Click here to download  a copy of the digest.  For a hard copy, please email client_services@keanmiller.com

* The digest is a compilation of certain class action decisions and it should not be construed as a complete reflection of the holdings of the cases.

In The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., 685 F.Supp.2d 456 (S.D.N.Y. 2010), Judge Scheindlin—author of the renowned Zubulake decisions—further develops the boundaries of discovery duties in a lengthy opinion. Although the opinion does not require parties to meet a standard of perfection during discovery, the opinion serves as an important guide that offers concrete rules and potentially burdensome standards that attorneys should heed to avoid sanction.

Writing systematically, Scheindlin initially frames the fundamental concepts underlying the nature and scope of a party’s duty to preserve, collect, review, and produce requested records during discovery:

The first [critical issue] is plaintiffs’ level of culpability-that is, was their conduct of discovery acceptable or was it negligent, grossly negligent, or willful. The second is the interplay between the duty to preserve evidence and the spoliation of evidence. The third is which party should bear the burden of proving that evidence has been lost or destroyed and the consequences resulting from that loss. And the fourth is the appropriate remedy for the harm caused by the spoliation. (1)

Further, Scheindlin suggests that failing to collect relevant records from all employees involved in anticipated litigation is mere negligence. Likewise, a failure to take “all appropriate measures to preserve [electronically stored information]” is negligent. (4)  The court also held that the “failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” (5)  Indeed, this failure may be enough to warrant an adverse inference by itself. (6) 

Second, Scheindlin discusses the relationship between the duty to preserve and spoliation. Noting the court’s “inherent power” to protect the “integrity of the judicial process,” the judge warns parties and their attorneys of the possibility of imposing sanctions for breaches of the duty to preserve evidence after litigation has become reasonably foreseeable. (7)  Particularly, Scheindlin suggests that a plaintiff’s duty to preserve is triggered before litigation begins because plaintiffs generally “control the timing of litigation” and therefore reasonably anticipate its commencement. (8) 

Next, Scheindlin’s opinion examines burdens of proof for determining what should be done when relevant documents are no longer available as a result of spoliation. Specifically, who should bear the burden of establishing the relevance of the lost evidence, as well as the prejudice the loss has caused? As Judge Scheindlin explains, the degree of the burden of proof is dependent upon the severity of the sanction:

For less severe sanctions-such as fines and cost-shifting-the inquiry focuses more on the conduct of the spoliating party than on whether documents were lost, and if so, whether those documents were relevant and resulted in prejudice to the innocent party…[F]or more severe sanctions-such as dismissal, preclusion, or the imposition of an adverse inference-the court must consider, in addition to the conduct of the spoliating party, whether any missing evidence was relevant and whether the innocent party has suffered prejudice as a result of the loss of evidence. (9) 

Particularly, Scheindlin suggests that it is insufficient for an innocent party to demonstrate that lost or destroyed evidence would have been merely responsive to a discovery request. Rather, the innocent party must show that the lost evidence would have been useful in proving its claims or defenses and that it is prejudiced without the evidence. Despite this discussion about proving sanctionable misconduct, Scheindlin cautions against litigation becoming a “gotcha game.” (10)

Notably, in her opinion, Scheindlin employs a burden-shifting test:

When the spoliating party’s conduct is sufficiently egregious to justify a court’s imposition of a presumption of relevance and prejudice, or when the spoliating party’s conduct warrants permitting the jury to make such a presumption, the burden then shifts to the spoliating party to rebut that presumption. (11)

Finally, Scheindlin discusses the appropriate remedies for spoliation, implementing the Second Circuit’s three-part test. First, appropriate sanctions should deter the parties from engaging in spoliation. Second, they should shift the risk of an error in judgment to the party who wrongfully created the risk. Third, they should restore the innocent party to the same position it would have enjoyed absent the prejudicial destruction or loss of evidence by the spoliating party. Additionally, the judge recognizes that a court should impose the least harsh sanction that can provide an adequate remedy. Thus, sanctions that terminate the action—like dismissal—are only appropriate when a party has engaged in egregious behavior, like perjury, evidence tampering, or intentional destruction of evidence by burning, shredding, or hard drive wiping. Because the plaintiffs in this case only engaged in negligent behavior, draconian sanctions were not necessary.

Throughout the opinion, Judge Scheindlin additionally offers useful tips and examples regarding specific discovery issues. For instance, the failure to preserve documents in the possession, custody, or control of former employees supports a determination of gross negligence. Furthermore, the opinion provides guidance on the issue of the preservation of backup tapes. Scheindlin dismisses the existence of a duty to preserve backup tapes, unless, of course, the tapes are the only source of relevant information.

Entitled “‘Zubulake’ Revisited: Six Years Later,” the Pension Committee decision will assuredly serve as an often-used guide to assist attorneys in wrestling with the duties and challenges of discovery—especially in the quickly and constantly evolving domain of electronic discovery.
 

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(1) Pension Committee, 685 F.Supp.2d at 463.
(2) Id. at 464.
(3) Id. at 465.
(4) Id.
(5)  Id. at 464–465.
(6) But see Surowiec v. Capital Title Agency, Inc., 2011 WL 1671925, at *7 (D.Ariz. 2011)(disagreeing with Pension Committee, holding that “[p]er se rules are too inflexible for this factually complex area of the law where a wide variety of circumstances may lead to spoliation accusations”). See also Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 616–17 (S.D.Tex.2010)(refusing to follow Pension Committee’s approach of presuming relevance and prejudice when the spoliating party is grossly negligent); Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450, at *5 (W.D.N.Y. 2011)(holding that the failure to issue a written litigation hold is not a per se ground to presume or infer loss of relevant documents).
(7) Pension Committee, 685 F.Supp.2d at 466.
(8) Id.
(9) Id. at 467.
(10) Id. at 468.
(11)  Id. at 468–469.

Electronic Discovery, or “E-Discovery”, is not considered the “novel issue” it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery.

In Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007), the Western District of Louisiana granted the plaintiff’s motion to compel. In an unfair competition and trade secret theft action, the plaintiff claimed that the defendant, a former employee, had stolen various data files. Plaintiff had unsuccessfully requested production of defendant’s laptop and desktop. The Court granted the motion to compel the defendant to produce these two items because they were the most likely places that the data files would be located. The Court did institute protective measures so as to prevent the disclosure of any irrelevant or personal information.
 

In Green v. Fluor Corp., 2009 WL 1668376 (M.D. La. June 11, 2009), a case in the Middle District of Louisiana, the defendant sought access to the plaintiff’s phone and e-mail system to obtain the original version of a photograph the plaintiff had given to the defendant as part of discovery. The defendant claimed the produced photograph taken from a phone was of low quality and wanted access to the plaintiff’s phone and e-mail to obtain a clearer picture. The Court denied the motion because the defendant failed to ask for the particular form of the discovery in regards to the picture and therefore had to settle with what the plaintiff had produced.

In Marketfare Annunciation, LLC v. United Fire & Casualty Ins. Co., 2007 WL 3273440 (E.D. La. Nov. 5, 2007), the Eastern District of Louisiana dealt with a spoliation issue involving electronic evidence in a claim that arose due to Hurricane Katrina. The defendant failed to produce certain e-mails even after the plaintiff put the defendants on notice to preserve them. However, the plaintiff waited until the eve of the close of discovery to file sanctions and therefore the court denied the request.

In Thomas v. IEM, 2008 WL 695230 (M.D. La. Mar. 12, 2008), the Middle District of Louisiana dealt with a civil rights violation. The plaintiff served a Rule 45 subpoena on the defendant in order to obtain access to nine named individuals’ e-mail boxes. The Court held this was an attempt to circumvent discovery deadlines under Rules 26 and 34 and therefore did not grant the request.

In Canon USA, Inc. v. SAM, Inc., 2008 WL 2522087 (E.D. La. June 20, 2008), the Eastern District of Louisiana granted a motion to compel electronically stored data that the defendant had at his home in Florida. After Hurricane Katrina, defendant moved his computer to Florida but when discovery requests were made he did not search the computer to provide complete answers to interrogatories. The court held that this “lackadaisical” treatment of discovery was unacceptable and held that any undeleted information on the computer was discoverable. The Court ordered the defendant to obtain the services of a “forensic computer specialist” and fully respond to the discovery request.

In re Riverside Healthcare, Inc., 2008 WL 4183609 (M.D. La. Sept. 11, 2008), a case in the Middle District of Louisiana, a bankruptcy liquidating supervisor accused a creditor of destroying evidence and sought the adverse presumption that follows spoliation. The creditor had deleted e-mails that the liquidating supervisor considered necessary evidence. However, the court held that spoliation requires bad faith and here there was no bad faith due to the fact that the creditor destroyed e-mails automatically every sixty to ninety days.

In Johnson v. Big Lots Stores, Inc., 2008 WL 2191357 (E.D. La. May 7, 2008), the Eastern District of Louisiana ruled that a plaintiff could not take another deposition of the defendant’s representatives regarding how the defendants preserved and collected electronic data. The Court stated that since the plaintiffs failed to list “e-Discovery” as an issue at the original deposition and since they waited until two days before the close of discovery, the motion to compel the second deposition was denied. The Court also stated that “e-discovery” matters are no longer the novel issues that they once were with the advent of the Internet and wide expansion of computerized data collection and the plaintiffs had no legitimate excuse as to why they failed to make issue of “e-discovery” at the original deposition.

In Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. Oct. 1, 2008), the Eastern District of Louisiana allowed discovery of two non-parties’ computers. In this breach of contract claim, the defendant sought the electronic data from the plaintiff’s mother and a friend who helped him in his business. The Court held that this would not create an undue burden on the mother because the non-party was involved in the plaintiff’s business and would have relevant information stored on her computer. The subpoena was quashed as to the friend because he had adequately answered the discovery request.

In May v. Fedex Freight Southeast, Inc., et al., 2009 WL 1605211 (M.D. La. June 8, 2009), a Middle District of Louisiana case, the plaintiff brought suit for sexual harassment while she was employed by the defendant. Plaintiff sought “any and all e-mails referencing, as well as those sent to and from, plaintiff and [the accused sexual harasser].” The defendant claimed that this was not possible because the e-mail was inaccessibly archived and unsorted. The Court held that the plaintiff and defendant had to meet with the defendant’s IT department to discuss the “burden and expense of producing the e-mails requested by plaintiff.” If then there was still no agreement, the plaintiff was urged to reassert her motion to compel.
 

The United States Supreme Court recently resolved conflicts among the Circuit Courts about the citizenship of a corporation for determining diversity of citizenship jurisdiction (1). This will allow corporations to analyze with more predictable results whether to remove a case to federal court. In Hertz Corp. v. Friend, et al, No. 08-1107 (February 23, 2010) (a unanimous decision, which is unusual in and of itself), the Court decided that when determining a corporation’s citizenship for diversity of citizenship jurisdiction, the “principal place of business” of the corporation is “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities”—something that courts have referred to as the “nerve center” of the corporation.

The District Court and Ninth Circuit determined diversity did not exist because they determined that although Hertz did business in 44 states its business activity was “significantly larger” and “substantially predominated” over activity in other states. Therefore, Hertz’s “principal place of business” and thus, its citizenship, was in California. The Supreme Court agreed to review the Ninth Circuit’s decision.

The Court’s decision focused on the meaning of “principal place of business” in Section 1332(c)(1). It started its analysis with a discussion of the history and rationale for diversity jurisdiction starting with the first diversity jurisdiction statue enacted in 1789 and ending with the current version of 28 U.S.C. §1332(c)(1) which was enacted in 1958. The court then reviewed the various tests used by federal appellate courts to determine the location of a corporation’s “principal place of business.” For example, the First Circuit used a “nerve center” test (the location from which the corporations activities are directed and controlled); the Second Circuit used a “business activities” test (where a corporation’s actual business activities are located); the Sixth and Tenth circuits used a “total activities” test (a combination of the “nerve center” and “business activities” tests); the Fifth and Eleventh circuits used a two-part test (are corporate activities “centralize or de-centralized” and then either a “place of operations” or a “nerve center” test.

The old “nerve center” test won out. The Court found that the best way to identify the principal place of business of a corporation as “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” This conclusion was reached for three reasons: (1) the statutory language supported the approach of identifying a single state as the principal place of business; (2) it leads to “administrative simplicity” and predictability that will allow courts to focus on the underlying merits of a case rather than jousting over jurisdiction; and (3) the legislative history supported the conclusion.
 

 ********************************

 (1) The diversity jurisdiction statute, 28 U.S.C. §1332(c)(1) says that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.”

Since that time, a number of lawsuits related to Chinese drywall have been filed in various State and Federal Courts. 

In an effort to organize the numerous lawsuits that have been filed in Federal Courts, the Judicial Panel on Multidistrict Litigation recently issued a Transfer Order that class action suits filed around the country against Chinese drywall manufacturers would be docketed in the Eastern District of Louisiana.

The United States Judicial Panel on Multidistrict Litigation is an entity of the United States Federal Court System.  It was created by Congress in 1968 under 28 U.S.C. §1407.  The Panel has the responsibility of determining whether civil actions pending in two or more federal judicial districts should be transferred to a single federal district court for pretrial proceedings.  When asked to consider a transfer, the Panel will:

1. determine whether civil actions pending in different Federal district courts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and

2. Select the judge or judges and court assigned to conduct such proceedings.

[United States Judicial Panel on Multidistrict Litigation]

The rationale behind combining the lawsuits in this way for pretrial proceedings is to avoid discovery duplication, to prevent inconsistent pretrial rulings; and to conserve the resources of the parties, their counsel, and the judiciary.  Generally, the court will set standing orders or pretrial orders informing the lawyers involved of the ground rules, deadlines and procedures the court expects the litigants to follow.  After discovery and completion of pretrial matters, the case will be remanded back to the transferor court for trial.

While the Transfer Order for the Chinese drywall cases listed only ten cases, it is likely that the many other cases filed will be considered tag – along cases.  A case may only be characterized as a "tag-along action" if it involves "common questions of fact with actions previously transferred" under 28 U.S.C. § 1407.  See, Rule 1.1 of the General Rules for Judicial Panel on Multidistrict Litigation for the definition.  Upon learning of the pendency of a potential “tag-along action,” as defined in Rule 1.1, an order may be entered by the Clerk of the Panel transferring that action on the basis of the prior hearings and for the previously expressed reasons of the Panel.  The Panel then issues a Conditional Transfer Order transferring to the court tag-along actions that the Panel determined has “questions of fact common to the actions previously transferred”.  The order does not become effective until it is filed with the transferee district court.  The transmittal of the order to the transferee district court shall be stayed fifteen days from the entry thereof and if any party files a notice of opposition with the clerk of the Panel with in this fifteen day period, a stay will be continued until further order of the Panel. [See Rule 7.4 of the General Rules for Judicial Panel on Multidistrict Litigation]
 

The Louisiana Legislature has adopted House Concurrent Resolution No. 185, authored by Representative Tim Burns.  The resolution urges and requests that the Department of Health and Hospitals and the Deptartment of Insurance, in consultation with the Louisiana State Licensing Board for Contractors, investigate the health risks associated with living in homes that contain drywall imported from China, study the potential homeowners insurance coverage issues, including triggers, endorsements, and exclusions to policies that are related to drywall imported from China, and determine whether such material should be identified as a substandard, unsafe building material.  The resolution goes on to request a report of the findings and recommendations of this study to the legislature prior to the convening of the 2010 regular session.

A copy of the enrolled version of the resolution can be seen here: Download file

During a presentation at the Defense Research Institute’s Toxic Torts and Environmental Law Seminar in New Orleans on Friday March 9, 2007, Dr. Pamela Williams of ChemRisk, Inc. indicated that she was preparing to publish a study on the potential for exposure to benzene from products containing trace (less than 0.1%) levels of benzene. Her study will likely conclude that measured airborne concentrations of benzene during the handling or use of petroleum-derived products in the United States have typically not exceeded workplace standards since at least the early 1980's. The Williams’ study will also likely conclude that indoor air modeling shows that workplace exposures are likely to be minimal during the application of products containing trace levels of benzene. Finally, the Williams study will likely conclude that petroleum-derived products containing trace levels of benzene are not expected to produce 8-hour TWA airborne concentrations that exceed current regulatory standards under typical product use scenarios.

Defense counsel and their clients should be looking for details on the publication of Dr. Williams study in the near future. Dr. Williams’ materials indicate that she can be reached at pwilliams@chemrisk.com. 

"We are very excited to welcome these distinguished attorneys to our law firm. They are an outstanding resource for our clients. Our offices are located in Louisiana's major port cities --- New Orleans, Baton Rouge and Lake Charles -- and this esteemed group brings over 150 years of combined experience in maritime issues, admiralty law, marine insurance, oil & gas, drilling and exploration, pipelines, construction, and energy law to our clients." said Gary A. Bezet, managing partner of the 121-lawyer firm.

Michael A. McGlone, Charles R. Talley, Glenn P. Orgeron, Lisa A. Easterling, Bradley J. Schlotterer, and Lawrence J. Hand, Jr. join the firm as partners in the New Orleans office. The firm also welcomes Karen Waters Shipman, Stephen C. Hanemann, Jamie Domilise Henry, Kelly B. Green, and Michael J. O'Brien as associates. Heather Ashman Johnson joins the firm as of counsel. All were formerly with Lemle & Kelleher, LLP of New Orleans.

About the New Partners:

Michael A. "Mike" McGlone joins the firm as a partner in the New Orleans office. He is the senior-most Admiralty and Maritime lawyer in the firm. He has extensive experience in admiralty and maritime law, maritime litigation, marine insurance, personal injury defense, allisions, collisions, and appeals. Mr. McGlone, a native of New Orleans, received his J.D. from Loyola University Law School in 1975 where he was a member of the Loyola Law Review. He earned his B.A. in Business Administration, cum laude, from Loyola University in 1972. Upon graduation from law school, he served as a law clerk to the Hon. Herbert W. Christenberry of the United States District Court for the Eastern District of Louisiana.

Charles R. "Chuck" Talley joins the firm as a partner in the New Orleans office. He practices in the Admiralty and Maritime and Oil & Gas practice groups. He has particular experience in admiralty and maritime law, personal injury defense, property damage claims, appeals, Corbello litigation, and oil & gas law. Mr. Talley received his J.D. from Florida State University in 1981 where he was a member of the Florida State University Law Review and served as Articles and Notes Editor. He earned B.A., magna cum laude, from Vanderbilt University in 1978.

Glenn P. Orgeron joins the firm as a partner in the New Orleans office. A native of New Orleans, he practices in the Admiralty and Maritime and Construction practice groups. He has particular experience in construction law, consumer credit issues, and product liability litigation. Mr. Orgeron is a Lieutenant Colonel (Retired) in the United States Marine Corps. He has served in a variety of legal positions for the United States Marine Corps, including assignments as Deputy General Counsel, Assistant General Counsel, and General Counsel in wide range of jurisdictions including Hawaii, Japan, the Indian Ocean, Washington, D.C., California, and Panama. During his military career, Mr. Orgeron handled all aspects of felony criminal trials and administrative law litigation matters and advised the staffs of the Chief of Naval Operations, Joint Chiefs of Staff, and major operational commanders on worldwide international and operational law. Prior to his 20-year military career, he served as an electrical engineer with the NASA Manned Spacecraft Center in Houston on the Apollo XI Lunar mission and on the Apollo Lunar Rover development team. Mr. Orgeron received his J.D. from the Tulane University Law School in 1978 and his Master of Legal Letters in International Law from The George Washington University in 1983. He earned his Master of Science in Electrical Engineering from Louisiana State University in 1970 and his Masters of Science in Administration from The George Washington University in 1975. Mr. Orgeron earned his B.S. in Electrical Engineering from Tulane University in 1968.

Lisa A. Easterling joins the firm as a partner in the New Orleans office. She practices in Construction and Litigation groups. Ms. Easterling has extensive experience in complex commercial construction matters, construction defect cases, mold litigation, and Fair Credit Reporting Act litigation. Ms. Easterling received her J.D. from the University of Mississippi Law School in 1992 where she was a member of the Mississippi Law Review. After law school, she served as a judicial law clerk to the Hon. George Arceneaux, Jr. , the Hon. Henry A. Mentz, Jr. and the Hon. Veronica D. Wicker, all of the United States District Court for the Eastern District of Louisiana. She earned her B.S. in Journalism, with honors, from the University of Southern Mississippi in 1988.

Bradley J. Schlotterer, a native of New Orleans, joins the firm as a partner in the New Orleans office. He practices in the Admiralty and Maritime practice group. Following law school, Mr. Schlotterer served as a federal law clerk to the Hon. G. Thomas Porteous, Jr. at the United States District Court for the Eastern District of Louisiana. Mr. Schlotterer received his J.D. from the LSU Law Center in 1995. He earned his B.S. in Finance from Louisiana State University in 1991.

Lawrence J. Hand, Jr. joins the firm as a partner in the New Orleans office. He practices in the Energy, Pipeline and Toxic Tort practice groups. Mr. Hand has extensive experience in energy law, regulation and litigation, insurance coverage and litigation, toxic tort litigation, contract litigation, and complex commercial disputes. He has particular experience in complex legal representation of interstate and intrastate natural gas pipelines, natural gas gathering companies, crude pipelines, natural gas processors, power generators, marketers and distributors, oil and gas producers, chemical manufacturers, and aluminum manufacturers. Mr. Hand also represents life insurers, regional banks, malpractice insurers, and general liability insurers. Mr. Hand received his J.D., cum laude, from the Loyola University School of Law in 1995 where he was a member of the Loyola Law Review. He earned his B.A. in Secondary Speech and Communication Education from the University of New Orleans in 1991.

About the New Attorneys:

Karen W. Shipman joins the firm as an associate in the New Orleans office. She practices in the Admiralty and Maritime practice group. She has particular experience in admiralty issues involving a wide variety of admiralty and oil & gas issues, including Jones Act, personal injury, oil and gas exploration, well blowouts, cargo damage, vessel collisions, and barge damage. She also has experience in construction law, consumer credit reporting, and general personal injury litigation. Following law school, Ms. Shipman served as a contact attorney in New York City. Upon her return to New Orleans, she served as a judicial law clerk to the Hon. Fredericka H. Wicker of the Twenty-Fourth Judicial District Court for the Parish of Jefferson. Karen received her J.D., cum laude, from the Tulane University School of Law in 1998 with a Certificate of Specialization in Admiralty Law. She earned her B.A. in Anthropology and Human and Natural Ecology from Emory University in 1993.

Stephen C. Hanemann joins the New Orleans office as an associate attorney. He practices in the Admiralty and Maritime practice group. He has extensive experience in a wide variety of admiralty issues, including Jones Act, personal injury, oil and gas exploration, pipeline spills, drilling accidents, well blowouts, cargo damage, ship collisions, ship allisions, vessel groundings, lift boat and jack-up rig accidents, vessel liens, sunken barges, vessel mortgage filings, product liability, redhibition, commercial lease agreements, and other commercial litigation issues. Mr. Hanemann received his J.D. from the Loyola University School of Law in 2002. He earned his B.A. in French from the University of Texas at Austin in 1999.

Jamie Domilise Henry joins the New Orleans office as an associate attorney. She is a native of New Orleans and practices in the Admiralty and Maritime practice group. Ms. Henry received her J.D. and her Bachelor's Degree in Civil Law from the LSU Law Center in 2002. She earned her B.A. in Biology (1998) and English (1999) from the University of Mississippi.

Kelly B. Green joins the New Orleans office as an associate attorney. She practices in the Admiralty and Maritime practice group. Ms. Green received her J.D. from the Tulane University School of Law in 2003. She earned her B.A. in Political Science from Mary Baldwin College in 2000.

Michael J. O'Brien joins the New Orleans office as an associate attorney. A native of New Orleans, he practices in the Admiralty and Maritime practice group. He has extensive experience in a wide variety of admiralty issues, including Jones Act and personal injury defense, maritime litigation, oil and gas exploration, drilling accidents, well blowouts, cargo damage, ship collisions, ship allisions, vessel groundings, lift boat and jack-up rig accidents, vessel mortgage filings, product liability, redhibition, as well as premesis liability, construction defect litigation and appeals. Michael received his J.D. from Loyola University in 2001 where he received the Joseph Rault Award for excellence in Admiralty and Maritime Law. He earned his B.A. in Political Science from Iowa State University in 1998. He attended Iowa State on a NCAA football scholarship.

Heather Ashman Johnson joins the New Orleans office as of counsel. A native of New Orleans, Ms. Johnson practices in the Admiralty and Maritime practice group. She has served as Counsel for Brown & Root, Inc. in Houston, Texas and as a General Attorney with the Saudi Arabian Oil Company in Saudi Arabia. She has particular experience in complex commercial maritime issues including all aspects of international sales contract negotiations, chartering activities, downstream joint ventures, and in the negotiation of multi-million dollar cargo damage claims. Ms. Johnson received her J.D. from the University of Pennsylvania Law School in 1981 and a Master of Laws, with distinction, from the Tulane University School of Law in 1983. She earned her B.A. in Political Science, summa cum laude, from Newcomb College in New Orleans in 1977.

About the Admiralty and Maritime, Construction and Energy Law Groups:

Kean Miller represents a wide range of clients in admiralty and maritime issues in Louisiana. Our lawyers have extensive experience in the shipping, marine insurance, tugs and towage, drilling rigs, and oil & gas exploration. Our offices are located in major port cities throughout Louisiana, including New Orleans, Baton Rouge, and Lake Charles, Louisiana. Our Admiralty and Maritime team has significant experience in personal injury defense, property damage claims, appeals, and oil & gas law. We offer clients detailed admiralty experience with regard to activities in the "oil patch" involving the exploration, development, production and transportation of oil and gas. We represent numerous clients in "brownwater" and deepwater (or "bluewater") matters throughout the Gulf Coast region. Many members of the team are involved at a leadership level in the Maritime Law Association, the Greater New Orleans Barge Fleeting Association, the Marine Index Bureau, Mariners Club Port of New Orleans, and the maritime and admiralty sections of the Louisiana State Bar Association and the American Bar Association. We represent our clients before all state and federal courts, governmental regulatory and administrative bodies, and in complex litigation. We serve as counsel to local, national and international oil and gas producers, vessel owners and operators, shipyards, drilling contractors, service companies, brokers, barge lines, and underwriters.

Kean Miller represents many of Louisiana's most successful construction businesses and Fortune 500 companies in construction law matters. We handle legal issues in connection with contract interpretation, including drawings, specifications, change orders and back charges, lien rights and remedies, contract disputes and litigation. In addition, we have substantial experience in the Private Works Act, the Public Works Act and the Miller Act. Our lawyers assist industry clients with issues involving performance and payment, bid and retainage bond rights, liability and responsibility. On behalf of our clients, we have negotiated with owners, general contractors, subcontractors, architects, laborers, material men, bond companies, suppliers, architects, attorneys, bankruptcy trustees, bankers, and public officials.

We also represent clients in lawsuits, arbitration, mediation and alternative dispute resolution proceedings. Recently, we have represented clients in lawsuits involving insurers of engineers and building owners, and suits for and against sub-contractors and architects.

Kean Miller has represented the Louisiana energy industry since its earliest presence in the state. Many of the firm's national and international chemical and refining clients came to our predecessor firm in the 1920s for assistance in the acquisition of land for their first Louisiana sites. As these companies expanded in Louisiana, so did the variety and complexity of their legal needs. Today, these energy clients continue to rely on Kean Miller for their legal services based on our understanding of the complex needs of their industry, our knowledge of their business, and our Louisiana know-how.

Kean Miller has extensive experience in energy law, regulation and litigation. We have particular experience in complex legal representation of interstate and intrastate natural gas pipelines, natural gas gathering companies, crude pipelines, natural gas processors, power generators, marketers and distributors, oil and gas producers, chemical manufacturers, and aluminum manufacturers.

About Kean Miller:

With more than 120 lawyers, Kean Miller serves the legal needs of Louisiana businesses and Fortune 500 companies. The firm maintains two offices in Baton Rouge, and full service offices in New Orleans, Lake Charles and Plaquemine, Louisiana. Kean Miller is the largest law firm in the Greater Baton Rouge region. The firm serves clients in numerous industries including energy, petrochemical and chemical, technology and telecommunications, shipping and transportation, drilling and exploration, pipelines, media and advertising, financial services, insurance, gaming, government and education, health care, manufacturing, real estate, retail, construction and leasing. The firm combines the talent and expertise of its lawyers into multi-disciplinary client and industry teams. These teams are comprised of seasoned legal professionals from a variety of disciplines who are equipped to identify legal and business needs and to develop superior service strategies that provide unmatched support to the client.

For more information, contact Steve Boutwell at 225.389.3736, or steve.boutwell@keanmiller.com

Reproduced with permission from Toxics Law Reporter, Vol. 20, No. 47, pp. 1067-1069 (Dec 8, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com

In the wake of two hurricanes, many Louisiana industries, businesses, and citizens are left with a monumental task of cleaning up the damages caused by the storms. Many Louisianians also face the somewhat unknown future of what potential liability lies ahead under various environmental statutes and programs. After the storms, the State of Louisiana and the federal government temporarily eased many requirements under various environmental regulatory programs so that immediate actions could be taken to preserve property and protect lives. Significant questions remain, however, as to how these agencies are going to use their enforcement discretion in the future with respect to events that occurred during and after the storms.

Read the entire article here: Download file

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 795-797 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com

The damages caused by Hurricane Katrina in Louisiana, Mississippi, and Alabama constitute the largest natural disaster in U.S. history. Hurricane Katrina's impact on insurers and their policyholders have already set in motion what will probably be one of the largest legal and public policy storms to hit the United States in modern times. Nowhere will the storm be more evident than in disputes involving wind and water damage coverage.

The eye of the coverage storm is already manifesting itself in coastal areas of Louisiana, Mississippi, and Alabama.

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Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 793-795 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com

Katrina has already spawned a hurricane of lawsuits. These suits include: suits by individuals who claim they were injured by hazardous substances that leaked from storage facilities, refineries, or pipeline facilities; suits by individuals who claim that oilfield production and pipeline activities caused wetland damage that exacerbated the effects of hurricane Katrina; and suits by individuals who claim faulty levees caused the widespread flooding that followed in the days after Katrina made landfall. All of these suits have a common thread: each will require the courts to determine whether the damages sued upon resulted from nature's fury or human blunder.

Louisiana, like many other states, recognizes the general principle that an "act of God" can be a complete defense to liability for negligence and strict liability claims. Louisiana courts have generally used a consistent definition of the term "act of God," but the application of that definition in the context of a specific event has not always been consistent or clear, particularly when the issue of contributing human fault is at play.

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The past twenty years has seen a dramatic increase in the volume of mass tort and other forms of complex litigation. As the volume of litigation has grown, so too have the burdens on the judiciary and the litigants. To address this growing problem, it is imperative that modern adjudicatory tools be adopted to achieve the goal of securing the just, speedy, and inexpensive determination of every action. One such case management tool that has developed in the context of mass tort litigation - but that can be equally effective in other types of litigation - is the Lone Pine Order.

In the ensuing twenty years, other courts have gradually become aware of the usefulness of case management orders that require, as a prerequisite for continued prosecution of the suit, the production of objective evidentiary support capable of making a prima facie showing on the key elements of the plaintiffs' claims. See, e.g., Cherry v. Air Products and Chemicals, Inc., No. 85-447 (Ct. Common Pleas, Delaware County, Pa., Order dated June 17, 1987) (emergency personnel and others who responded to a fire at a dumpsite claimed injuries from chemical exposure, and the Court, unhappy with the failure of routine discovery to yield results, stayed all discovery pending plaintiffs' production of expert opinions that each plaintiff's exposure to the site caused his particular illness); Adinolfe v. PJP Landfill, No. L-066549-86 (Sup. Ct., Hudson County, New York, Order dated August 21, 1987), reported in 2 Toxics Law Rptr. 506, September 30, 1987 (approximately 80 residents near a landfill sued 1717 defendants alleged to have contributed waste to the site, alleging personal injuries from fumes and smoke. The trial court ordered the plaintiffs to file "certificates stating as to each defendant, and in specific detail, the factual nexus between each defendant's conduct and/or activities and the damages and injuries alleged by each plaintiff." The plaintiffs' failure to file most of the certificates, and the inadequacy of those filed, resulted in dismissal of the case without prejudice); Pannick v. New Jersey, No. L-86-5162 (Sup. Ct., Mercer County, New Jersey, Order dated April 28, 1989), reported in 4 Toxics Law Rptr. 117, July 5, 1989 (parents of a cancer-stricken child alleged that more than two dozen defendants had contaminated their well water and thus caused the cancer. The court ordered plaintiffs to show a causal connection, with medical expert testimony, between the injuries and specific contaminants); Eggar v. Burlington Northern Railroad Co., 1991 U.S. Dist. Lexis 19240, No. CV 89-159-BLG-JFB (D. Mont., Order dated December 18, 1991) (railroad workers claiming damages from exposure to hazardous substances on the job; court requires each plaintiff to submit a physician's affidavit diagnosing specific illnesses, identifying the substances which "to a reasonable degree of medical certainty" caused the illnesses, and the scientific and medical basis for the physician's opinion). Claar v. Burlington Northern Railroad Co., 29 F.3d 499, 500 (9th Cir. 1994) ("[o]ut of concern that plaintiffs might not be able to demonstrate a causal connection between their workplace chemical exposure and their injuries, the district court issued a case management order consolidating the twenty-seven cases for pretrial purposes. The order required plaintiffs to submit affidavits describing their exposure to the chemicals they claim harmed them, and affidavits from physicians listing each plaintiff's specific injuries, the particular chemical(s) that in the physician's opinion caused each injury, and the scientific basis for the physician's conclusions.")

More recently, the United States Fifth Circuit Court of Appeal expressly approved the use of a Lone Pine order to get control of mass tort litigation. In Acuna et al. v. Brown & Root, et al., 200 F.3d 335 (5th Cir., 2000), approximately 1,600 plaintiffs in two separate actions filed suit claiming they were exposed to and injured by the defendants' uranium mining and processing activities. Some of the plaintiffs worked in uranium mines or processing plants while others alleged exposure to radiation or uranium dust or tailings through contract with family members who worked in the mines or through environmental factors, such as wind and groundwater. To get early control of the litigation, the district court issued pre-discovery scheduling orders that required plaintiffs to establish certain elements of their claims through expert affidavits. Specifically, the affidavits had to identify, for each plaintiff: (1) the injury or illness suffered by the plaintiff; (2) the materials or substances that caused the injury; (3) the facility thought to be the source of the materials or substances; (4) the dates or circumstances and means of exposure to the materials; and (5) the scientific and medical bases for the expert's opinions. The plaintiffs responded by submitting approximately 1,000 form affidavits from a single expert. The form affidavit generally identified illnesses and effects that can occur from exposure to uranium, stated that the relevant plaintiff suffered from some or all of these illnesses, and stated that the expert had reviewed the plaintiff's medical data and concluded that exposure to uranium and its byproducts had reached clinically significant doses. The affidavits also generally listed all of the mining facilities covered in the lawsuit as responsible for causing each plaintiff's exposure, and identified the routes of exposure as including inhalation, ingestion, and direct skin contact.

The court found that the affidavits did not comply with the pre-discovery order and gave the plaintiffs an additional month to comply. Plaintiffs then submitted additional affidavits. Although some of the plaintiffs were identified as having specific diseases, specificity was not provided as to the other elements required in the order. As a result, the district court dismissed the case, and the plaintiffs appealed.

On appeal, the plaintiffs argued that the pre-discovery orders requiring expert support for the details of each plaintiff's claim imposed too high a burden for the early stage of the litigation. The Fifth Circuit rejected the argument and affirmed the dismissal of the case. The Court recognized that "Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation." 200 F.3d at 339. It held that such orders "... are issued under the wide discretion afforded district judges over the management of discovery under Fed.R.Civ.P. 16." ( Id.) Addressing the argument that the order was required too early in the litigation, the Court noted that the order simply required that information which the plaintiffs should have developed as part of their pre-filing obligation to make a reasonable inquiry as to the evidentiary support for their allegations. The court explained:

... Neither the defendants nor the court was on notice from plaintiffs' pleadings as to how many instances of which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries. It was within the court's discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require.

* * *

The scheduling orders issued below essentially required that information which plaintiffs should have had before filing their claims pursuant to Fed.R.Civ.P. 11(b)(3). Each plaintiff should have had at least some information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries. (Id.) (Internal citations omitted).

The Court's recognition that, at their core, Lone Pine orders simply require production of that which plaintiffs ought to have obtained before filing suit points to a problem that is all too common in complex litigation - a vague petition followed by onerous discovery requests and time consuming litigation as the plaintiffs attempt to use "discovery" to do that which should have been done before suit was filed. In this regard, the opinion in Acuna can be viewed more broadly as a reminder to litigants that the "reasonable inquiry" requirement of Rule 11 is not simply window dressing - it is a real obligation, and the Lone Pine order can be used to enforce it.

The critical point to remember with Lone Pine orders is that whatever perceived burdens they place on the plaintiffs must be weighed against the burdens protracted litigation will impose on the court system and the defendant. They do not, as plaintiffs often argue, unfairly require the plaintiffs to prove their case before proceeding with the lawsuit. They merely require plaintiffs to define their claims clearly and to demonstrate that there is some competent evidentiary support to justify proceeding with time consuming, burdensome, and complex litigation.

Thus, Lone Pine orders are perfectly consistent with the principles espoused in the Federal Judicial Center's Manual for Complex Litigation. The Manual for Complex Litigation discusses several key management issues that should be employed in managing complex litigation, all of which can be effectuated through a carefully considered Lone Pine-type Order.

First, the Manual recognizes and encourages courts to use "... the numerous grants of authority that supplement the court's inherent power to manage litigation." (Manual for Complex Litigation, Fourth, §10.1.) One of these specific grants of authority is Federal Rule Civ. Proc. 16(c)(12), which encourages courts to adopt "special procedures" to manage appropriate cases. It provides:

(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to

(12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems....

Second, the Manual recognizes that effective judicial management is "active" and "substantive." (Id., at § 10.13.) The management should be "active" in the sense that the judge will anticipate crucial issues before they arise "... rather than await passively for counsel to present them." (Id.) It should be "substantive" by allowing the court to become familiar with the key substantive issues at an early stage so that the court can make informed rulings on issue definition and narrowing. (Id.) To accomplish this, the court should seek specific information and require the attorneys, at the earliest possible stage, to "... describe the material facts they intend to prove and how they intend to prove them." (Id., at § 11.33.)

Third, the Manual recognizes that the best time to adopt "special procedures" to manage potentially difficult or protracted litigation is during the very early stages. "Judicial supervision is most needed and productive early in the litigation." (Id., at §10.1.) One of the key components of effective litigation management is a plan that requires the early identification of the key material facts and legal issues that will dictate the direction of the litigation. As recognized by the Manual for Complex Litigation, "[t]he sine qua non of managing complex litigation is defining the issues in the litigation. The materiality of facts and the scope of discovery (and the trial) cannot be determined without identification and definition of the controverted issues...." (Id., at §11.31.)

An effective Lone Pine order accomplishes all of these goals. The two-fold requirement that plaintiffs identify specifically their injuries and produce some form of objective evidence of causation has the effect of quickly defining where the critical litigation issues will lie. This, in turn, allows the court, very early, to determine how pre-trial motions and discovery should be scheduled, and gives the court the type of concrete information it will need to address discovery disputes that inevitably arise in complex litigation.

Although plaintiffs often complain that the orders are one-sided, they are only "one-sided" to the extent that the law places the burden of proof on the plaintiff in litigation. Plaintiffs control the timing of when a lawsuit is filed, so it is not unreasonable to require the initial production of concrete information to be provided by the plaintiffs.

Furthermore, plaintiffs often lose sight of the fact that effectively responding to a Lone Pine order can help their own cause immeasurably. An effective response communicates to the defendant and to the court that the plaintiffs have "done their homework" and are prepared to present an effective case. This can foster early and meaningful alternative resolution methods that might not otherwise be undertaken until long after the parties have spent considerable time and money.

Thus, Lone Pine orders should viewed as more than tools to "weed out" baseless claims at an early stage of litigation. Creative variations of the Lone Pine order should be used more frequently as a case management tool in complex litigation to help define issues, streamline discovery, and allow the court to take control of the litigation at the earliest possible stages.

About the Author:

Glenn M. Farnet is a partner in the Baton Rouge office of Kean Miller. He joined the firm in 1991 and practices in the commercial litigation, class action and toxic tort defense groups. Glenn has more than 14 years of experience in toxic tort defense litigation, product liability defense litigation, class action defense litigation, and commercial litigation. He advises clients on litigation strategy and class action litigation management. Glenn has particular experience in class action litigation involving consumer products, computers and software, chemical exposures, mass torts arising from releases or catastrophic accidents, as well as product liability litigation. He can be reached at 225.382.3431 or glenn.farnet@keanmiller.com

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