Creating Obstacles to Frivolous Claims

The image of a law firm stuffed with banker boxes floor-to-ceiling is shifting to the view of a computer server filled with gigabytes of information. This is increasingly a digital world and the documents, photographs, charts, memos, and emails that are the “stuff” cases are built upon now often come in digital form. As a result, great emphasis is placed upon “electronic discovery.”

What is “electronic discovery”? “Discovery” includes the exchange of information between parties in a lawsuit. “Electronic discovery” is the process of collecting, preparing, reviewing, and producing “electronically-stored information” in the context of a civil action.

What is electronically stored information (“ESI”)? The Federal Rules of Civil Procedure define ESI as information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. Because of the wide variety of computer systems currently in use, and the rapidity of technological change, courts often give an expansive definition of ESI which can include any type of information that is stored electronically, including emails, images, spreadsheets, “metadata,” PDF documents, databases, and other groupings of information.

Are printed copies of my emails sufficient? In litigation, emails are commonly produced as printouts or PDFs. However, courts may require the production of emails in their native electronic form to allow the other party to certify that the produced emails have not been altered. If the court finds that a party, anticipating litigation, intentionally deletes or destroys ESI, that party may be exposed to a claim that they have “spoliated” evidence. An opponent may even complain if a party fails to take affirmative steps to prevent information from being deleted or overridden as part of an automated process. For instance, this often occurs when a surveillance camera system “writes over” older video to create space for new video.

A party that wants to rely upon the testimony of a treating physician to support a personal injury case in federal court should be sure to consult the Federal Rules of Civil Procedure. Different rules will apply depending on the scope of the treating physician’s testimony.

Rule 26 sets two standards for expert disclosures. 26(a)(2)(C) sets a “lower standard” that typically applies to treating physicians. Under this standard, the treating physician may provide testimony beyond his personal knowledge, but he must base his opinions on “facts or data obtained or observed in the course of the sequence of events giving rise to the litigation.” LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475 (E.D.La. Nov. 13, 2013). Further, the physician may be permitted to testify regarding causation and future medical treatment if these opinions come from the doctor’s actual treatment of the party.

Under this “lower standard,” the party seeking to offer the physician’s testimony, usually the plaintiff, must timely disclose: (1) the subject matter on which the treating physician is expected to present evidence; and (2) a summary of the facts and opinions to which he is expected to testify. Importantly, production of a plaintiff’s medical records alone is not sufficient – the plaintiff must actually provide a summary of the physician’s opinions. See e.g. Williams v. State, 2015 WL 5438596, at *4 (M.D. La. Sept. 14, 2015). If the party fails to timely disclose this information, he runs a substantial risk of having his testimony excluded from trial.

Where the physician’s testimony goes beyond the medical records or his treatment of the plaintiff, a “higher standard” can apply to the physician’s testimony. Rule 26(a)(2)(B). The physician may be required to produce a complete expert report to disclose: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness’s qualifications, including a list of publications authored in the last 4 years; (5) a list of all cases the expert has been used as an expert at trial or in depositions; and (6) a statement of the compensation the witness is to be paid for his work and testimony.

Application of this “higher standard” often turns on the frequency and recency of the physician’s treatment. Courts are also more likely to apply the higher standard when the physician’s opinions are based general scientific knowledge of the plaintiff’s condition rather than his actual treatment of the plaintiff.

John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.

Louisiana law favors the settlement of disputes. With a settlement, both sides agree to avoid costly litigation and obtain a certain, negotiated result. While neither side is completely happy with the result in a typical settlement, the case is at least closed and the financial and emotional drain of litigation is ended. But the recent decision in The Marietta Trust and The Warren Trust v. J.R. Logging, Inc., Fair Hills Farm, LLC, Jerry Avants, Jr., Thomas Keaty, Jr. and XYZ Insurance Company, 2016 CA 1136 (La. App. 1 Cir. 5/11/17) shows what can happen when one of the parties change their mind. This case is important because it calls into question whether an exchange of emails is sufficient to reach a final settlement.

The Marietta Trust case involved a dispute regarding the wrongful cutting of timber and the parties seemingly came to a resolution. Via email, the case was negotiated and the terms were agreed upon. Formal settlement documents were drawn up and money was exchanged. However, when the time came to execute the final documents, one set of defendants refused to sign the paperwork. This refusal to sign came after the attorney for these defendants directly stated in an email that his "clients have agreed to the settlement." Id. at *4. In response to the refusal to sign, the other parties filed a Joint Motion to Enforce Settlement Agreement which was denied by the Trial Court.

Settlement agreements are governed by the Louisiana Civil Code art. 3071 which provides that litigation can be resolved via settlement or compromise. A settlement agreement can take two forms: 1) recitation in open court; or 2) a writing. “The purpose of the writing requirement is to serve as proof of the agreement and the acquiescence therein.” Marietta Trust, 2016 CA 11336, Id. at *3. The writing must be signed by the parties or their agents. “Until the parties sign a written document or documents evincing their consent to the terms of the proposed agreement, a party is free to change his or her mind.” Id. at *3. Prior courts have found that emails meet the "writing" requirements. See, Geer v. BP America Production Co., 2014-450 (La. App. 3 Cir. 11/5/14), 150 So. 3d 621; Dozier v. Rhodus, 2008-1813 (La. App. 1 Cir. 5/5/09), 17 So. 3d 402.

The appellate court in Marietta Trust refused to enforce the "settlement." The court found that the exchange of emails was insufficient to meet the "writing" requirement of Civil Code article 3071 because neither the emails nor any other evidence showed that the attorney possessed "the express consent necessary to accept the terms of the settlement." Id. at *3.

When is a settlement not a settlement? Maybe when it came to you through your inbox. So, if an email from the attorney is not sufficient to perfect a settlement, what can we do? The answer offered by the 1st Circuit is to either: 1. Recite in open court; or 2. Obtain a writing that includes the client’s express consent given to the attorney to settle the case (presumably for the amount in the writing).