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Monthly Archives: January 2011

Lender sued for ‘fraudulent’ foreclosure

Can a mortgage holder on the one hand promise to help a homeowner who’s fallen behind on her payments, while simultaneously working behind the scenes to bring down the hammer of foreclosure?

That’s a question that increasingly needs to be answered as the foreclosure crisis worsens, spreading to cities like Seattle, Houston and Chicago that until recently have been relatively free from the worst effects of the housing bust.

One big time lender discovered last week that it may be liable after not coming through on a promise to modify a homeowner’s mortgage.

That decision came in a lawsuit brought by Claudia Aceves against U.S. Bank.

Aceves obtained a loan from Option One Mortgage Corporation in 2006. The loan was secured by a deed of trust on Aceves’s home in Los Angeles, California.

Aceves borrowed $845,000 at an initial rate of 6.35 percent. After two years, the rate became adjustable. The term of the loan was 30 years and Aceves’s initial monthly payments were $4,857.

Option One later transferred its entire interest under the deed of trust to U.S. Bank.

By January 2008, Aceves was in trouble and could no longer afford her monthly payments. She filed for Chapter 7 bankruptcy shortly after nonjudicial foreclosure proceeding were commenced in March 2008.

The automatic stay on the foreclosure proceedings got U.S. Bank’s attention. Aceves claims that, when she contacted U.S. Bank after filing for bankruptcy, she was told that the bank was willing to work with her on loan modification.

The offer of help was conditional, according to Aceves. She alleges that the bank told her its assistance would be forthcoming only once her loan was out of bankruptcy.

Aceves had intended to convert her case to Chapter 13 and use her husband’s resources to save her home. But with U.S. Bank’s alleged promise to modify her loan, Aceves did not oppose the bank when it filed a motion in the bankruptcy court to lift the stay.

In December 2008, the bankruptcy court lifted the stay and U.S. Bank moved quickly to schedule Aceves’s home for public auction.

On January 9, 2009, Aceves’s home was sold at a trustee‘s sale to U.S. Bank. Aceves and her husband vacated their home during subsequent eviction proceedings.

What of U.S. Bank’s alleged promise to modify Aceves’s loan?

According to Aceves, once the automatic stay was lifted in her bankruptcy case, U.S. Bank’s promise to work with her went up in smoke and she was never contacted about loan modification.

In fact, Aceves thinks that U.S. Bank never intended to work with her, offering to help only to convince Aceves to forgo further bankruptcy proceedings and permit the bank to lift the automatic stay and foreclose on her home.

Feeling played, in April 2009 Aceves sued U.S. Bank in California court. She filed claims for fraud and promissory estoppel, wanting to set aside the trustee’s sale of her home.

The trial court dismissed the lawsuit, but Thursday the California Court of Appeal decided that Aceves had a viable claim for promissory estoppel.

“We conclude (1) plaintiff could have reasonably relied on the bank‘s promise to work on a loan reinstatement and modification if she did not seek relief under Chapter 13, (2) the promise was sufficiently concrete to be enforceable, and (3) plaintiff‘s decision to forgo Chapter 13 relief was detrimental because it allowed the bank to foreclose on the property,” the court said. (Aceves v. U.S. Bank)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Gay houseguest subject to family violence law

A New Jersey man discovered he had a problem when one day he stepped out of the shower only to find his male houseguest smiling at him through the bathroom window. 

He just didn’t realize how big the problem actually was. 

This is the story of S.Z. and M.C. To make it easy, S.Z. is the plaintiff and M.C. is the defendant.

The plaintiff lives with his wife and children in a home in Sussex County. He runs a renovation business.

The defendant was the plaintiff’s bookkeeper and needed a place to live. The plaintiff claims that the defendant is a homosexual.

In October 2008, the plaintiff gave permission for the defendant to move into his home.

One suspects that there must have been some sexual tension beforehand, but the defendant’s feelings for the plaintiff surely became impossible to ignore on April 12, 2009. The plaintiff claims that that day he stepped out of the shower and found the defendant on a ladder against the outside of the house, peering through the bathroom window, smiling.

Now, call me insensitive, but I’m not the sort who would grant a Mulligan for this sort of behavior. Nope, I’m a one-peep-and-you’re-outa-my-house kinda guy.

But the plaintiff must be of a more tolerant stripe because he didn’t kick the defendant out right away.

Instead, the plaintiff finally laid down the law when later that month he allegedly caught the defendant getting down from the same ladder after he had finished showering.

Me, I would have moved the ladder by this time and had it under lock and key, but call me paranoid.

The second Peeping Tom incident forced the plaintiff to confront the defendant about spying into the bathroom. The plaintiff reminded the defendant that he was not gay and had no interest in having a relationship with the defendant.

The defendant tried to explain his conduct away by saying he hadn’t had sex in a long time. One can imagine that this revelation didn’t exactly help clear the air.

Instead, the plaintiff told the defendant to move out and hand over his house keys.

The defendant left, but the plaintiff claims that his troubles were just beginning. The plaintiff alleges that the defendant started stalking him, going to the extreme of installing a hidden camera in the plaintiff’s truck.

The plaintiff finally had enough and filed an action for protection under the New Jersey Prevention of Domestic Violence Act.

The trial court short-circuited the plaintiff’s harassment claim, deciding that an adult male guest, who resided in the plaintiff’s home for seven months, did not constitute a “household member” for purposes of the Act.

On Wednesday, the New Jersey Appellate Court righted a wrong by acknowledging that the state’s domestic violence statute protected individuals in the plaintiff’s situation. 

“We have found that the Act covers unwelcomed sexual overtures of a harassing nature between two parties of the opposite sex who lived in the same home for three months. …

“Jurisdiction under the Act is present here just as it would be if the plaintiff’s wife alleged the same behavior found in the plaintiff’s complaint directed against her. The fact that the plaintiff is heterosexual and the defendant may have sought a homosexual liaison does not affect jurisdiction,” the court said. (S.Z. v. M.C.)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Is engineering firm liable for negligent highway design?

Is an engineering firm liable for failing to upgrade the safety features at a freeway interchange the company was hired to redesign?

Last week, the Illinois Supreme Court answered that question, and personal injury attorneys won’t like the answer.

The issue was brought to the forefront in a lawsuit brought by Corinne Thompson against engineering firm CH2M Hill, Inc.

Thompson’s husband and daughter were killed on Nov. 27, 1998, in an automobile accident that occurred at the I-94-Grand Avenue interchange in Gurnee, Illinois.

The accident happened on the bridge deck over I-94 when an eastbound vehicle on Grand Avenue spun out of control, flipped over the median and landed on top of Thompson’s westbound vehicle.

Thompson suffered severe injuries in the crash, in addition to the loss of her husband and daughter.

The Grand Avenue-I-94 interchange had been redesigned several years earlier in connection with the development of the Gurnee Mills shopping mall.

The shopping mall developer, Western Development Corporation (WDC), hired CH2M Hill for the project. The job included the design of two new cloverleaf ramps to I-94 in addition to the replacement bridge deck. The state department of transportation approved the plans.

Thompson sued CH2M Hill for failing to include a “Jersey barrier” in its design for the new interchange. The Jersey barrier purportedly would have prevented eastbound Grand Avenue traffic from crossing over into westbound traffic.

The original bridge deck had a concrete median approximately six inches high and four feet wide. CH2M Hill’s design for the replacement bridge deck resulted in a median approximately seven inches high and four feet wide.

Thompson’s expert witness testified that CH2M Hill’s failure to include a Jersey barrier in its design breached the ordinary standard of care for highway engineers.

The Illinois Supreme Court decided that this testimony was irrelevant because CH2M Hill’s standard of care was defined by the engineering firm’s contract with WDC, the mall developer.

The court said that CH2M Hill’s duty to Thompson “was circumscribed by the terms of [CH2M Hill's] contract with WDC, which did not require [the engineering firm] to consider and design an improved median barrier.”

The court explained that the parties “easily could have included a provision in the contract requiring [CH2M Hill] to improve the bridge deck to include a Jersey barrier, but they did not. The appellate court therefore erred in holding that, based upon the standard of care clause [CH2M Hill's] contract, there was a question of fact whether [the engineering firm owed a duty to consider and design a Jersey barrier.” (Thompson v. Christie

- Pat Murphy

patrick.murphy@lawyersusaonline.com

CSI Yolo County: Juror’s broomstick experiment trashes trial

With every other TV show dramatizing crime scene investigation, is it any wonder that jurors are gleefully ignoring trial judges by conducting their own forensic experiments? 

That’s exactly what happened not too long ago in the Yolo County Superior Court in California. 

Kyle Vigil was on trial with Joshua Latham, each charged with two counts of shooting at an occupied dwelling. 

According to the state’s evidence, in the late night hours of June 21, 2007, Vigil drove Latham to a house on Donnelly Circle in Woodland. Latham exited the car and used a rifle to fire five or six shots at the house. 

Latham returned to the vehicle and Vigil drove to another house on Santoni Lane. As Vigil drove by the home, Latham rolled down the passenger-side window and fired another seven shots at that residence. 

The state’s theory was that these shootings were part of an ongoing conflict between the Sureños and Norteños street gangs. 

A jury convicted Latham in both shootings. 

However, the jury only found Vigil guilty in the Santoni Lane shooting.

Apparently, jurors concluded that Vigil was taken by surprise by Latham’s conduct on Donnelly Circle, but understood what Latham was about when he rolled down the passenger window, took out the rifle, and opened fire on Santoni Lane.

Vigil’s trial lawyer, Jeff Raven, asked Juror No. 2 about the discrepancy in the verdicts after trial.

According to Raven, Juror No. 2 responded by saying “Mr. Raven, do you know how difficult it is to raise a rifle out of the window from the passenger seat? You would have to maneuver like this, turn this way, move back a foot or two. It’s not easy. It takes time. And I know, I did it with a broomstick.”

Two other jurors confirmed that, during deliberations, Juror No. 2 made a point about how his broomstick experiment proved how difficult it was for Latham to get his rifle into position to fire out the passenger window.

Of course, Vigil thought he deserved a new trial based on Juror No. 2′s broomstick experiment.

The trial judge agreed that Juror No. 2 had engaged in misconduct by violating the standard jury instruction against outside experiments.

However, the trial judge concluded that a do over was not warranted because Juror No. 2′s experiment was a matter of “common experience” that didn’t color the jury’s deliberations in general, or the finding of Vigil’s guilt in the second shooting in particular.

Monday, the California Court of Appeal concluded that Juror No. 2′s broomstick experiment was egregious misconduct requiring a new trial for Vigil.

The court explained that the experiment “created new evidence outside the courtroom, contradicted an asserted defense and lightened the prosecution‘s burden of proof on a material issue — whether Vigil knew that Latham was going to commit a drive-by shooting at the Santoni Lane residence.”

The court noted that Juror No. 2 was a college professor and thereby enjoyed “enhanced stature” in the eyes of his fellow jurors.

“His reported experiment could well have struck a decisive blow in favor of conviction by causing one or more jurors to shortcut the deliberative process. This type of misconduct cannot be deemed harmless,” the court said. (California v. Vigil)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Is immigration status relevant in worker’s death?

What’s the proper measure of damages in a wrongful death case when the decedent was an illegal immigrant subject to deportation?

Should the ever-present risk of being kicked out of the country be considered in calculating future lost earnings? 

One Texas court decided last week that evidence of a garbage worker’s immigration status was properly excluded in determining how much his widow should be compensated in his work-related death. 

The decision came in a wrongful death lawsuit against Republic Waste Services. One of its employees, Oscar Alfredo Gomez, was killed when a garbage truck backed over him. 

Republic is a “non-subscriber” under the Texas workers’ compensation system, so the employer was open to a wrongful death lawsuit brought by Gomez’s widow, Elida Griselda Martinez. 

At trial, Republic wanted to introduce evidence that Gomez had entered the country illegally from El Salvador and had falsified immigration documents to gain employment with the company. 

Republic argued that Gomez’s illegal status was relevant to the issue of his future lost income. 

To further bolster its case, Republic wanted to establish that in all likelihood Gomez would have been deported because federal immigration authorities raided Republic’s facilities two weeks after Gomez’s death. 

Had he been sent back to El Salvador, Gomez would have been making only $1,000 a year instead of the $33,000 a year he was making with Republic. 

The trial court excluded this evidence and awarded Gomez’s widow $1.4 million. 

On Thursday, the Texas Court of Appeals affirmed the judgment. On the issue of Gomez’s immigration status, the court agreed with Republic that the evidence was certainly relevant. 

However, the court concluded that Republic’s evidence as to the likelihood of Gomez’s deportation was too speculative, rendering evidence of his immigration status unfairly prejudicial. 

The court explained that “[w]ithout a showing that a plaintiff will likely be deported in his working lifetime, the jury is invited to engage in conjecture and speculation regarding whether he will be deported, when he will be deported, and, if deported, whether he will return to the United States to work. …

“As a result, the probative value of evidence concerning a plaintiff’s illegal immigrant status is low, while the prejudicial effect of this evidence is high.” (Republic Waste Services v. Martinez

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Empty field labeled ‘attractive nuisance’

Perhaps property owners should just hand over their wallets. They might as well if they’re going to be liable for injuries suffered by every child trespasser who takes a tumble in an empty field. 

On Friday, the Rhode Island Supreme Court opened up the pockets of landowners by reviving the personal injury suit of a boy who was hurt playing football in a grass-covered vacant lot in Pawtucket. 

The field is owned by National Grid, a public utility. On the afternoon of Oct. 4, 2006, 12-year-old Austin Hill and his pals chose the site to play a game of touch football.

During play, Austin tripped over a concealed metal pole that protruded from the ground. The boy fell onto a second metal pole hidden in the grass, severely lacerating his thigh. The wound was so serious that Austin needed to be taken to the emergency room, where he was stitched up. 

Austin has permanent scars from the accident but, knowing kids, it’s a good bet that he uses his wounds to thrill and amaze his buddies. 

Austin’s parents, Harry and Rebecca Hill, aren’t so sanguine about what happened, however. Rather than chalking Austin’s injuries up to the normal bumps and bruises of life, the parents want to hold National Grid liable.

According to the parents’ lawsuit, the vacant lot is an “attractive nuisance.” A favorite of law students everywhere, the attractive nuisance doctrine imposes a duty of care on landowners to trespassing children under certain circumstance. 

Normally the doctrine applies to things like open mineshafts, not empty fields. Of course, National Grid’s vacant lot was not “empty” in the strictest sense, because there were those two protruding pipes hidden in the grass. 

But c’mon, what piece of ground in the inhabited portions of these United States doesn’t have some sort of defect caused by human activity? 

Surely, the Hills’ lawsuit didn’t stand a snowball’s chance in hell, right? 

Not so, premises liability breath. Last week, the Rhode Island Supremes reversed a summary judgment granted in favor of National Grid. 

The curious thing about the decision is that National Grid may find itself liable by virtue of the fact that it acted as a responsible property owner. 

The evidence showed that the company’s lot was in the midst of a residential area. Accordingly, the company adopted a policy for employees to call police when they observed trespassing children. 

From this evidence the court concluded that there existed “a genuine factual dispute about whether [National Grid] knew or had reason to know that children were likely to trespass on the lot.” 

To top it off, because National Grid sent maintenance crews to regularly cut the grass on the lot, the court said that “a reasonable jury could conclude that defendant knew or had reason to know of the metal stakes protruding from the ground.” (Hill v. National Grid

Responsible property ownership is turned on its head to support a trespasser’s personal injury claim. Flimsy reeds to impose liability, indeed.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Illegals may get damages from immigration scam

Call it chutzpah or simply a true indicator of the toothlessness of the nation’s immigration laws, but three Mexican nationals have sued a Chicago-area businessman for failing to come through on a promise to provide them with fraudulently obtained U.S. citizenship papers.

Before you laugh, you should know that one Illinois court has decided that their lawsuit should not have been dismissed out of hand.

The three plaintiffs in the case are Cesar Gamboa, Ruben Nava and Mauro Lopez. The men want to stay in the U.S. The only problem is that they’re not U.S. citizens and don’t have legal permanent residency status.

The plaintiffs alleged that a guy named Jose Alvarado offered to “fix” their problem with the assistance of his business, Marco’s Digital Photography in Berwyn, Illinois.

According to the plaintiffs, in early 2006 Alvarado told them he could obtain “authentic citizenship documents” through a contact at the U.S. Consulate office in Ciudad Juarez, Mexico. Alvarado allegedly claimed his contact could influence both American and Mexican immigration officials to expedite the application process.

Of course, to work the plan would require money from the plaintiffs. They claimed that Alvarado offered to arrange legal permanent residency status for $12,000 per person. For a mere $3,000 more, they could be U.S. citizens.

What a deal!

Agreeing to the scheme, the plaintiffs alleged that that they each made payments totaling $15,000 to Alvarado over a period of months, receiving receipts for their payments from Marco’s Digital Photography.

Sure enough, Alvarado never came through on his promises and refused to return the plaintiffs’ money.

Unconcerned with their roles in an illegal scheme, the plaintiffs sued Alvarado and Marco’s Digital Photography in Illinois court.

Cook County Circuit Judge William Maki wasted little time in dismissing the lawsuit on the ground that the plaintiffs were seeking to enforce an illegal contract.

But earlier this month, the Illinois Appellate Court for the First District decided that the plaintiffs had a viable claim.

The court acknowledged right off the bat that the plaintiffs’ contract with the defendants was illegal.

That fact, however, did not prevent the plaintiffs using the state’s consumer fraud statute to recover their payments on that illegal contract.

The court explained that the plaintiffs are “seeking to be reimbursed for the monies they paid defendants on the basis of the apparently fraudulent contract, costs they incurred as a result of the contract and assorted punitive damages including those provided for by section 2AA of the [Illinois] Consumer Fraud Act. …

“They do not, in any of these counts, seek enforcement of the agreement they had with defendants or assert a breach of contract claim. Illegality of contract, therefore, would not be a valid defense to plaintiffs’ claims.”

The court was unimpressed with the argument that allowing the plaintiffs’ lawsuit would be rewarding individuals who intended to circumvent the country’s immigration laws.

“On the contrary, allowing plaintiffs’ claims to proceed will send a message to those unscrupulous individuals who mislead and prey on others by promising them immigration services they cannot deliver that there are ramifications for this antisocial behavior,” the court said. “These individuals cannot be allowed to use the very illegality of their agreement as a way to avoid the consequences of their actions.” (Gamboa v. Alvarado)

That may be all well and good, but everyone involved has unclean hands.

The trial judge, Judge Maki, had it right: let the consequences of the parties’ allegedly illegal conduct fall where it may, and don’t allow the court to become complicit in the evasion of the nation’s immigration laws.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Fla. lawyer loses fight over ‘specialist’ snub

“When everyone is somebody, then no one’s anybody.”

With that light touch from Gilbert and Sullivan’s The Gondoliers, Judge Ed Carnes of the 11th Circuit set about telling one unhappy lawyer that she was going nowhere in her constitutional challenge to the Florida Bar’s certification process.

Carolyn S. Zisser is a successful family law attorney in Jacksonville, Florida. From 1985 through 2000, the Florida Bar certified Zisser as a marital and family law specialist.

In 2000, Zisser applied for recertification in her field, but the Florida Bar denied her application on the basis of unsatisfactory peer reviews. And despite her unquestioned competence and success as a family lawyer, the state bar has rebuffed her attempts to obtain certification ever since.

The problem Zisser apparently has is that she’s ruffled the feathers of too many colleagues in Florida, lawyers who are willing to show up and testify against Zisser when the state bar conducts confidential peer reviews of her application.

According to court records, some of her peers have accused Zisser of being discourteous and over-litigating cases.

A 2006 letter to Zisser from the committee reviewing her application states, “Many find your knowledge in the area of family law to be exceptional, but your professional judgment poor.”

Since the state bar’s confidential peer reviews are, well, confidential, Zisser has found herself in a bind in try to answer the disparaging claims of some of her fellow lawyers.

So after the Florida Supreme Court refused to review her petition in 2008, Zisser sued in federal court.

Zisser claims that the denial of her recertification solely on the basis of anonymous peer reviews violates due process because it denies her a meaningful opportunity to confront witnesses and challenge peer review findings.

The district court didn’t buy it and dismissed her case in March 2010.

Yesterday, the 11th Circuit wrote what could very well be the final chapter in Zisser’s fight against the Florida Bar.

Judge Carnes, writing for a unanimous court, concluded that Zisser had no constitutionally protected property or liberty interest at stake.

The judge noted that Zisser had signed a waiver when she applied for certification with the state bar. The waiver states that Zisser agrees to the confidentiality of the peer review process and waives the right to request “any information” regarding the process.

Carnes wrote that “the existence of that language reinforces the fact that certification is not an entitlement but instead is contingent on the result of the peer review process, and it reinforces the fact that the identity of the peers doing the reviewing will be kept confidential insofar as state law is concerned.”

Putting a final nail in the coffin of Zisser’s property claim is the fact that certification as a specialist in a particular area of the law is not required to practice in that or any other area of the law.

This fact also bore heavily on the court’s conclusion that the Florida Bar’s peer review process did not impair a constitutionally protected liberty interest.

Zisser argued that the denial of certification injured her reputation.

To this Carnes responded by observing that the “lack of certification in a field of specialty simply means that an attorney is, like the vast majority of attorneys, not certified in that field. The failure to convey a badge of distinction is not stigmatizing.” (Zisser v. Florida Bar

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Bedbug expert gets to testify after all

The exclusion of an expert in a bedbug infestation case may not be all that big a deal in the great scheme of things.

But the ruling has compelled one federal court of appeals to step in and explain that the submission of a written report is not always required for the admission of expert testimony under the Federal Rules of Civil Procedure.

“[A]s long as an expert was not retained or specially employed in connection with the litigation, and his opinion about causation is premised on personal knowledge and observations made in the course of treatment, no report is required under the terms of Rule 26(a)(2)(B),” wrote Judge Bruce M. Selya of the 1st Circuit.

That subtle but critical point was made in a lawsuit brought by Yvette Downey against Bob’s Discount Furniture.

Downey found her Randolph, Massachusetts, home infested by an army of bedbugs when she awoke on the morning of July 24, 2005. To her horror, Downey discovered that her daughter, Ashley, was covered by the pests.

Downey immediately called Allegiance Pest Control and to the rescue came Edward Gordinier, the company’s service manager. Gordinier is a licensed and experienced exterminator.

After inspecting the Downey residence, Gordinier concluded that the source of the bedbugs was a bed frame purchased from Bob’s Discount Furniture as part of a children’s bedroom set.

Bob’s Discounts had delivered the set on Dec. 29, 2004, and it was Gordinier’s opinion that the bedbugs were dormant in the bed frame at the time of delivery.

After determining the source of the problem, Gordinier got down to the business of extermination, treating the Downey home for bedbugs.

Naturally, Gordinier’s expert opinion was critical when Downey later sued Bob’s Discounts in federal court for negligence.

Downey alleged that Bob’s Discounts lacked a written policy to prevent bedbug infestation and that the problem was enhanced by the delivery of new furniture in trucks routinely used to transport used bedding from customers’ homes.

Downey thought she was all set for trial with Gordinier ready to testify as to his conclusions, but Bob’s Discounts objected because Downey had failed to submit a written expert’s report as required by Federal Rule of Civil Procedure 26(a)(2)(B).

The district court agreed that Gordinier’s testimony should be excluded under the rule and suddenly Downey was left without an expert.

Predictably, the district court granted Bob’s Discounts motion for judgment as a matter of law at the close of Downey’s case. The trial judge concluded that the plaintiff had not offered sufficient evidence to show either that “bedbugs existed in the furniture at the time it was delivered” or that the defendant “breached the relevant standard of care.”

Friday, the 1st Circuit decided that the district court had it all wrong.

Writing for the1st Circuit panel that heard Downey’s appeal, Judge Selya explained that Rule 26(a)(2)(B)’s general requirement that a party submit a written report beforehand pertains to a witness who is “retained or specially employed to provide expert testimony in the case or … whose duties as the party’s employee regularly involve giving expert testimony.”

Selya said that the rule’s written report requirement did not apply to Gordinier, Downey’s bedbug expert.

The judge first noted that Gordinier was not a professional witness who commonly charged fees for his testimony, nor was there any evidence that he was receiving a fee to testify from Downey.

Selya went on to explain that, in order to give the phrase “retained or specially employed” in Rule 26(a)(2)(B)’s any real meaning, “a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony.”

Selya concluded that Gordinier fell into the former category.

“Like a treating physician — and unlike a prototypical expert witness — Gordinier was not retained or specially employed for the purpose of offering expert opinion testimony. Rather, he was ‘an actor with regard to the occurrences from which the tapestry of the lawsuit was woven.’ …

“Put another way, his opinion testimony arises not from his enlistment as an expert but, rather, from his ground-level involvement in the events giving rise to the litigation. Thus, he falls outside the compass of Rule 26(a)(2)(B),” wrote Selya. (Downey v. Bob’s Discount Furniture

This is good news for Downey because she gets a new trial — this time with the help of Gordinier’s testimony.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Employee waives privilege by using company e-mail

Employment attorneys need to take a firm stance and stop their clients from using workplace e-mail to communicate sensitive information about a case.

Sure, some courts will find such e-mails protected by the attorney-client privilege, but others won’t, as one pregnancy discrimination plaintiff learned to her regret yesterday.

That unfortunate plaintiff is Gina Holmes. Holmes used to be employed by Petrovich Development, “Sacramento’s Largest Retail Developer.” 

In June 2004, Paul Petrovich, the president of the California company, hired Holmes as his executive assistant. A month after starting her new job, Holmes told Petrovich that she was pregnant and that her due date was December 7, 2004.

After the standard congratulations, the reality of a new hire taking maternity leave began to set in and Petrovich began to gripe about the situation.

Holmes became distraught when Petrovich made it plain that he was unhappy about having to find someone to fill in when she was having her baby. Holmes was particularly offended when Petrovich suggested that she hid her pregnancy when she interviewed for a job with the company.

As her relationship with Petrovich deteriorated, Holmes began thinking lawsuit and used the company computer to e-mail an attorney, Joanna Mendoza.

In an August 10, 2004, e-mail, Holmes told Mendoza that she was feeling like an “outcast.” Holmes explained in the e-mail that “I know that there are laws that protect pregnant women from being treated differently due to their pregnancy, and now that I am officially working in a hostile environment, I feel I need to find out what rights, if any, and what options I have. I don’t want to quit my job; but how do I make the situation better.”

Mendoza did the right thing, immediately cautioning Holmes that the company could claim a right to access her personal e-mails and instructing her to delete their attorney-client communications from her work computer.

But the damage had been done.

On August 11 — just two months after starting with Petrovich Development — Holmes quit her job. Shortly thereafter, she sued in California court for sexual harassment, hostile environment and constructive discharge.

Predictably, Holmes’ e-mails to her attorney became an issue at trial. Petrovich Development wanted the e-mails introduced to bolster its defense. Holmes claimed that the e-mails were privileged.

The trial judge sided with Petrovich Development based on a clearly communicated workplace policy prohibiting the use of company e-mail for personal matters and giving the employer the right to “inspect all files and messages … at any time.”

The e-mails were accordingly introduced as evidence and a jury returned a verdict in favor of Petrovich Development.

Thursday, the California Court of Appeal upheld that defense verdict, concluding that Holmes’ emails were not protected by the attorney-client privilege.

The court observed that “the e-mails sent [by Holmes] via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.” (Holmes v. Petrovich Development

Of course, the California Court of Appeal is not the first court to weigh in on this issue, nor will it be the last.

Just last October, the New Jersey Supreme Court decided that an employer couldn’t read an employee’s e-mails to her lawyer.

But the point here is that employees and their lawyers can avoid the risk of disclosure altogether by taking the precaution of ensuring that the employee communicate from a home computer or personal laptop through a personal e-mail account.

What could be simpler?

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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