Category: Discovery

Louisiana Appeal Courts Prohibit Direct Negligence Claims Against Employer; US District Court Uses Rule to Limit Discovery

09.25.2020

The 1st Circuit Court of Appeal recently ruled that a Plaintiff is prohibited from maintaining a direct negligence claim (negligent hire, negligent supervision, etc.) against an employer when the defendant/employer admits the employee was in the course and scope of the employment, stating:

“(A) plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer had admitted that the employee was in the course and scope of employment at the time of the alleged conduct.” See Elee v. White, – – So. 3d – – (La. App. 1 Cir 7/24/20) 2020 WL 4251974.

The ruling in Elee  joins the Louisiana 5th Circuit court of appeal which entered a similar ruling. See Landry v. National Union Fire Insurance Company of Pittsburg, 289 So.3d 177 (La. App. 5 Cir. 12/30/19).

Meanwhile, the federal courts in Louisiana, under the Erie doctrine, reached differing results. In Thomas v. Chambers, 2019 WL 1670745 (E.D. La. 2019)(Vance, J.) and Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016 (Hicks, J.), the District Courts acknowledged the holding outlined above. However, Judge Cain, sitting in the Lake Charles division of the Western District ruled to the contrary. See Roe v. Safety National, 18-cv-1353 (W.D. La. 2020).

But, what happens when the defendants further admit sole fault for the accident? The result was discussed in Ferguson v. Lenoir et al. Notably, Magistrate Judge Hornsby, ruling on defendants’ request for a protective order, found that defendants admission of fault eliminated the need to reconcile the different rulings when it found that “(no) evidence of (employer’s) negligent hiring, training, supervision or entrustment can raise (employer’s) percentage of fault above 100.” See Case 5:17-cv-01570-SMH-MLH Document 90 Filed 06/30/20 (p 2 of 6). As a natural consequence of this rule, the court recognized that a protective order limiting further discovery was appropriate. Plaintiff appealed the magistrate’s Order, but US District Judge Hicks denied Plaintiff’s appeal and affirmed Judge Hornsby’s ruling. Case 5:17-cv-01570-SMH-MLH Document 122 Filed 09/22/20.

John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.

You’ve Been Served – Now What? Understanding “Louisiana’s Pre-trial Procedure”

08.29.2017

A deputy arrives at your home or office and announces that you have been served. You quickly realize you have been named as a defendant in a lawsuit. Now what?

Whether the suit involves a breach of contract, an automobile accident, or the one and a million other circumstances that can lead to a suit being filed, the process is essentially the same in Louisiana state courts. This blog provides a general roadmap of Louisiana’s “pre-trial” procedure, which applies in most situations. Different procedures are involved with workers’ compensation claims, administrative proceedings, medical malpractice claims, and other areas.

Petition/Answer – When a person or company believes they have been damaged by fault, breach, or neglect, Louisiana law provides that the person allegedly wronged, the plaintiff, may file a Petition for Damages.  Louisiana does not have a “loser pays” system. For this reason, there is little disincentive to a plaintiff who wants to sue. Once the Petition is filed with the Clerk of Court, the Sheriff serves the defendant with a certified copy of the Petition and the “Citation.”

A defendant has fifteen days to file an Answer or to secure an extension from either the plaintiff attorney or the Judge, by filing a Motion for Extension of Time to File Responsive Pleadings. A failure to respond to a suit or obtain an extension within 15 days of service may result in a default judgment.

Trial by Judge or Jury -The parties advise if they desire a judge or jury trial in the initial filings. There is no right to a jury in cases which do not have a possible value of more than $50,000. If a plaintiff “stipulates” that case value is at or below $50,000, the defendant has no right to demand a jury trial under Louisiana Code of Civil Procedure article 1732.

Exceptions – Defendants have the right to raise “exceptions” to the suit. Common exceptions include a claim that the suit is vague; is filed in the wrong venue (i.e., the wrong location); or is untimely, and therefore “prescribed.” Defendants can use the exception process to challenge the plaintiff’s legal ability to recover. Many exceptions are waived if they are not filed before or with the Answer.

Discovery

  • Written – After the Answer is filed, the discovery process typically begins. Discovery is an information-gathering process done through different methods.  The parties to a lawsuit may issue written Interrogatories, Requests for Admission, and Requests for Production of Documents.
  • Depositions – Depositions are a key component of discovery. A deposition allows the attorneys (or the parties themselves, if unrepresented) to ask questions of witnesses before a court reporter. The testimony is taken under oath and can be used later for certain purposes. For example, if the witness is not available to testify at trial, the deposition testimony can often be introduced in lieu of live testimony. Also, if a witness changes his testimony at trial, the deposition can be used to attack the testimony and credibility of the witness.

Case Deadlines – Typically, the court will establish a scheduling order to establish key dates such as deadlines to identify witnesses, exhibits, and any experts who may testify on behalf of the parties. The court often sets a deadline to file “dispositive” motions, such as motions for summary judgment where the plaintiff or the defendant tries to have the case determined before the trial.

Alternative Dispute Resolution – Frequently, the parties agree to attempt to mediate the case with the assistance of a mediator.  This is a voluntary process. In some cases, the parties will be bound by an agreement to arbitrate which will be conducted outside of the normal court process.

There is no law or statute which sets the time frame for the “pre-trial” process. Depending upon the complexity of the suit, the pre-trial phase of a suit may take months, and often years.

When “Drone” Used to be a Boring Word

03.13.2017

Webster’s top two definitions of the word “drone” are as follows:

1: A stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen.

2: one that lives on the labors of others: parasite

While bees and parasites have their allure, Webster’s third definition of the word “drone” is the one with current intrigue.

According to Webster’s, a drone is also “an unmanned aircraft or ship guided by remote control or onboard computers.” Drones began as play things; but are now poised to revolutionize industry, retail, agriculture, journalism, art, and law at an ever-increasing pace.

Currently, drones are regulated by the Federal Aviation Administration which has for decades regulated flight by planes and helicopters; but not everyone can own an airplane or helicopter. Everyone can own a drone and many soon will.

The soon-to-be pervasive use of drones will stretch at the fabric of criminal and civil law and raises intriguing questions with hazy answers.  For example,

1: Without probable case, can the government park a drone over a house or building, or even a crime-ridden city block, and monitor for criminal activity with sensors that easily peer through walls?

2: Does one have a reasonable expectation of privacy within a fenced-in back yard?

3: Is following a personal injury plaintiff via drone considered stalking?

4: Can a business fly a drone over a competitor’s work yard to observe it processes without recourse?

5: Is it legal to use technology (which is now available) to disrupt or even crash drones flying overhead? Would that be a tort?

In an upcoming Keogh Cox blog, we will advise of pending changes to the law that may begin to answer some of these questions. For now, we will observe that the word “drone” is no longer a boring word.

Discovery in a Digital World

04.18.2016

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