EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, June 11, 2011

The Power Of The Claw: What Are Clawback Agreements And How Popular Are They?

Enacted in 2008, Federal Rule of Evidence 502(b) provides that

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Meanwhile, Federal Rule of Evidence 502(d) indicates that

A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.

Moreover, the Advisory Committee's Note to Rule 502(d) states that

Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.
There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005), for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and “quick peek” arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into "so-called 'claw-back' agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents"). The rule provides a party with a predictable protection from a court order--predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.
Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order. (emphasis added).

I have two goals in this post: (1) to discuss the effect of clawback requests and clawback agreements; and (2) to call attention to a blog post with some anecdotal evidence concerning the (in)frequency of clawbacks.

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June 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 10, 2011

Dog Day Afternoon: Casey Anthony Trial Raises Questions About Cadaver Dogs

With the Casey Anthony trial, most of America is becoming acquainted for the first time with the "cadaver dog." Here is an excerpt from a CNN article about the cadaver dog's role in the investigation of the death of Caylee Anthony:

A dog trained to locate human remains alerted his handler to them in two locations: the trunk of Casey Anthony's car and a corner of her parents' back yard, the handler testified in Anthony's capital murder trial Tuesday.

On first pass by the dog, Gerus, around Anthony's white Pontiac Sunfire on July 17, 2008, "he started indicating in the rear of the vehicle," said Orange County, Florida, sheriff's Deputy Jason Forgery, a K-9 handler. "I could tell he was working something."

As the dog came around the front of the car, Forgery said he asked that the trunk be opened. When Gerus came around to the trunk, he put his front paws inside, then lay down -- a signal to Forgery that he had detected the scent of remains.

He said Gerus also alerted in the southeast corner of the Anthony back yard. However, during a cross-examination that grew testy at times, Forgery told defense attorney Jose Baez that after technicians had examined the area and scraped the surface of the land, he returned the following day and the dog did not alert in the back yard.

And here is a video clip of some of Forgery's testimony, including an interesting cross-examination by defense counsel regarding the (in)accuracy of cadaver dogs:

I think that most people have more familiarity with drug-sniffing dogs, dogs who track a suspect from a crime scene, and scent-lineup dogs, which are

exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

In this post, I have two goals: (1) comparing the qualification of these latter two types of dogs and cadaver dogs for expert testimony purposes; and (2) considering whether dog "searches" should be allowed without warrants under the Fourth Amendment given yesterday's post.

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June 10, 2011 | Permalink | Comments (1) | TrackBack (0)

Thursday, June 9, 2011

Article Of Interest: Thomas Crocker's The Political Fourth Amendment

I have written five previous posts (herehereherehere, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Invariably, federal courts find that there is no warrant requirement under the Fourth Amendment pursuant to United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., United States v. Cuevas-Perez, 2011 WL 1585072 (7th Cir. 2011). State courts are divided on the issue, but not based upon differing interpretations of the Fourth Amendment. Instead, while some courts adhere to federal precedent, other courts find that attaching a GPS device to a suspect's vehicle without a warrant violates state constitutional law provisions (for instance, Massachusetts found such an attachment to be a seizure under its state constitution).

Neither the majority nor the concurring opinion in Foltz v. Commonwealth, 706 S.E.2d 914 (Va.App. 2011), deviated from standard operating procedure, but the concurring opinion suggested a fundamental recalibration of how we think of the Fourth Amendment. The same goes for a terrific recent article, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010), by Thomas Crocker, a professor at the University of South Carolina School of Law. This post will consider the trenchant arguments made by both the opinion and the article.

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June 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 8, 2011

Higher Learning: EDVA Finds Documents Submitted Without Expert Testimony Not Admissible As Learned Treatises

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for learned treatises. Specifically, it provides an exception

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Thus, learned treatises can be admitted but only in conjunction with expert testimony, which created a problem for the plaintiff in Hogge v. Stephens, 2011 WL 2161100 (E.D.Va. 2011).

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June 8, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 7, 2011

Judge Advocate?: Court Of Appeals Of Indiana Refuses To Become An Advocate For Defendant In Connection With Waived Rule 609(b) Argument

Indiana Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, let's say that a defendant is convicted of unlawful possession of a firearm by a serious violent felon in August 2010 without prior notice by the prosecution. And let's say that at trial, the prosecution impeached the defendant with evidence of his 1970 conviction for burglary. Finally, let's say that the defendant later appeals, claiming, inter alia, claiming that the introduction of evidence of his prior conviction deprived him of the presumption of innocence, but, as at trial, he makes no reference to the prosecution's lack of notice. What should the appellate court do? According to the recent opinion of the Court of Appeals of Indiana in Teague v. State, 2011 WL 2138887 (Ind.App. 2011), the answer is "absolutely nothing."

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June 7, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, June 6, 2011

When Innocence Is Pink: Why There Is A Gender Gap In Exonerations Of The Wrongfully Convicted And Efforts That Might Shrink It

There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, "There have been 271 post-conviction DNA exonerations in United States history." The Innocence Project has profiles of each of the exonerees and their cases on its website, and these profiles provide both a compelling read and a powerful indictment of the criminal justice system in this country.

Until I read Sandra Svoboda's article, When innocence is pink, however, I hadn't noticed something very important about these exonerees: Only 4 of them are women. When you think about this for a second, it make sense. In her article, Svoboda begins by telling the tale of Julie Rae Harper's wrongful conviction for murder and her ultimate exoneration and then notes that

While much attention has been given to the hundreds of men who have been exonerated of rapes and murders by DNA evidence during the last decade, Harper is among the handful of wrongly convicted women who have had their cases re-examined and their guilty verdicts changed without the relative luxury of such science and forensic proof.

The goal of this post is two-fold: First, I want to highlight some of the most interesting parts of Svoboda's article. Second, I want to discuss two efforts that could lead to a shrinking of the exoneration gap.

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June 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 5, 2011

If It Ain't Broke: Daniel Capra's Response To Sam Stonefield's Proposal To Amende Rule 801(d)

Last week, I posted an entry about Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011). In the article, Professor Stonefield contends that the Federal Rules of Evidence wrongfully classify statements such as admissions as "not hearsay" under Federal Rule of Evidence 801(d). And, while he acknowledges that this imprecision has not led to any real substantive errors in cases across the country, he puts forth a few compelling proposals for amending Rule 801(d).

As I have noted, the Federal Rules of Evidence are currently being restyled, and Professor Stonefield sent his article to the Advisory Committee on Evidence Rules as a formal proposal to amend the Federal Rules of Evidence. As I noted in my previous post, Professor Stonefield told me that 

The article was presented to and discussed by the Advisory Committee on Evidence Rules at their October, 2010 meeting.  The Committee subsequently wrote that, while "agree[ing] in principle with [my] proposal" that Rule 801(d) should be amended and admissions and prior statements treated as separate hearsay exceptions, the members felt that the rule “was not a source of ambiguity or confusion and was being applied properly in the courts. Moreover, the members felt that the time and expense of making and incorporating a rule amendment outweighed the need for changing the rule at this time.” 

Daniel Capra, the Reporter for the Advisory Committee on Evidence Rules, has now sent me a copy of the memorandum that he sent to the Committee in response to Professor Stonefield's work, and from it, you can see the excellent work done by the Committee, which I have previously highlighted.

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June 5, 2011 | Permalink | Comments (0) | TrackBack (0)