Guided Choice: A New Approach to Mediation

As you may have seen posted here at the Dispute Resolver late last week, our Division Lunch in Chicago will be discussing Guided Choice. Speaker Paul M. Lurie from Schiff Hardin LLP in Chicago and I will be discussing this approach to mediation that has attracted major users of litigation services, AGC and AAA. This post is intended to give a brief introduction to the concepts underpinning Guided Choice dispute resolution, and it will also raise some questions to consider for the presentation.

The information below has been distilled from articles and additional resources located at the Guided Choice Dispute Resolution blog, located at this link.

The Context: The Current Lay of the Land

As most of us know, construction trials in any forum – whether in an arbitration, in a bench trial, or before a jury – are becoming rarer and rarer. More than 10 years ago, the American Bar Association Section of Litigation featured a story by the then-chair of the Section Patricia Lee Refo discussing what she called “The Vanishing Trial.” As the statistics from Professor Marc Galanter cited in the article mentioned, nearly every type of civil case has seen a marked decline in the number of cases that go to trial.

What happened to these cases? There are a few possibilities. First, with the changes in law related to being successful at the summary-judgment stage, perhaps there are more factually lacking cases that are filtered out before they reach a trial. Second, judges and court systems encourage – some would say pressure – parties to explore settlement options and mediation more frequently and earlier in the process. Third, the ever-increasing costs for trying cases has pushed parties to settle cases. Finally, there often is a business reason to settle a case before trial – risks of outcome,  business distraction and use of resources, relationship preservation and business ethics.

As construction litigators, we encounter pressures from our clients to settle cases to avoid the potential downside at trial. Yet, even when we file a lawsuit in which two parties appear to hate each other more than any two business entities should, we end up settling the case anyway. At that point, we hear complaints from our clients and the other side about how much money they spent getting to what was always the most likely resolution.

This is where Guided Choice comes into the discussion.

What Is Guided Choice?

Since a settlement is almost always the most likely scenario, Guided Choice encourages a faster, earlier resolution of a dispute that also reduces expense Because it is based on standard mediation clauses the Guided Choice  procedures for resolution are incorporated into most  construction contracts without additional language.

The main purpose of Guided Choice is to have a more active, involved mediator who is working to confidentially diagnose the basis for the dispute and suggest  an effective  settlement process before any negotiations begin. Parties should not be required to negotiate until they believe they are ready. Guided Choice helps get them ready.  The mediator is brought into the process very early in the dispute, and he or she is engaged to review the existing problems and identify ways to resolve the case before discovery rumbles onward for years.

For example, the mediator begins talking in confidence to the parties and the attorneys early in the process. This helps the mediator to identify potential areas for impasse before the parties have spent thousands of dollars on mediation statements, experts, depositions, document exchanges, and the like. By identifying these problems early, the mediator can help the parties to engage in limited information exchanges. The amount of information that enables parties to make the business decision to settle is less than the amount needed for a lawyer to prepare for trial. Guided Choice helps the parties recognize the distinction.

Even if an impasse occurs, the mediator may be involved to assist the parties to craft a limited or modified  process for the parties focusing on the impasse issues where positions need to re-evaluated. This may involve the use of experts, Dispute Review Boards and binding or non-binding opinions from arbitrators or judges.. This assistance allows the parties – again, confidentially through the mediator – to design a dispute-resolution process that is appropriate for the size, importance, and complexity of the dispute.

What Are the Questions About this Approach?

As we will discuss in Chicago, this approach raises a number of questions in the minds of litigators. Since much of our presentation in Chicago will focus on these questions, I am only going to raise them here for folks to consider before the presentation.

1.         It sounds like the mediator being involved more in the process is just another layer of expense for our clients. Why would we pay a mediator in this way in addition to all of the other costs in litigating a case?

2.         With the mediator being so involved in the process and the process including deeper investigation than most mediations, it sounds like Guided Choice will delay the process of getting a case to arbitration/trial. Is this true?

3.         Look, all this touchy-feely stuff sounds great, but I know that the other side in this dispute is entirely irrational and unreasonable. Why would I waste my time and the client’s money engaging in a mediation that we know won’t work?

4.         My clients understand mediation is important. That is why we have written step-negotiation clauses into their contracts. Isn't that enough? Shouldn't those executives meet to work things out before we get a mediator involved?

5.         This does not sound like anything new to me. Isn't this the same process we have already in mediation?

6.         Why would I keep a mediator involved after an impasse is reached? That sounds like a waste of time and money and it sounds like it could cause me to have to disclosure trial strategies.

7.         Hold on a second – this sounds interesting and all, but it feels like that my clients and I are ceding control over the negotiations to the mediator. Why should I do that?

8.         Okay, you have me convinced that this is a great idea and will save my clients money, time, and effort. But, hey, I am a businessman too and this sounds like you are taking money out of my pocket. I mean, I want the best for my clients and all, but isn’t this set up going to cost my law firm and me money?

The Forum's Searchable Knowledgebase

Information, Please!

Everyone who has attended a Forum meeting knows that the Forum and its speakers produce high quality presentations and written materials. Not everyone knows that they can access all of these presentations and papers dating back to 2002 simply by accessing the Forum’s Searchable Knowledgebase.

The Knowledgebase is more targeted than a Google search and provides well over a decade of information written by experts in the field. Whether it is research on the economic loss rule, a primer on waivers of subrogation, or an explanation of an AIA or ConsensusDocs provision, it is all in the Knowledgebase and waiting for you to use it.

Take a test run by clicking here or by going to the Forum homepage and clicking on the link there. It will change the way you research tough issues in construction law!

Division 1 Activities at the Forum Meeting in Chicago

The Fall Meeting of the Forum is only a little over two weeks away now. As always, Division 1 is ready to provide our members with both a top-notch lunch presentation and a fun night out on Thursday evening.  Here's a little information about both of those events. 

Division Lunch: Guided Choice Dispute Resolution
Despite the advent of ADR, clients continue to complain about the high cost of resolving disputes -- especially since most construction disputes eventually settle before trial or arbitration. While mediation has increased in popularity, too often it is deferred until late in the adversarial process and after the parties have incurred the expense of legal and expert fees, discovery, and other pretrial activity. 

Guided Choice is intended to help the parties use mediation and other dispute resolution tools more intelligently to achieve earlier settlements at less expense and with greater client satisfaction in the outcome. A brief introduction will be posted here on the blog early next week.

Our main speaker for our lunch is Paul M. Lurie. Mr. Lurie has served as business and legal counsel for major owners, developers, design firms, and contractors for over 40 years. He has written several articles regarding mediation and arbitration generally and about Guided Choice in particular. Several introductory articles are available at a Wordpress blog called Guided Choice Dispute Resolution System.

Division 1 Social Event: Buddy Guy's Legends Blues Club

Join Division 1 for a fun night out in Chicago! We'll meet at 7:30 PM for beverages, conversation, and casual dining at Bar Louie at 47 W. Polk Street in the Printers Row neighborhood in the landmark Dearborn Station Building.

Dearborn Station

From there, we'll head around the corner to Buddy Guy's Legends at 700 South Wabash, one of Chicago's renowned blues venues, for the 9:30 PM show featuring blues diva Nellie "Tiger" Travis. Tickets for the Blues show are $10.

To RSVP, please e-mail Rob Ruesch by October 10 to ensure a seat. Tickets for the show may also be purchased at the door subject to availability. Both spots are a short walk from the Chicago Hilton. 

Don't miss out, or you will be the one singing the blues! 

California Allows Condo Association to Sue Architects for Design Defects Required by Developer

In a decision which was issued in July, the California Supreme Court in Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (July 3, 2014, Case No. S208173) upheld a decision by the California Court of Appeal to allow the subsequent condominium owners to sue the design professionals for their condominium for a construction defect caused specifically by a materials choice approved by the developer for the project.  How did the Court reach its decision?

Factual Background

Skidmore and HKS, Inc. served as the architects of record for The Beacon residential condominiums, a property located in San Francisco. The Beacon was designed for eventual sale as condominiums, though the entire community started as rental units for two years prior to the sale. As the opinion points out, the condo association was formed and all the covenants, conditions, and restrictions were recorded before construction on the project ever began. 

Once the condominiums were sold, residents began to complain about "solar heat gain" when the sun was on their particular side of the building. The association alleged in its complaint that Skidmore and HKS approved the use of less expansive, substandard windows that failed to meet local and state building codes. These windows led to the solar heat gain. The Association also alleged that Skidmore and HKS designed a building that lacked adequate ventilation, had excessive water infiltration, inadequate fire separation, structural cracks, and other safety problems.

Procedural Background

The trial court was not impressed with the allegations against the architects and, after the plaintiff's four attempts to plead causes of action with sufficient factual and legal support, the trial court dismissed the complaint. In so doing, the trial court agreed with the architects on two key points. First, the architects argued that they did not owe a duty of care to the Association or its members under the facts as alleged. Second, the trial court placed the onus for the problems on the fact that the architect looked to and relied on the building developer's approvals for the materials used.

The Association appealed this decision to the Court of Appeal, which reversed. The Court of Appeal held that, at the motion to dismiss/demurrer stage and as a matter of law, the architects have a duty of care toward the Association even without privity. The Architects appealed.

The Supreme Court Decision

The California Supreme Court affirmed the Court of Appeal opinion. While citing to a number of products-liability and contractor-negligence cases, the Supreme Court relied heavily on the same case on which the Court of Appeal relied -- Biakanja v. Irving, 49 Cal. 2d 647 (1958). Biakanja was a notary case relating to the witnessing of a will and whether that notary had any duties to third parties in the performance of that duty. The California Supreme Court held that the answer to that question was "yes" and set forth a number of factors to determine whether a professional has a duty to third parties.

That holding in Biakanja served as the main underpinning for this case. The Supreme Court applied the factors from Biakanja as follows:

1. The architects' work was intended to benefit homeowners living in the building that the architect designed;
2. It was foreseeable that the homeowners would be part of a limited class of persons harmed by a negligent design;
3. The Association's members have been damaged because their homes are unsafe and, at times, uninhabitable;
4. Because Skidmore and HKS were the sole architects, there is a close connection between their conduct and the injury suffered;
5. Because the architects played a unique and "well-compensated role" on the project (having been paid over $5 million for their work) and because the architects knew that future homeowners would rely on their specialized expertise, "significant moral blame attaches" to the architects' conduct; and, 
6. Preventing future harm to homeowners reliant on architects' specialized skills is a sufficient policy to recognize a duty of care.

Application

This decision rests in large part on the fact that this case was at the pleading stage and not at summary judgment. However, it provides a roadmap to those seeking to impose a duty of care on an architect for a subsequent purchaser of a property. 

The California Supreme Court refused to allow the architects to avoid potential liability on the basis that the developer of the property had been advised fully regarding decisions to be made during design. Put another way, the court is saying that the architect of record on a project cannot avoid responsibility for design defects by pointing to owner choices. The architect always must design the project properly.  

Texas Supreme Court Reinforces that Subcontractors May be Liable to Property Owners

by Kat Statman and Eddy De Los Santos

On August 22, 2014, the Texas Supreme Court ruled that both the trial court and the court of appeals improperly dismissed a property owner's claim for negligence against a subcontractor for improper plumbing installation in Chapman Custom Homes, Inc. v. Dallas Plumbing Company. The Court reiterated that a subcontractor has an implied duty to perform with both care and skill and that breach of this duty may result in liability to property owners. The Court's ruling in this case makes it clear that a subcontractor may be directly liable to a property owner even when the property owner and subcontractor do not have a contractual relationship.

In Chapman, Chapman Custom Homes was hired as a general contractor to build a home in Frisco, Texas. Chapman hired Dallas Plumbing Company to install the plumbing in the new house. The plumbing was allegedly installed improperly, and leaks from the plumbing significantly damaged the structure. The property owner sued Dallas Plumbing alleging breach of contract, breach of warranty, and negligence.

The trial court granted summary judgment for Dallas Plumbing because the property owner did not have a contract with Dallas Plumbing. Additionally, the trial court found the property owner did not allege a violation of a duty owed to it by Dallas Plumbing, independent of the contract.

 

Looking to a case from 1947, the Texas Supreme Court reversed the decision of the court of appeals. The Court found that, even though Dallas Plumbing and the property owner did not have a contractual relationship, Dallas Plumbing still had a duty to perform the contract with both care and skill. Therefore, the property owner's suit alleging that Dallas Plumbing had performed work negligently was sufficient to raise an implied duty by Dallas Plumbing to perform its work with care and skill.

The Court further rejected Dallas Plumbing's argument that the property owner was barred from recovery under the economic loss rule. The economic loss rule states that a party may not recover damages for failure to perform under a contract when the only damages are losing what the party expected to receive under the terms of the contract. The Court specifically noted that, when the tort duty is independent of the contract itself, the economic loss rule will not preclude recovery. In this case, the Court found that Dallas Plumbing had an independent duty to perform with care and skill. Because this duty was independent of the contract between Dallas Plumbing and Chapman Custom Homes, the economic loss rule did not preclude recovery.

There are a number of cases that state a subcontractor cannot be sued by a property owner for defective work because the property owner does not have a contract with the subcontractor, only with the general contractor. This case makes it clear that, while a property owner may not have a contract suit against a subcontractor with whom they do not have a contract, they may have a negligence claim. Importantly, this potential liability is independent of any contract with the subcontractor.

This case also reinforces an independent legal duty that subcontractors have to property owners when they are conducting work. At all times, they must perform the work with both care and skill. Failing to perform a contract with both care and skill may result in liability to the property owner in addition to potential contract liability to the general contractor.

Finally, because this duty and potential liability is independent of the contract between the subcontractor and general contractor, a subcontractor will not be able to escape liability under the economic loss rule. If a subcontractor breaches its duty to perform with care and skill, it will be liable for all damages caused by the breach. 

For your reference, the opinion is linked here.

A Contractor’s Remedies Under the Miller Act May Not Be Conditioned on State-Licensing Requirements.

In a matter of first impression, the United States Court of Appeals for the Ninth Circuit ruled that even though a contractor violated a state law requiring it to have a contractor’s license, the contractor was still eligible to make a claim under the Miller Act on a federal construction project. This decision brings the Ninth Circuit into a general agreement with other federal appellate courts that state law cannot abridge or condition a contractor’s rights and remedies under the Miller Act.

Plaintiff Technica was a subcontractor on a federal project in California. Technica provided almost $900,000 worth of labor and materials, but received less than $300,000 in payments. As a result, Technica filed suit under the Miller Act against the general contractor and its payment-bond surety.

Section 7031(a) of California’s Business and Professions Code precludes a contractor from maintaining an action to collect compensation for its services unless the contractor was licensed during the performance of the contract. Technica did not hold a California contractor’s license. The district court granted summary judgment in favor of the general contractor and the surety, holding that the state-licensing statute barred Technica from pursuing claims for nonpayment under the Miller Act.

In considering the appeal, the Ninth Circuit examined the Miller Act’s strong policy in favor of protecting subcontractors on public projects. Sovereign immunity prevents liens from being placed on public land, so Miller Act bonds are used to provide contractors an alternative means of securing payment on federal construction projects. Moreover, the Miller Act is considered highly remedial in nature and is liberally construed to protect entities that labor and/or provide material to public projects. The remedy provided by the Miller Act was federal in nature and the law that would prevent the unlicensed contractor from recovering was a state law. In addition, the court felt that enforcement of state-licensing requirements against Miller Act claims would “wreak havoc” on the uniform application of federal law, particularly in federal projects spanning multiple states.

The Ninth Circuit focused on the distinction between federal and state law as well as federal preemption in reversing the decision of the district court. It found that the state law could not abridge an entity’s right to pursue a Miller Act claim. The court conceded that while state contract law was sometimes used in evaluating a Miller Act claim, state contract law was not used to affect the rights established by the Miller Act.

This decision was one of first impression. It likely has broad applicability beyond the Ninth Circuit, as many states have contractor-licensing requirements.

Technica LLC ex. rel. v. Carolina Cas. Ins. Co., No. 12-56539, 2014 WL 1674108 (9th Cir. Apr. 29, 2014).

4TH CIRCUIT: DAVIS BACON ACT DOES NOT GIVE RISE TO PRIVATE RIGHT OF ACTION

The 4th Circuit Court of Appeals recently addressed whether the Davis Bacon Act, 40 U.S.C.A. §§ 3141 et seq., bestows a private right of action. In Quezada, et al. v. Clark Construction Group, LLC, et al., a Maryland federal district court granted a defendant contractor's motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), finding the Davis Bacon Act does not give rise to a private right of action. The 4th Circuit affirmed, citing cases from various other jurisdictions, including the 2nd and 5th Circuits, which have concluded that neither the language, history nor structure of the Act support the implication of a private right of action. It remains to be seen whether this issue will make its way to the U.S. Supreme Court. However, the reasoning of the various Courts of Appeal appears sound.

Predictive coding and litigating force majeure clauses in construction contracts

By Drew Lewis, Esq., ediscovery counsel at Recommind

Construction lawyers understand the importance of a comprehensive force majeure clause.  But in an increasingly tumultuous world where extraordinary events are difficult to predict, where can litigators find the evidence to support (or refute) claims of impossibility or impracticability?  Increasingly, the answer is in their client’s own data.  And with data volumes increasing on a daily basis lawyers are turning more frequently to predictive coding as their tool of choice.

Predictive coding, at the most basic level, is a machine learning system where exemplar documents are provided and the system retrieves other documents that are conceptually similar to the exemplar(s).  The system is language agnostic so it is not simply returning other documents that use the same words; rather it is returning documents regardless of how dissimilar they might appear based on key word analysis alone.  The use of predictive coding was first approved by a court in Da Silva Moore v. Publicas Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012); since that time it has become the subject of comment (and controversy) in the eDiscovery community. 

The ultimate benefit of predictive coding, and other advanced machine learning techniques, is not simply the decrease in labor hours (and subsequent cost to your client).  Instead, the ultimate benefit is to extrapolate the lawyer’s knowledge and insight to data volumes once thought unimaginable.  This extrapolation results in the ability to rapidly find what actually matters in the case, and leverage that information in a strategic manner.

In the construction context it can be vitally important for a party trying to prove (and even disprove) a claim of impossibility of performance by providing deep insight into the digital conversations of key players in the case.  In several instances, the party claiming unforeseen circumstances made performance impossible has produced documents – without the aid of this technology – only to have those documents examined using advanced technologies such as predictive coding, and having their entire theory undone by the data.  Predictive coding can isolate the key documents that showed what the performing party knew at the time of contract formation, and more importantly what they did to explore alternative performance.  The data often stands in stark contrast to the claims made in the pleadings, and it becomes clear what the performing party really knew (and when they knew it). 

Predictive coding, as part of a system of search techniques provides deep insight into what actually happened once performance became impracticable, but does so in a fraction of the time generally associated with the review process.  Parties on either side of the line in construction cases are well advised to discuss the use of this technology with their clients.

Delving Into Mock Trials and Jury Psychology

By: Galina Davidoff Director of Jury Consulting at Magna Legal Services

 Published On: Thursday, July 17, 2014 at www.enewsletters.constructionexec.com

There is hardly an experienced trial attorney who hasn’t lost what seemed like a very strong case. In fact, 68 percent of attorneys’ predictions of legal outcomes are wrong, according to a study.

It is hard to predict legal outcomes because of the great multiplicity of factors involved, especially in jury trials. While everybody knows that jurors’ pre-existing opinions matter, taking them all into account in a particular case is a challenging task. Consider the following two cases and the reactions of surrogate jurors who participated in the mock trials.

 

  

 

1.      In an upper-middle class, conservative venue, jurors discuss alleged violations of federal regulations by an owner of a construction project. The allegations are part of the defense put forward by the construction company, which in turn is accused of poor workmanship. Initially, all seems well for the construction company, but as the discussion progresses, the jurors are increasingly putting themselves in the shoes of the owner, finding more excuses for why he evaded, ignored and broke government regulations. The end result: Regulations are found to be broken, but the violations are deemed irrelevant and the construction company is viewed as responsible for all the alleged defects.

2.      A government agency claims it has no obligation to follow its contract because it is not the contract it intended to sign. The contract involves insurance coverage for multiple construction projects. The insurance company argues that the contract was negotiated by experienced insurance brokers on both sides and clearly says what it says. The case is in a multicultural liberal, mixed-income venue. In deliberations, jurors show disdain for the government agency and its wasteful ways, and eventually find against the insurance company, which they see as being sneaky and exploitative of government inefficiency.

If the venues were switched, the results likely would have been very different. The strategies were good; they just did not match the interests and the mood of the prospective jurors. As deliberations in these mock trials demonstrated, real estate is not only always local–it is also political. Jurors try to stay away from political arguments per se, but their conservative or liberal attitudes are clearly identifiable. This by itself may not be news, but these days peoples’ attitudes can shift and become more polarized quicker than expected.

Litigants and attorneys’ perceptions of the political climate and their own political orientations also play a role in their assessment of the strength of their case. Lawyers and business leaders are as human as jurors and as such cannot fully isolate their personal views. At this time of political polarization, even experienced trial attorneys often look across the divide with a sense of incomprehension, wondering how people can believe what they believe and where do they get their facts. Evaluating cases in such climate is even more challenging.

Because construction cases touch on many issues and opinions, trial lawyers have space to be creative and find juror predispositions that help their case. Neither of the aforementioned cases was hopeless. Different trial strategies produce different results. For example, in the first case, surrogate jurors taught the attorneys that stressing violations of government regulations was not a winning strategy. But they did learn how to focus jurors’ attention on the owner’s complete control over the project and the bad choices for which he now must accept responsibility. Now, when the case goes to trial, the construction company need not lose credibility by talking about government regulations. The insurance company learned that jurors were willing to let an ignorant government agency off the hook. Based on the jurors’ feedback, the company determined how to demonstrate the government agency’s full knowledge of the contract terms and thus its full responsibility.

It is not surprising that attorneys were able to learn so much from the small groups of non-experts. Studies show that groups and even crowds consistently beat experts in evaluating complex problems, such as predicting trial outcomes (see Predicting Civil Jury Verdicts. How Attorneys Use (and Misuse) of Second Opinion). According to the studies, the more experienced an attorney is, the less likely he or she is to take into account opinions of other equally experienced attorneys. The reason groups do better than experts is that people’s mistakes tend to cancel each other out, while experts tend to be entrenched and dismissive of contrary views. Thus, if the only people who evaluate a case are all well-educated and personally invested professionals, it limits the accuracy of the evaluation. For more information on the subject, read James Surowiecki’s The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations.

Time and again, jury research shows that outcomes can be changed with the right strategy and made much worse with the wrong one. Both academic and applied research finds that the best evaluations of complex problems such as civil jury trials are based on a variety of perspectives that come from groups and individuals with varied life experiences. Groups of disinterested observers appear to offer greater wisdom than experts alone in evaluating risks associated with complex events. Perhaps that is the reason jury trials have such an important place in the justice system in the first place.

Galina Davidoff, Ph.D., Director of Jury Consulting at Magna Legal Services, is one of the leading experts in development of winning trial strategies for complex commercial and criminal matters. Dr. Davidoff has consulted on a number of high profile cases and hundreds of cases across the nation. As a litigation and trial consultant, she has assisted her clients in the development of winning trial strategies, jury selection and voir dire, implementation of shadow juries, witness communication training, ordering evidence, opening/closing statements, the development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques.

She can be reached at 866.624.6221 or GDavidoff@MagnaLS.com.

Reprinted with permission from Construction Executive, July 2014, a publication of Associated Builders and Contractors Services Corp. Copyright 2014. All rights reserved.

Tweaking the Federal Rules of Civil Procedure

The federal Judicial Conference Advisory Committee on the Rules of Civil Procedure works continually to update and improve the Federal Rules of Civil Procedure. This effort regularly results in changes to the way each of us handles cases in any forum, since state rules often mirror the federal rules and since arbitral organizations often apply similar guidelines to procedure as set forth in the Federal Rules.

Pending rules amendments can be found at this website. The current proposed rule change getting the most attention are those changes to the rules regarding discovery. A redline version of the proposed changes is located here.  This post will outline briefly the changes proposed to Rules 26, 34, and 37.

Rule 26: Proportionality and Early Requests for the Production of Documents (RFPs)
Current Rule 26(b)(1) grants litigants a broad scope in their efforts to obtain discovery, limited only by Rule 26(b)(2)(C), which grants parties the right to seek court intervention to prevent discovery when: 

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

The proposed revision moves this "proportionality" language to Rule 26(b)(1) and adds one important consideration: "the parties' relative access to relevant information . . . ." This is aimed at situations -- especially in employment matters -- when one party (the employer) controls most of the information relevant to the case.

A second change that is more substantive in nature relates to when requests for the production of documents may be served. The current rule precludes serving any discovery until a Rule 26(f) conference has occurred. The new Rule 26(d)(2) is to allow parties to deliver requests under Rule 34 on the opposing party so long as 21 days since service of the complaint has passed and the parties have not held a Rule 26(f) conference.  If this occurs, then the RFPs are considered served effective as of the date of the first Rule 26(f) conference.  The Advisory Committee notes state that this change "is designed to facilitate focused discussion during the Rule 26(f) conference.

Rule 34(b): Responding to Requests to Produce
Several important changes in responding to requests for production are included in these proposed rules.  First, of course, the Rule is amended to provide consistency for the dates for responding to the "early" RFPs.  That change is set forth in Rule 34(b)(2).

The rest of the changes are far more substantive and set forth what is now required of parties responding to RFPs. When responding to the request, parties are now allowed to respond by saying that they will produce copies of documents or of electronically stored information rather than permitting inspection.  Production then must be completed no later than the time allowed for inspection set forth in the request or within another reasonable time specified in the response.  It would appear that this change is ministerial in many respects, in that parties have tended to take this route as a practical matter. 

The most important change in Rule 34(b) relates to the objections parties interpose to discovery requests.  Many judges, lawyers, and litigants complain about "boilerplate" or general objections interposed as applying to all discovery requests regardless of whether the general objection actually applies.  Under the proposed new rule, parties would be required to provide specificity to their grounds for objections and, further, whether any responsive materials are being withheld on the basis of the objection. It does not require a log of what was withheld, however, as the Committee notes state.

The Committee notes provide illumination on this last issue. For example, many times parties will object to a document request for being "overly broad." The new rule contemplates that the party interposing that objection must state the scope for the request that is not overly broad and to produce documents accordingly. The example provided is that a party will produce documents that fall within a given time period or that the search for responsive documents is limited to specified sources.

Rule 37(e): Spoliation of Electronically Stored Information
With computers and other electronic devices nearly ubiquitous today, rules to deal with ESI were required. The Committee took its best stab initially in 2006 at trying to find a safe harbor to allow corporations to run their computer systems honestly and in a good faith manner so as to avoid having to keep every byte of electronic information. That "safe harbor" provision did not have any standards provided, and it led to numerous court decisions which refined what was and was not spoliation.

The amended rule is now in at least its second iteration. The Committee offered a proposal in 2013 that tried to provide factors to consider in sanctioning parties. Those factors were rejected after public comment from both the plaintiffs' and defense bar against the proposal. The current proposal, however, made it past the public comment phase.  

As the Committee notes provide, this new rule applies "only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it." Basically, the new rule focuses on factors that courts have used already and first determining whether the loss of information was accidental or intentional. 

If the loss of information was accidental, a finding of prejudice is required and, then, measures "no greater than necessary to cure the prejudice" are authorized.  If the loss of information was intentional and occurred "with the intent to deprive another party of the information's use in the litigation," then the Court may either presume the evidence would have been unfavorable to the destroying party, instruct the jury that is either may or must presume that the information would have been unfavorable to the destroying party, or, dismiss the action or enter default judgment.  

Conclusion
Discovery is the most costly, time-consuming, and occasionally frustrating part of litigation. As the Federal Rules of Civil Procedure change, attorney behavior will follow. Assuming these changes are adopted, it will be interesting to see how attorneys respond.

Certificates of Merit are Not Required to Assert Third-Party or Cross-Claims Against a Design Professional in Texas.

In certain states, a plaintiff seeking to file a lawsuit against a design professional (such as an architect or engineer) based on the provision of professional services must include a “certificate of merit” with the initial pleading. In Texas, this certificate must be a sworn affidavit from a professional with the same license as the defendant that is knowledgeable in the defendant’s area of practice. Tex. Civ. Prac. & Rem. Code § 150.002. It must specifically describe the allegedly negligent acts of the defendant, including the factual basis for each claim. Id. Failure to file the certificate of merit with the initial pleading will result in dismissal, possibly with prejudice. Id.

As a practical matter, this requirement has created tactical problems for general contractors and other construction companies whose scope of work includes responsibility for design. If an owner sues a general contractor for damages arising from alleged design problems, the general contractor must evaluate whether to bring in its design professional as a third-party defendant to bear responsibility for the claims. If the certificate-of-merit requirement applies to such claims, then the general contractor is left with the dilemma of deciding whether to provide sworn proof of the design problems (potentially admitting the general contractor’s liability to the owner) or refraining from joining the design professional (and therefore giving up the benefits of seeking indemnity while the owner’s lawsuit is pending).

In Texas, this issue was recently resolved. In Jaster v. Comet II Construction, the Texas Supreme Court held, in a 5-4 plurality opinion, that defendants and third-party defendants who filed third-party claims or cross-claims against design professionals are not required to file certificates of merit accompanying those claims.

The Court’s decision rested on an analysis of the language of Chapter 150 which requires “the plaintiff” in “any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional” to file a certificate of merit (an affidavit signed by a design professional specifically stating what was done incorrectly) with the petition. The Court drew a distinction between “plaintiff” and “third-party plaintiff”/ “cross-claimant” by finding that a plaintiff initiates the lawsuit whereas a “third party-plaintiff”/ “cross-claimant” does not. The Court also found support for that distinction when it interpreted “action” to mean the filing of a lawsuit as opposed to “causes of action” which are the individual claims that make up a lawsuit. The action would be filed brought by the plaintiff as well as causes of action whereas only causes of action would be brought by third-party plaintiffs/cross-claimants.

The Court explicitly did not render an opinion as to whether, in multi-plaintiff suits, each plaintiff would be required to submit a certificate of merit, as that issue was not before the Court.

Notably, there is no majority opinion in this case, which means that the case technically cannot be used as binding precedent. However, the similarity of the concurrence written by Justice Willet to the plurality opinion written by Justice Boyd makes it likely that lower courts can and will consider the majority opinion binding. The concurrence takes the same textual approach as the plurality but instead of focusing on the distinction between “plaintiff” and “third-party plaintiff”/ “cross claimant” the plurality honed in on the phrasing of the statute that describe “the plaintiff” and “the complaint.” The concurrence found that the modifier “the” means a singular plaintiff, thus excluding later claimants, and the initial pleading, not subsequent causes of action added to the complaint. Thus, coming to the same conclusion as the plurality, that the first plaintiff filing the original petition must include a certificate of merit, but subsequent third-party plaintiffs and cross-claimants need not.

Jaster v. Comet II Const., Inc., No. 12-0804 (Tex. July 3, 2014).

Thanks to Nick Brooks at Griffith Davison & Shurtleff, P.C. for assistance with preparing this post.

Good Articles on E-Mail Fundamentals for Construction Professionals

E-mail forms a significant portion of the documentation available for a construction project, particularly when resolving a dispute. Most, if not all, of my cases involving construction issues like the scope-of-work, delays, and defects have relied heavily on the e-mail communications sent before, during, and after the dispute arose.

Gene Heady with Smith Currie & Hancock LLP posted a good article making some helpful recommendations for the use of e-mail by construction professionals during a construction project, including:

1. Avoid using foul language, sarcasm or off-color humor.
2. Keep your e-mails simple.
3. Give facts not opinions.
4. Avoid being self-critical in internal e-mail communications.
5. When upset or angry, rigorously adhere to the 24-hour rule.
6. Use the Subject line to quickly and accurately convey the substance of the e-mail.
7. Only discuss one project in each e-mail.
8. Follow-up important e-mails with letters.
9. Assume deletion of e-mail will not prevent its later recovery.
10. Maintain privileged nature of attorney-client communications.

The entire article is well worth a read, along with a recent companion article from Lee Schumacher at ARCADIS which makes some additional suggestions.

Thanks to ARCADIS for bringing this to our attention through their Construction Claims Blog.

Pennsylvania Supreme Court Upholds and Favors Bright Line Rule Protecting Communications Between Attorneys and Testifying Experts

On April 29, 2014, the Supreme Court of Pennsylvania issued its opinion in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 91 A.3d 680 (Pa. 2014), and addressed the issue of the scope of discovery and attorney work product under Pennsylvania's rules of civil procedure, particularly the discovery of communications between attorneys and testifying expert witnesses.  The court adopted a bright line rule that communications between attorneys and testifying experts are protected from disclosure.

The case was a personal injury action in which the plaintiff suffered serious injuries when a chair in which he was sitting in a hospital cafeteria collapsed. In response to defendants' subpoena requests, the treating physician withheld records that the physician contended were not created for treatment purposes. When the defendants sought to compel production, the plaintiffs designated the physician as a testifying expert and claimed that all communications between the physician and counsel were privileged. The trial court, after an in camera review, ordered the communications produced. 

The plaintiffs appealed to the Superior Court, where a three judge panel first upheld the trial court's decision, concluding that the defendants were entitled to discover whether the expert's conclusions were his own or guided by counsel. But on the plaintiffs' petition, an en banc panel of the Superior Court concluded that the communications at issue were not subject to discovery and that the defendants had not met their burden of showing "cause" as to why the records should be produced, as required by Rule 4003.5(a)(2). And although the court noted that an in camera review might be necessary to determine which aspects of the communications constituted protected material, the court broadly ruled that the communications were protected from disclosure as attorney work product under Rule 4003.3. Judge Bowes of the Superior Court, in a dissenting and concurring opinion, parted ways with the majority regarding a blanket protection for correspondence between counsel and an expert witness. 

The defendants requested that the Pennsylvania Supreme Court review whether the Superior Court's interpretation of Rule 4003.3 improperly provided absolute protection to all communications between a party's counsel and their trial expert.   The defendants' key issue with the Superior Court's blanket ruling was the issue noted by the first panel of the Superior Court: being able to determine whether an expert's opinions and conclusions were the expert's independent conclusions or whether the opinions and conclusions had been guided by counsel.  

After review of the applicable rules, their history, and purpose, the court acknowledged that while some communications between counsel and experts might solely contain the attorney's mental impressions and legal theories, most would have substantial overlap and intermingling of work product and facts that trigger the attorney's work product. The court further stated that attempting to extricate the work product from the related facts would add unnecessary delay and difficulty to the discovery process, and redaction following in camera review would result in needless litigation, adding expense to the parties and tying up the trial courts. The court found it preferable to err on the side or protecting the attorney work product, given the tools such as cross-examination at trial and interrogatories that opponents could use to find out further information, where appropriate. Accordingly, the court affirmed the Superior Court's bright-line rule and holding.  

While this decision is, of course, jurisdiction-specific and is based on the court's analysis of Pennsylvania's rules of procedure, it will be interesting to see if more courts take - and more attorneys urge - a similar bright-line approach to communications between attorneys and experts and add a prong to the analysis regarding the cost, time, and effort related to in camera review of communications parties believe are privileged and protected.

Another Victory for Insurers of General Contractors

In a prior blog, we discussed what could be considered a trend (or at least a concept worth further monitoring) - courts finding insurance coverage for construction defect claims under standard Commercial General Liability (CGL) policies, even though the defects arguably did not arise from an "occurrence," typically defined in CGL policies as an "accident." In J-McDaniel Construction Co., Inc. v. Mid-Continent Casualty Co., the Eighth Circuit affirmed a CGL insurer's denial of coverage for claims related to faulty workmanship. In the case, the contractor argued that the insurer had a duty to defend because "the legal landscape is shifting and [] states are trending toward including faulty workmanship within CGL policy coverage." The Court of Appeals didn't bite. The opinion can be found at http://media.ca8.uscourts.gov/opndir/14/08/132673P.pdf.

Steering Committee Meeting Minutes (7.14.2014)

DIVISION ONE STEERING COMMITTEE

ABA FORUM ON THE CONSTRUCTION INDUSTRY

Minutes from July 14, 2014 Meeting

 

1.      Steering Committee Roster

Present: Nick Holmes, Tom Dunn, Kelsey Funes, Scott Griffith and Tony Lehman.

Others Participating: Joe Imperiale, Rob Ruesch and Nancy Holtz. 

2.      Approval of Minutes from June Meeting

The minutes from the June meeting were approved.

3.      Chair’s Report

Nick gave a short report on the Forum Planning Retreat which was held on June 26-28, 2014.

4.      “Concepts List” for Division 1 Programs and/or Publications

The first draft of the Concepts List was discussed and additional suggestions were made (copy attached).  Please send Nick any additional ideas you have for possible programs.

5.      Reports from Division 1 Standing Committees

Tony reported that a push is on to update and improve the division web pages as they are one of the primary ways we can introduce ourselves to potential members and to keep our current members advised on what we are doing.  This will be a topic for discussion at the August meeting.

 The Forum is also investigating the use of Prezi to replace PowerPoint.

 Tom reported on the new member directory that is available in PDF format.  This will be updated regularly; it is important for everyone to log on to the ABA web site and review their contact information to make sure it is accurate and up to date.

6.      Planning for the Fall Meeting (October 16 and 17, 2014.  Chicago)

Nick confirmed that the Division 1 Planning Retreat will be held from 2:00 PM to 5:00 PM on Wednesday, October 15, 2014 in conjunction with the Forum’s Fall Meeting in Chicago.  All members of Division 1 are invited to attend and participate.

Tony reported that the Division Program for Chicago is still on track.  He will make sure sufficient time is left for attendees to network after the program.

Rob Ruesch led a discussion on the Division 1 social event which will be held on Thursday evening.  A number of divisions are planning to hold a joint sit down dinner.  The consensus is that we would prefer to have a separate event that is not a sit down dinner so we have more flexibility in socializing and networking.  Rob will report back on possible venues.

7.      Construction Litigation Checklists Project

The steering committee discussed Jason Rodgers-da Cruz’s proposal regarding construction litigation checklists.  Jason was unable to attend this month’s call due to a scheduling conflict.  Nick will touch base with Jason and the steering committee will discuss further at a future meeting.

8.      Next Steering Committee Meeting:

Our next meeting will be held on Monday, August 18, 2014 at 3:00 PM EDT

 

Respectfully submitted,

 

                                                                                    Nick Holmes,

 

US District Court Sanctions Attorney for Excessive "Form" Objections and Coaching during Depositions

Cooperation in deposition practice is a laudable goal, but rarely fully realized.  Depositions get derailed through objections, banter between counsel, and excessive interruptions/breaks. (For a hilarious illustration on deposition practice, click here.)  Because there is no judge presiding over a deposition, and we know most judges do not want parties to submit "petty" discovery disputes that do not directly address material facts of the case, the disruptive conduct continues without check.  It is just "how it is done" even though most everyone wishes it could be different. 

Absolutely read The Security National Bank of Sioux City, Iowa vs. Abbott Laboratories, No. C11-4017-MWB (July 28, 2014)("Abbott Laboratories").  It is a memorandum of decision ordering, as a sanction, an attorney to produce a video for his law firm explaining the inappropriate use of deposition objections, coaching, and interruptions. 

The Court issued the sanctions sua sponte against defense counsel after he obtained a successful defense verdict in a product liability trial.  Sanctions were given based upon the attorney's conduct in two pre-trial depositions.  The trial judge (U.S. District Court Judge Mark W. Bennett, Northern District of Iowa) had reviewed the depositions because certain portions sought to be admitted during the trial. 

While I am pretty sure that most of us have seen far worse deposition conduct than what is described in Abbott Laboratories, Judge Bennett's thoughtful and thorough memorandum of decision is worth a read to remind us how depositions should occur under the rules of civil procedure. 

Here are the major quotes and takeaways from Abbott Laboratories:

• The Problem.  "Discovery is mired in obstructionism. . . . Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of the 'just, speedy, and inexpensive determination of every action and proceeding.'" Abbott Laboratories, p. 2.

• Court's Role. "But the litigators and trial lawyers do not deserve all the blame for the obstructionist discovery conduct because judges so often ignore this conduct, and by doing so we reinforce - even incentivize  - obstructionist tactics. . . . Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators' conditional reflexes will persist.  The point of court-imposed sanctions is to stop reinforcing winning through obstruction." Abbott Laboratories, pp. 3-4.

 

• "Rule 30(d)(2) provides: 'The court may impose an appropriate sanction - including the reasonable expenses and attorney's fees incurred by any party - on a person who impedes, delays, or frustrates the fair examination of the deponent.'" Abbott Laboratories, p. 7, emphasis added.

 

• Form Objections. "Lawyers are required, not just permitted, to state the basis for their objections." Merely saying, "object, form" or "I object to the form of the question" is insufficient in Judge Bennett's view because it does not communicate the basis of the objection to provide the examining attorney with an opportunity to cure a valid objection.  The Court did note that other jurisdictions prefer the limited "form" objection. See Abbott Laboratories, pp. 16-17 (E.D. La., S.D.N.Y., E.D. Tex., D. Minn.) Abbott Laboratories, p. 15.

 

• Witness Coaching - "if you know". "When a lawyer tells a witness to answer "if you know," it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question.  For this reason, '[i]nstructions to a witness that they may answer a question "if they know" or "if they understand the question" are raw, unmitigated coaching, and are never appropriate." Abbott Laboratories, p. 25.

 

• Witness Coaching - "speculation" "vague and ambiguous."  "Counsel's endless 'vague' and 'form' objections . . . frustrated the free flow of the depositions Counsel defended.  They frequently induced witnesses to request clarification to otherwise unambiguous questions."  The Court's view is that these objections are only proper where a question is "truly so vague and ambiguous that the defending lawyer cannot possibly discern its subject matter." Abbott Laboratories, pp. 18-23.

 

• Witness Coaching - "Intermediary"  The sanctioned attorney explained that some of his interruptions were made in good faith to help the plaintiff's attorney. The Court rejected this interpretation of the attorney's objections noting that "[i]t is not for the defending lawyer to decide whether the examiner is on the 'wrong track,' nor is it the defending lawyer's prerogative to 'steer [the examiner] to the correct ground.'" Abbott Laboratories, pp. 26-30.

 

• Excessive Interruptions. The sanctioned attorney's name appeared 381 times in a deposition transcript -- 3 times per page. Abbott Laboratories, pp. 30.

 

• The Sanction. "Counsel must write and produce a training video in which Counsel, or another partner in Counsel's firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified "form" objections, witness coaching, and excessive interruptions." Abbott Laboratories, pp. 31-33.

Share your thoughts and comments about this decision. Do you think it was too much?  Should the Court have issued its sanction in private?   

What is the practice in your jurisdiction regarding deposition objections? The custom in California where I began my practice was to state the basis of the objection as Judge Bennett now requires in the Northern District of Iowa. Many practitioners in Massachusetts and Rhode Island simply state "objection."  What is the better approach?   

Will you bring a copy of this decision with you to your next deposition?  I might. 

Post written by Tom Dunn, member of Division 1 Steering Committee and Co-Editor of The Dispute Resolver Blog.  Tom is a partner at Pierce Atwood LLP and he practices construction law and business dispute resolution in Massachusetts and Rhode Island.