By Glenn Melchinger
Take it from Second Circuit Court Judge Peter Cahill. There are two things you can count on in discovery: The producing party thinks they produced too much, and the receiving party thinks they asked for too little. This can result in leaving it to the bench to determine if someone’s hiding the ball, or if someone else is being greedy. Electronic data adds yet another layer of complexity about which attorneys must be prepared to educate the judge; don’t assume these are things he or she already knows. And, it is your case—discussion that tackles the issues and details head-on can often help resolve them without the Court’s help. Those were among the insights offered at “E-Discovery 2.0?,” which I presented with the Honorable Judge Peter Cahill at the annual Hawaii Paralegal Association Education Conference on October 30, 2013.
Of course, all the e-discovery and document review in the world won’t make a difference if the document does not get into evidence. On the admissibility of electronic evidence, take a look at Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007). It is a detailed, thoughtful discussion of authentication issues that arose on a FRCP 56 motion. It’s a useful reference – a “tour de force,” in Judge Cahill’s opinion.
E.R.K. v. State of Hawai’i Department of Education
By Paul Alston
The federal Individuals with Disabilities Education Act (IDEA) protects the rights of disabled individuals to equal access to public education, but until recently, those rights were being violated by the State of Hawai`i Department of Education (DOE). A class action lawsuit was brought on behalf of all special education students in the DOE between the ages of 20-22 whose eligibility for public education was being terminated at age 20 while non-disabled students could participate in the DOE Community Schools for Adults public education program with no upper age limit.
On August 29, 2013, the Ninth Circuit ruled that the State of Hawai’i was violating the IDEA. See E.R.K. v. State of Hawai’i Department of Education
Chandler v. Washington Mutual Bank et al., Civ. No. 10-00487 ACK-KSC
By Daylin-Rose Gibson and Blaine Rogers
In Chandler v. Washington Mutual Bank et al., Civ. No. 10-00487 ACK-KSC (D. Haw. June 12, 2013), Senior U.S. District Court Judge Alan Kay determined that the amount that a borrower must pay to rescind his or her loan under Hawai`i’s Unfair and Deceptive Acts and Practice (UDAP) law is equal to the tender amount required under the federal Truth-in-Lending-Act (TILA). This ruling clarifies one of the last remaining areas of uncertainty in the mortgage-related litigation that arose following the collapse of the housing market.
By Kevin White and Miriah Holden
On July 11, 2013, the Collection Law Section of the Hawaii State Bar Association hosted the 2013 Hawai`i Foreclosure Law Update with Fifth Circuit Judge Kathleen Watanabe, Second Circuit Judge Peter Cahill, and First Circuit Judge Bert Ayabe as featured speakers. A benefit of attending such sessions is learning firsthand some tips for a successful appearance before the judges on the speakers’ panel.
Judge Watanabe cautioned attorneys not to come unprepared. In particular, it is not enough for lender’s counsel merely to state that he or she “stands on the pleadings.” All attorneys must come prepared to argue and state their position even if it is uncontested. If uncontested, Judge Watanabe recommends that counsel point out that there is no opposition, there are no genuine issues of fact, and therefore, the motion should be granted.
Hawai`i’s newest federal judge talks shop
By Kevin White and Louise Ing
On June 20, 2013, the Hawai`i Chapter of the Federal Bar Association hosted a brownbag “talk story” with newly minted U.S. District Court Judge Derrick Kahala Watson. The overflow crowd enjoyed a frank, hour-long discussion moderated by Alston Hunt Floyd & Ing President and FBA-Hawai`i Chapter President Paul Alston and class action litigator and William S. Richardson School of Law lecturer Sherry Broder. Continue reading
When to use it, and when to first pick up the phone
By Donna Marron and Anderson Meyer
On May 15, 2013, Federal Magistrate Judges Chang, Kurren, and Puglisi graciously shared their lunch hour with the Federal Bar Association – Hawai`i Chapter for a brown bag seminar on Local Rule 37.1. The rule sets forth an expedited mechanism for resolution of discovery disputes by inviting the disputants to submit simultaneous letter briefs not to exceed five pages, including exhibits.
The judges recommended use of L.R. 37.1 instead of a motion to compel discovery in most if not all discovery disputes. They observed that discovery disputes more suited to a motion to compel than the L.R. 37.1 proceeding tend to address issues such as privilege or confidentiality that may require consideration of case-specific details or in camera review of disputed materials. The judges like the forced brevity of letter briefs under L.R. 37.1. The strict five-page limit forces lawyers to dispense with posturing and get to the point, although sometimes it also leads to creative measures (i.e., the case of the shrinking point size).
U.S. District Court eases evidentiary burden to establish federal contractor failure-to-warn defense
By Michelle Comeau and Morgan Early
A recent decision involving asbestos in Navy equipment at Pearl Harbor has arguably lowered the bar for what constitutes a government discretionary act for purposes of the government contractor defense in failure-to-warn cases. If affirmed on appeal, this decision will open the doors to federal court a little wider for would-be proponents of the defense.
In Leite v. Crane Company, 868 F.Supp.2d 1023 (D. Haw. 2012), a machinist who worked at Pearl Harbor sued several suppliers of Navy equipment for negligence and strict liability for their failure to warn of the dangers of asbestos. Plaintiffs filed the suit in state court, and Defendant contractors immediately removed the case to federal court, where they sought to establish a “colorable federal defense.” Continue reading
Medical and legal protocols are in place in Hawai`i, including Advance Health Care Directives, to address end-of-life decision-making
By William S. Hunt with input from Professor James Pietsch
“Give Me Liberty…or At Least Give Me a Good Death.” That was the title of a presentation by Professor George Smith, a recognized bioethicist from the Catholic University of America, Columbus School of Law, and featured speaker at a panel discussion on end-of-life decision-making held in Honolulu on April 9. Hosted by the University of Hawai`i Elder Law Program at the William S. Richardson School of Law, the panel included University of Hawai`i Elder Law (UHELP) Program Director Prof. James Pietsch (moderator) and Alston Hunt Floyd & Ing Stockholder/Director William S. Hunt, along with Dr. Daniel Fischberg of the Queen’s Medical Center, and attorney Scott Makuakane of Est8Planning Counsel LLLC. Continue reading
Get to the point, line up the facts, and know when to pivot
By Louise Ing and Jessica Arthur
Be organized. Be clear. Be concise. The basics of good communication are also the keys to “Effective Motions Practice,” the topic of a panel discussion hosted by the Hawai`i Chapter of the Federal Bar Association on March 21, 2013. Federal District Judge J. Michael Seabright and Federal Magistrate Judge Barry Kurren discussed the need for clarity in both written and oral arguments, but emphasized the importance of the written papers in helping the judge form an initial opinion about the case coming into oral argument. “Reference the factual basis for critical issues,” said Judge Kurren. “We’re just like you – we want to have a game plan when we walk into court, too.”
Marisco, Ltd. v. American Samoa Government: American Samoa bank account deemed within the jurisdiction of U.S. courts
By Melissa M. Uhl
In 2012, Bank of Hawaii found itself caught in a legal tug of war between the federal district court in Hawai`i and a court in American Samoa. The issue? Whether a Hawai`i court can order a Hawai`i bank to freeze an account in the bank’s American Samoa branch.
Between July 2008 and March 2010, Marisco repaired two barges and one tugboat belonging to the American Samoa Government (“ASG”), but never got paid. Marisco sued the ASG in the United States District Court for the District of Hawai`i. The parties entered into binding arbitration, resulting in an $811,631.87 (plus post-judgment interest) award to Marisco.