Tag: FRCP 26

Discovery Screw-Up Not Enough To Sustain Negligence Claim – 7th Cir.

Nixing an $8M Federal jury verdict, the Seventh Circuit recently held, among other things, that a discovery rule violation cannot undergird a negligent misrepresentation claim.

The plaintiffs in Turubchuk v. Southern Illinois Asphalt Company, 958 F.3d 541 (7thCir. 2020), twice sued a joint venture consisting of two paving contractors for personal injuries sustained in a 2005 traffic accident.  The first lawsuit, sounding in negligence, settled for $1MM, the amount plaintiff believed was the maximum available insurance coverage based on the defendant’s for the JV defendant’s attorneys’ pretrial discovery disclosures.

When the plaintiffs learned that the $1MM coverage cap only applied to the joint venture entity and not to the venture’s component companies, they sued again.  This second suit alleged fraud and negligent misrepresentation – that the defendant’s counsel misrepresented its insurance coverage limits.  Plaintiffs eventually went to trial only on their negligent misrepresentation claim.

This second suit culminated in the jury’s $8MM-plus verdict.  Defendant appealed citing a slew of trial court errors.

Reversing, the Court first considered the effect of Defendant’s erroneous Rule 26 disclosure.   Under Illinois law, an actionable negligent misrepresentation claim requires proof of a legal duty on the person making the challenged statement to convey accurate information.

The Plaintiffs alleged the Defendant’s duty was found in the disclosure requirements of Rule 26 – the Federal rule governing pre-trial witness and document disclosures.  The Court found no case authority that grounded a negligence duty in a federal procedural rule.  Instead, the Court noted, cases from the 9thCircuit and 7thCircuit held just the opposite and further opined that discovery rules are “self-policing:” a discovery violation subjects the violator to sanctions under Rules 26 and 37.

The 7thCircuit also ruled that the District Court erred in finding as a matter of law (on pretrial summary judgment and in-limine orders) that defendant breached its duty to plaintiffs and that plaintiffs justifiably relied on the representations.

Whether a defendant breaches a legal duty and whether a plaintiff reasonably relies on a representation are natural fact questions. Here, on the existence of a legal duty prong, there were a plethora of unanswered questions – i.e. what information did the attorney have at his disposal when plaintiff made a $1MM policy limits (or so he thought) demand before discovery even started? – that raised possible disputed fact questions that are normally jury questions.  The District Court’s pre-trial ruling on these issues hamstrung the defendant’s efforts to challenge whether defendant’s counsel acted negligently. [15]

Another trial court error stemmed from the non-reliance clause contained in the written release that settled the Plaintiffs’ first negligence lawsuit.  A non-reliance clause will normally foreclose a future fraud suit since reliance is one of the salient fraud elements.

That said, Illinois case law is in flux as to whether a non-reliance clause precludes a later fraud action.

In addition, whether reliance is justified in a given fact setting is quintessentially a triable fact question involving what a statement recipient knew or could have learned through the exercise of ordinary prudence.  This case authority uncertainty coupled with the multiple fact issues endemic to the justifiable reliance inquiry made it improper for the District judge to make a per se, pre-trial finding that plaintiffs justifiably relied on the defendant’s counsel’s insurance coverage disclosure.

The evidence was also conflicting on whether the defendant entities even had a joint venture.  Whether or not defendants were a joint venture was integral to the amount of insurance available to settle Plaintiffs’ claims and so it impacted the causation and damages elements of plaintiffs’ negligent misrepresentation case.

A hallmark of a joint venture is joint ownership or control of a business enterprise. See http://paulporvaznik.com/joint-ventures-in-illinois-features-and-effects/6699. This created disputed fact questions that should have been decided by the jury.

Next, the Court overturned the jury’s finding that Plaintiffs’ established that Defendant’s attorney intended to induce Plaintiffs’ reliance on the amount of available insurance coverage. [The intent to induce reliance element was the only negligent misrepresentation element that went to the jury.]

Federal Rule of Evidence 602 requires a witness to testify based on personal knowledge.

However, there was no such testimony adduced at trial. Instead, the only trial evidence on this negligent misrepresentation element was  Plaintiffs’ counsel’s self-serving speculative testimony that defendant’s counsel misrepresented the available insurance coverage to induce Plaintiffs’ to accept a relatively paltry $1MM to settle the case. [21, n. 11]. Moreover, the District Court improperly excluded evidence of Plaintiff’s counsel’s credibility since he had previously surrendered his law license in lieu of disbarment for alleged acts of dishonesty, fraud or misrepresentation. See FRE 608.

In the end, the Court found there was insufficient evidence at trial for the jury to find that Defendant’s counsel intended to induce Plaintiffs’ reliance on the Rule 26 discovery disclosures of insurance coverage.

Afterwords:

A negligent misrepresentation claim cannot be premised on violation of a Federal discovery rule;

The court invades province of the jury when it rules on elements that are inherently fact-driven;

Evidence Rules 602 and 608 respectively limit a trial witness to testifying to matters of personal knowledge and allow an opponent to probe that witness’s credibility by delving into his/her reputation for truthfulness.

 

 

 

Multi-Year Request for Facebook Activity Too Broad – Illinois Federal Court

Ye v. Veissman (1:14-cv-01531)(Memorandum Opinion and Order) examines the scope of Facebook page discovery requests in the context of a wrongful death suit.

There, the plaintiff, whose daughter was killed in a freak traffic accident as she walked on a downtown Chicago street, sued the responsible trucking company and driver for wrongful death and tried to recover for mental anguish resulting from the accident. 

To probe the depths of the plaintiff’s claimed mental malaise, the defendants sought discovery of the decedent’s Facebook communications going back seven years before the accident.  The plaintiff refused on the grounds of relevance and overbreadth (“it’s a fishing expedition”) and the defendants moved to compel the material.

Denying the defendants’ motion, the Court answered important questions on when social media evidence is relevant to a mental distress claim and the case starkly illustrates the importance of narrowly tailoring discovery requests in this computer-drenched society.

The Federal Discovery Rules and Facebook Data

Federal Rule of Civil Procedure 26(b)(1) allows discovery into any nonprivileged matter relevant to a party’s claim or defense that is proportional to the needs of the case.

Facebook discovery requests can present thorny logistical challenges since  the amount of discoverable information is voluminous, data is retained for a long time and the number of people with whom a given Facebook subscriber communicates is potentially limitless.

In spite of these difficulties, social media evidence is still discoverable so long as the requested information meets the test of relevance.  The Illinois and Federal rules of evidence define relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  See Illinois Evidence Rule 401.

The Ye court noted that while “everything posted on social media can reflect a person’s emotional state of mind” at any given snapshot of time, a plaintiff’s injection of his state of mind does not give a requesting party with a “generalized right to rummage at will through [social media] information.”

Seven Years of Facebook Data = Too Broad

Finding the defendants’ discovery requests too broad, the Court noted that the amended discovery rules, effective since December 2015, limit the scope of relevant evidence and required that discovery be proportional to the needs of a given case.

The court allowed that since plaintiff’s damage claims were nebulous by nature – they included mental suffering, grief, sorrow, loss of society, companionship, and consortium – some social media discovery was clearly permitted (and relevant).  This was because the discovery requests sought to shed light on the plaintiff’s mental state and his damages claims.

The court found that “[c]ertainly some social media content during the time period prior to death will be relevant”, this didn’t give the defendants a green light to request unlimited Facebook information.  The court found the seven-year request overbroad as it wasn’t confined to a narrower pre-accident time span.

The extensive request for Facebook data also exceeded relevance restrictions since defendants sought communications between the decedent and third parties who had nothing to do with the accident or the lawsuit.  According to the court, if the discovery requests were pruned to only include communications between the decedent and her immediate family, the requests would likely be focused enough to meet the discovery rules’ relevance and proportionality tests.

However, as the requests currently stood, the minimal relevance of the decedent’s Facebook communications was outweighed by the burden to the plaintiff in producing the data.

To support its findings, the Court cited liberally from recent Federal cases in Indiana and California that found Facebook discovery requests spanning five years (the Indiana case) and seven years (Cal.) too broad under Rule 26.

Afterwords:

This opinion is a good example of a court grappling with the discoverability of social media evidence in a case where a plaintiff’s mental state is clearly at issue.  Like so often, the discovery decision distills to a balancing test: the Court weighs the possible relevance of the requested information against the time, money and energy burden to the plaintiff in producing the information.

While some latitude is allowed in discovery requests, it’s clear from this case and others like it, that discovery requests have limits.  Where the burden of responding to Facebook discovery outweighs the possible relevance of the requests, a court will order the requesting party to constrict its requests.