“Oceans of Motions” Including Some Questions Clients Should Ask

With full blown trials being the exception rather than the rule, most of our time in court centers on routine status con­ferences and motions. The breadth of potential motions – running from minor discovery disputes to full blown motions for summary judgment – can be confusing. This column sets out some suggestions on making the right motion deci­sion in a given case. We posit that counsel and client must make motions with an overall strategy in mind. Too often, it seems motions are made reflexively rather than strategically. At best, this may simply be a waste of time or money, and at worst, it may actually weaken your own case.

So what is a motion? In its most accurate [and useless] definition, “a motion is an application to a court for an order.” In more useful terms, an application is a “request” to the court and an order is the court’s answer, simply telling a party in litigation what to do. In its ultimate form, as in a defendant’s summary judgment motion, the order to the plaintiff may be to “go away.” A happy day for the defendant.

Types of Motions. Broadly broken down, motions fall into two categories, “procedural” and “substantive,” a/k/a “dispositive.” A procedural motion may be a motion to compel the production of a document or, conversely, a “protective order” telling a party it can withhold a document or information from production. Other procedural mo­tions include motions to amend the pleadings, motions to preclude evidence or testimony, motions to re-argue, and mo­tions for leave to appeal, to name just a few. Despite the “procedural” tag attached to these motions, they can have quite a dramatic impact on the outcome of a case. Imagine, for example, an order precluding a party’s “star” expert from testifying at trial. This could collapse the whole case, procedural or not.

Turning to our “dispositive” motions, there are two general types; the motion to dismiss and the motion for summary judgment. The motion to dismiss typically comes early in the case and can most simply be considered the “even if” motion. A defendant moves to dismiss a complaint when, even if everything in the complaint is true, the claim is none­theless fatally defective. A simple example of this would be a case barred by the statute of limitations and, more eso­terically, a claim precluded by the “economic loss doctrine.” In the former, the moving party argues that the case has simply been brought too late – “even if” all the allegations of fault are true. In the latter example, the defendant argues that the tort recovery sought is simply unavailable for the economic damages claimed. Note that a dispositive motion need not resolve an entire claim. Using the statute of limitations example, it is possible that a negligence claim might be too late while a contract claim (typically having a longer limitations period) might survive the motion.

A motion for summary judgment, by contrast, often turns on reams of evidence, upon the examination of which the court is asked to find that there is no question of fact left for the jury and that one party is entitled to judgment “as a matter of law.” In complex aviation cases, this can indeed be the “million dollar motion” because of both its potential impact on the case and its cost! Again, summary judgment may not dispose of the entire case, and partial summary judgment may be granted as to specific claims made and damages sought.

The Big Picture. Before signing off on any motion, lawyer and client should have a clear picture of the importance of this motion in the overall strategy of the case. Equally important, the client should be satisfied that his lawyer has taken all steps to resolve the dispute short of court intervention. As with so much else in life, you must choose your battles. Let’s take a discovery dispute. Discovery disputes very often lead to motion practice and are often preceded by little more than some pro forma threatening letters back and forth between the lawyers. Has counsel picked up the phone and really tried to work this out? If you are refusing to comply with a discovery request that is technically improper, have you considered the downside, if any, to simply responding? Imagine refusing to respond to a document request and fighting it out in court when you could have truthfully responded that you have no responsive documents! Laugh though you may, this does happen. Whenever a discovery or similar motion is contemplated, counsel and client need to consider the costs, potential benefits, and whether they have made all reasonable efforts to resolve the dispute. Very often, a party objecting to a particular discovery request has a very specific basis in mind, a phone call and some adjust­ments to the scope of the request will often resolve this dispute to the satisfaction of both sides.

As to the dispositive motions, the same rules apply, but they can get more complicated. For example, a viable sum­mary judgment motion may open a window to a good settlement. By contrast, a pro forma and doomed-to-fail motion will ultimately cost you more in both settlement and defense dollars. It may also annoy the judge – seldom a good thing. When counsel discusses a potential motion with a client, the client should be wary of any answer that rings of “because that’s what we always do.” The motion has to make holistic sense. Sadly, it seems still that all too many judges are inclined to look for any reason to deny motions for summary judgment lest they deny even the most unde­serving of cases their “day in court.” These practical realities must be factored into any motion decision. In New York, if you are defending a personal injury case, expect to lose all but the strongest of summary judgment motions and even then, don’t be too sure.

Lastly, ask yourself what is the “upside?” If a motion to dismiss will simply be countered by a cured and amended complaint, what has been gained? If a motion for reconsideration simply allows a court to draft a more bullet and ap­peal-proof opinion, have you benefited? While results are never guaranteed, all steps in litigation, motions among them, should be choreographed to achieve a desired outcome not just for the single motion but the entire case. Before any motions are filed, both lawyer and counsel should ask, “why,” “why not,” and whole lot of “what ifs.”

DVT not “Accident” Under Warsaw Convent

Twardowski v. American Airlines, 535 F.3d 952 (9th Cir.2008)

The U.S. Court of Appeals for the Ninth Circuit, on a consolidated appeal, affirmed the decisions of multiple lower courts holding that airlines do not have a duty to warn airline passengers of the possibility of developing Deep Vein Thrombosis (DVT) on international flights. Between 2001 and 2004, the plaintiffs had all flown internationally on vari­ous air carriers and all claimed they had developed DVT as a result of the confined conditions on their flights.  In five instances, the DVT was alleged to have been fatal.  DVT is a condition that occurs when a blood clot forms in a deep vein, usually in the pelvic or leg area and it can cause severe pain.  It can become life threatening if the blood clot breaks free and lodges in a vital organ, such as the lungs.1

The United States is a party to the Warsaw Convention, (as modified by the Montreal Convention), also known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air.  Article 17 of the con­vention specially governs injury on international flights.  It states that “[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of em­barking or disembarking.”  The plaintiffs argued that the airline’s failure to effectively warn of DVT risks during their international flights constituted an accident for purposes of liability under Article 17 of the Warsaw Convention.

In addition to representing passenger safety as a priority, and publishing information regarding DVT on their websites and in in-flight magazines, plaintiffs argued that the airlines should also have enacted the more proactive preventative methods recommended by the International Air Transport Association, the British House of Lords, and airline medical officers.2

In forming its opinion, the court looked to Air France v. Saks, where it reasoned that an “accident” is an “unexpected or unusual event or happening that is external to the passenger.”  In Saks, the court held that when the injury indisputably occurs due to the passenger’s own internal reaction to the “usual, normal, and expected operation of the aircraft,” the injury is not caused by an “accident” and thus, damages are not recoverable under Article 17.3  The Court acknowledged that inaction by the airline can satisfy the definition of an accident under the Convention, such as when, for example, a specific request for medical assistance was ignored or denied by the airline or its staff.4  But nothing in the plaintiffs’ case met this criteria.  Since there can be no liability for failure to warn, there can be no liability either for the failure to warn effectively.5

1 Vascular Disease Foundation, http://www.vdf.org/diseaseinfo/dvt/index.php

2 Twardowski at 959.

3 Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985).

4 Olympic Airways v. Husain, 540 U.S. 644, 655, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004).

5 Caman v. Continental Airlines, Inc., 455 F.3d 1087, 1092 (9th Cir.2006). 

“Designer” Can be Liable in Products Liability

Slate et al. v. United Technology Corp. et al., No. B197395, 2008 WL 2780877 (Cal.Ct.App., 2d Dist. July 18, 2008)

A California appellate court has held that questions of fact as to whether “shot peening” caused or contributed to an ac­cident precluded granting Sikorsky’s GARA motion for a 41-year-old S-58 helicopter. More significantly, the court held that Sikorsky’s directive that the replacement input bevel pinion gear (IBP) be shot peened was potentially a re-design, starting GARA’a eighteen year statute of repose running anew. Sikorsky had not itself manufactured the IBP.

When an S-58ET helicopter originally built and delivered to the Navy in 1962 crashed in 2003, a post-accident inspec­tion by Sikorsky revealed that a possible cause of the crash may have been the fracturing of a large section of the IBP, from the helicopter’s intermediate gear box. The pilot, plaintiff Slate, sued Sikorsky Aircraft Co. for negligence, strict products liability and breach of warranty.

Sikorsky argued in a motion for summary judgment that the pilot’s claims against it should be completely barred by GARA’s eighteen-year statute of repose. It was undisputed that Sikorsky had manufactured and delivered the helicopter to its first purchaser 41 years earlier and that although the IBP at issue had only been replaced 13 years earlier, it had not been manufactured by Sikorsky. The trial court granted Sikorsky summary judgment.

However, on July 18, 2008, the California Court of Appeals for the Second District, primarily focusing on the IBP gear­box replacement, reversed the lower court’s holding for two main reasons. First, the court found that even if Sikorsky was not liable as the “manufacturer” of the replacement part, it could still be found liable as the “designer.” The court based its finding on the fact that in 1984, Sikorsky had issued a directive to Fenn Manufacturing, the company that manufactured the replacement IBP, to “shot peen” the replacement IBP before installing it into the helicopter.

By so mandating, the appellate court held that Sikorsky had in effect “re-designed” the IBP. As far as the appellate court was concerned, a new part, for purposes of GARA, included a redesigned IBP. Thus, a new 18-year period started to run when the part was installed in circa 1991/92, less than eighteen years before the accident.

Unless Sikorsky could indisputably demonstrate that the redesigned element was not a cause of the helicopter crash and that the plaintiff could not develop evidence to the contrary, questions of fact precluded summary judgment under GARA. 

Revised FRE 502 Affords Litigants New Protections

Not too long ago, it was a rule of thumb (at least as far as most lawyers were concerned) that no documents would be produced to the other side in litigation until the producing party had first reviewed them.  There are several practical reasons for such a practice: 1) you should know your own case better than your adversary and do not want to be surprised by your own documents; 2) related to No.1, if there are potentially damaging documents in your possession, you may want to settle your case while you [ethically] can before any “smoking gun” is produced; and 3) you want to avoid the disclosure of any potentially privileged documents (be they attorney-client communications, attorney work product, or materials “prepared in anticipation of litigation”).

While this approach made sense for documents in physical form [and still makes sense] for the smaller case, it is increasingly difficult to follow in the age of electronically stored information.  Even a modest case may involve relatively large volumes of electronically stored documents, including metadata that is both irretrievable and incomprehensible to a mere mortal lawyer.  Imagine [even worse] a court-ordered “vacuum” of your client’s hard drive or email server.  Your adversary may walk away with a download of information that you will not even see until you review the copy your adversary provides.  So much for advance review!

Newly amended federal rule of evidence 502 is intended to afford some relief from the 3rd item above: the inadvertent    disclosure of privileged information.  While this new rule is certainly comforting insofar as it limits the risk of so-called subject matter waiver and the consequences of inadvertent disclosure, it does not – and indeed cannot – afford protection from the strategic consequences of disclosing information you would prefer never “left the barn.”

These amendments to Federal Rule of Evidence 502 (“FRE 502”) work to limit the scope of waiver by placing restrictions on the consequences of both intentional and unintentional disclosures of privileged information.  The goal is not only to create nationwide uniformity and predictable outcomes regarding waivers of privilege, but also to reduce litigation expenses by lessening the need for costly review of documents and data in waiver review hearings.

In the case of intentional waiver and disclosure, the waiver will only extend to other documents involving the same subject matter of the disclosed document if the disclosed and undisclosed materials concern the same subject matter; and the materials, should in fairness, be considered together.1

With respect to inadvertent disclosure, the rule is more forgiving.  Rule FRE 502(b)2 states that a disclosure will not constitute a waiver – even as to the disclosed document itself – if the holder of the privilege took reasonable steps to prevent its disclosure and promptly took steps to rectify the error.3  Whether or not steps taken to prevent disclosure are reasonable will be determined according to the facts and circumstances in each case.  Factors which should be considered include: scope of discovery, number of documents, time constraints, software utilized to screen electronic information for privilege, and “the implication of a record management system before litigation has commenced.”4

The rule also deals with how a federal court will treat questions of waiver arising out of a state court proceeding and essentially gives the party opposing the waiver the benefit of the more restrictive waiver rule, be it federal or state.5

This new rule offers some comfort to counsel having little choice but to turn over any volume of un-reviewed materials.  It cannot, however, prevent the strategic disadvantage an adversary may gain through the production and review of materials.  In addition, once a document is produced or read by an adversary, no rule of evidence can strike it from memory.  This rule nonetheless offers some welcome restrictions on the consequences of disclosing privileged communication in the course of litigation.

1  Fed. R. Evid. 502(a)

2  Fed. R. Evid. 502(b)

3 Id.

4 Explanatary Note on Evid R. 502, 154 Cong. Rec. s1318 (Feb. 27, 2008).

5 Fed.R.Evid.502(c).  The rule also includes some definitions and “housekeeping” clarifications that are beyond the scope of this note.