times provides more coverage about this program here.

~clf

October 26, 2009 in Current Affairs, State Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 21, 2009

Prof. Connors on Allocating the Costs of Discovery

Professor Patrick Connors (Albany) has posted Which Party Pays the Costs of Document Disclosure?, 29 Pace L. Rev. 441 (2009) on SSRN. Here's the abstract:

The disclosure of electronically stored information has become an integral part of litigation in the twenty-first century; accordingly, the concomitant costs of document production have significantly increased. CPLR Article 31 does not expressly state which party is responsible for the costs of production incurred in response to a demand for "documents or any things." This article explores the development of a questionable rule cited by several New York State tribunals in allocating the costs of document disclosure, while suggesting that the courts adhere to CPLR Article 31's more flexible approach.

In Lipco Elec. Corp. v. ASG Consulting Corp, the New York Supreme Court concluded that "the party seeking discovery should incur the costs incurred in the production of discovery material." However, this rule limits the inherent flexibility of Article 31, and is neither supported by the text of the CPLR, nor by the case law cited in the opinion. This article respectfully submits that the disclosure process will function more efficiently and fairly without a general rule requiring the party seeking "documents or any things" to bear the costs of production. Parties should be encouraged to discuss disclosure costs as early as possible, and request a protective order from the court if necessary.

--A

October 21, 2009 in Discovery, Recent Scholarship, State Courts | Permalink | Comments (0) | TrackBack (0)