Comments on Recent Cases: February 2024
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Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions.
Court Refuses to Quash Subpoena Since It Did Not Seek “Utterly Irrelevant” Information
Many people are surprised to discover how broad discovery is in American litigation. Few limits apply to the questions litigants can ask each other or third parties. And while one may object that a request seeks irrelevant information, courts are often reluctant to limit the scope of investigation.
For example, in a recent case before the state appeals court in Manhattan, a plaintiff issued a subpoena to a non-party, seeking information about whether the defendant solicited investments through memberships in the non-party’s club. The non-party claimed that information was irrelevant to the litigation, but the trial court required compliance with the subpoena anyway and the appeals court affirmed that decision. The court held that since the request was not “utterly irrelevant,” the subpoena should be enforced.
Decisions like this illustrate the standard by which courts evaluate relevance objections to discovery requests.
Privilege Protects Non-Lawyer Communications Made in Anticipation of Litigation
Communications between clients and lawyers are generally protected from use by opponents in litigation. But the privilege may also protect communications among non-lawyers in response to a question posed by counsel, even if those communications are disclosed in litigation. This is because a privilege that protects trial preparation materials may protect those communications.
For example, in the recent New York litigation between Smartmatic USA Corp. and Fox News, Smartmatic produced text messages sent between its executives. Those executives were discussing how to respond to an attorney’s question about what damages to seek. Fox News wanted to use the text messages as evidence that the damages were made up, but the appeals court held that the messages were protected from use because they were created in anticipation of litigation. That privilege was not absolute, however, since it did not apply to other messages about deleting the first set of messages.
Decisions like this illustrate the scope of protection afforded to non-lawyer communications.
Summary Judgment Denied in Lawsuit over Contaminated Salad
It is hard to win a case on summary judgment when there is some evidence on both sides. While cases that turn on contract language or the interpretation of law may provide discrete issues for a judge to decide, judges often consider debates over the facts to be an issue for trial.
For example, in a recent case before the state appeals court in Manhattan, a restaurant sought the dismissal of a claim by a patron that its salad contained bacteria that caused a serious infection. The restaurant submitted tests to show its spinach was clean and the fact that no other diners or employees reported issues.
But the appeals court affirmed the trial court’s decision that the restaurant’s evidence was probative, but not “dispositive,” and thus a trial was needed to weigh the evidence. This was true in light of the fact that the plaintiff submitted evidence, too, such as lab tests from the plaintiff’s doctor.
Cases like this illustrate the difficulty of winning a summary judgment motion.
Denial of Reconsideration Not Eligible for Appeal
Not every decision by a trial court can appealed. One example of such a decision is the decision by a trial court not to reconsider a previous decision. So, while a litigant in New York can appeal a decision and ask the court to reconsider it, the litigant cannot appeal the denial of the reconsideration. The original decision is the one shot the litigant may have at an appeal.
This issue arose in a recent case before the state appeals court in Manhattan. In that case, a law firm sued to collect legal fees. The trial court held that the defendants were “alter egos” of the original debtor and thus were liable for the fees. The defendants asked the court to reconsider that decision and the court denied the motion. The defendants asked the appeals court to review the decision, but since the specific decision the defendants asked them to review was the denial of reconsideration, the appeals court rejected the appeal with a brief written decision.
This decision illustrates the importance of appealing the appropriate decisions.