Category Archives: Discovery

 

April 25th, 2011

iPhone GPS Data Will Open New Doors in Litigation (Updated)

Like having a private investigator in your pocket

When I heard the news last week while on vacation, the first thing that hit me was this: The courts have a new discovery issue for personal injury lawyers to deal with. That news, as you can guess from the subject heading, is that Apple iPhone users have their movements tracked by GPS so long as the device is on.

And while much of that data may have existed before, and been accessible particularly to the police, Apple will make it much easier to obtain. Why? Well, because there’s an app for that.

These are the basics:

The tracking seems to have begun in June 2010 with the iPhone 4 update to the OS and the data is stored on the phone but is automatically transferred to a computer when the iPhone is synched without the user’s knowledge.

So the info is on your phone, on your computer, and on Apple servers somewhere out there in the digital world.

Think this through for a minute with me, to see how the data can be used for a simple accident case:

It may tell you how long someone was driving before the accident. Important for a 10 minute trip and an intersection collision? Perhaps not. But if it was a truck or bus traveling for 12 hours? Now we have another story. Can it tell you how fast you were going in the 60 seconds before the accident? Many judges might well think that relevant information for a jury.

How long did that witness testify they were at the bar/restaurant before the accident? It better be accurate, because if the phone was on it will rat you out. And those phone are almost always on.

It can also be used for criminal prosecutions. And defense to support an alibi. Matrimonial is a no-brainer for the cheating spouse. It’s like putting a private investigator in your pocket.

iPhone GPS data litigation; coming soon to a courthouse near you. Don’t say you weren’t warned.

Updated: Well, that didn’t last long. Steve Jobs has admitted a mistake (why can’t politicians do that?) and a software update is in the works to make this go away.

 

April 20th, 2011

NY Appellate Court Bars Discovery of Facebook Materials

Yesterday, New York’s Appellate Division, First Department, reversed a lower court judge in refusing to allow broad discovery regarding Facebook and other social media sites. Discovery of data from social media sites is as hot a subject as can be found among litigants, and this is now the second of New York’s four appellate divisions to weigh in on the subject.  In November 2010, the Fourth Department similarly shot down a Facebook demand in McCann v. Harleysville Insurance.

Yesterday’s decision in Abrams v. Pecile resulted from semi-nude photos of the plaintiff that the defendant possessed, and an allegation of attempted extortion. According to the court, the:

plaintiff alleges that defendant, a former employee of plaintiff’s husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff’s husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.

New York, it seems, is firmly putting the brakes on out-of-control discovery requests. There was no new disclosure standard used, with the court using the time-tested:

“the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … Nor has defendant shown that broad discovery concerning plaintiff’s finances, education, immigration status, and educational background is “material and necessary” (CPLR 3101[a]).

 

February 21st, 2011

Should Residents and Students Be Sued in Medical Malpractice Cases?

Ace medical blogger Kevin Pho, of Kevin M.D.

Dr. Kevin Pho is probably the medical blogosphere’s leading blogger, and he puts up an interesting commentary entitled Medical Students Should Not Be Liable for Malpractice. Why? Because they are, for the most part, being supervised by others who are completely responsible for what they do.

He writes due to a bill in Arizona on the subject that seeks to confer immunity on medical students for errors of negligence. Dr. Pho supports the bill, writing:

Injured patients do not benefit from suing medical students.  If negligence occurs, a supervising physician will answer the charges, and participate in the malpractice process.

Leave medical students alone, and exempt them from medical malpractice lawsuits.

For the purposes of this post, I am expanding beyond this Arizona bill and also broadening the subject to include residents, who are also supposed to be supervised (albeit to a lesser extent). The principle is the same, particularly for the junior residents; there is someone overseeing what they do.

This is the issue for the lawyers: Why sue these doctors-to-be or young residents if there is a medical practitioner or hospital that is supervising, who will be liable for their conduct?

Personally, I would prefer not to sue residents, and I certainly wouldn’t want to sue a medical student, but attorneys representing patients are sometimes forced to if they are going to fulfill their obligation of “zealous advocacy” to their clients.

I’ll explain how this happens in the real world with of one of my own cases, long since settled, no names needed. Some years back a young resident was putting a catheter into an elderly patient’s jugular vein so the doctors would have easy access. He missed and put it in the carotid artery. A nurse discovered this shortly afterward, the patient was rushed into surgery to repair the artery, but the patient died.

I sued the hospital, but not the resident who did the deed since his name was an unintelligible squiggle on the chart.  Since the hospital was responsible for any treatment he gave, it didn’t really matter from a legal standpoint, right?

Well, not quite. You see, when people are a party to a lawsuit they are often treated differently than those who are non-party witnesses. And if there are different rules there will be different consequences.

In this case, the resident was produced for deposition as a person with knowledge of the event — produced as an employee, not as a defendant. I learned during the questioning that he put together a PowerPoint presentation of the event for a hospital’s internal conference that wanted to know what about this “adverse outcome.” I asked for the document, and the defense lawyer refused, telling me it was privileged. And she was technically correct under New York’s Education Law §6527(3) that governs such internal quality reviews that are done by hospitals.

But the law has an exception for those that are actually parties to lawsuits. And that exception reads:

The prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.

We were entitled, therefore, to copies of any statements a person might have made to an internal committee doing reviews of incidents, but only if that person was a defendant;  Otherwise it is privileged because of the public policy of candor in such committees to improve medical care.

Now this was the interesting part. I still had time to add the young resident to the suit, and I could then get the document. Since he was the one that actually made the error, this shouldn’t be any kind of problem from a legal perspective.  So I made an offer to defense counsel. If I sue  him, I told her, I will be entitled to the document. So why not just turn it over and I’ll agree not to sue him?

Sounds reasonable, right? I figured I was moving the case quickly and getting the document my client needed to help establish liability, and which I knew I could get one day. And at the same time the young doctor would be spared the understandable anxiety of having his name on the suit, and the potential of being included in the secretive National Practitioners Data Bank that tracks significant settlements and verdicts against doctors, the results of which could follow him when he applies for his next job. This was a pretty clear win-win for both sides.

But the answer from defense counsel a few months later was no. And further, I was told, they would cross-move to have me sanctioned if I moved to amend the suit to add the young resident as a defendant, though I was never really clear on what theory they could possibly make such a motion, unless desperation is a theory.  So I  ignored the threat and moved to add the resident as a party, which I was obligated to do if I was going to represent my client well. And defense counsel cross-moved to have me sanctioned for making threats to add him as a defendant. Yes, my motion was granted and yes the cross-motion was laughed out of court. (My expert legal ethicist wrote that I was a mensch for making the offer.)

But, to directly answer the question of Dr. Pho, there are times when having  a person added as a party to a lawsuit is beneficial because it helps in discovery.

Here are two other ways it might help: If the student/resident moves out-of-state, and they move often at this point in their careers, the plaintiff still has access to them because, as a party, they are required to participate in the litigation and it makes getting depositions and documents easier. And it also helps at trial, because if they don’t show up to testify they are going to have some serious explaining to do.

And last, if the young doctor is a party, s/he can be asked their opinions. If they are merely fact witnesses, they don’t have to give their opinions. (This is the law in New York; It may differ elsewhere.)

And so, Dr. Pho is right that the students shouldn’t be added as defendants, but only philosophically. I don’t know what the law is in Arizona with respect to the three issues I just raised, but in the bigger picture it is easier to understand why such people do get sued; Because the law treats a party to a lawsuit differently than someone who is merely an employee of a party.

 

November 17th, 2010

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue: