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LCJ Briefs Address Expert Evidence Admissibility, Spoliation, and Privilege Waiver

LCJ’s amicus program, which employs LCJ’s deep experience and unique perspective to support sensible judicial interpretations of civil rules, tackled important litigation issues in three new briefs authored by preeminent experts this month.

LCJ Urges Federal Circuit to Reconsider FRE 702 Admissibility

LCJ’s new amicus brief on the application of FRE 702, filed with the US Court of Appeals for the Federal Circuit in Barry v. DePuy Synthes Companies, supports the defendants-appellees’ petition for en banc rehearing. The brief argues that the Circuit panel’s majority applied an incorrect legal standard when it reversed a district court’s exclusion of the plaintiff’s expert witnesses. 

The panel majority disregarded the explicit admissibility requirements of Rule 702(b) and 702(d) and erred in overturning the district court based on archaic caselaw that has been displaced by amended Rule 702. The opinion repeatedly states, incorrectly, that the weight and credibility of the experts’ opinions should be evaluated by the jury as finder or fact. For example, the panel majority said that “DePuy’s challenges, and the purported flaws the district court found in [a proposed expert’s] survey and methodology, go to the weight the jury might accord to that evidence and not to its admissibility.” Rule 702 was amended to correct gatekeeping errors like the one made in this decision. 

Matthias Kamber, author of LCJ’s brief, is a premier IP litigator with Paul Hastings LLP, based in San Francisco. Click here to read the amicus brief.

LCJ Opposes New State Tort for Intentional Spoliation of Evidence

LCJ opposes the creation of a new tort for intentional first-party spoliation in an amicus brief filed with the Tennessee Supreme Court in Industrial Boiler & Mechanical Co., Inc. v. Evatt, on April 13th. The brief argues that Tennessee law already provides a predictable, proportionate framework – a rule of civil procedure – to address spoliation. The creation of a new tort by the Tennessee Supreme Court would run contrary to the vast majority of states that have considered the issue. 

LCJ members – like all litigants and practitioners – rely on predictable, uniform standards when making decisions regarding appropriate preservation efforts. The Tennessee Supreme Court’s recognition of a new tort would unnecessarily create unpredictability and increase the costs associated with litigating and doing business in the state.

The amicus brief authors, Jonathan Redgrave and Kevin Reiss, with Redgrave LLP, are experts on discovery issues. Jonathan is a preeminent eDiscovery and information law attorney. Kevin specializes in complex litigation and investigation discovery matters in government investigations and state and federal litigation. Nick Snavely and Casey Fronk, also with Redgrave, participated in the preparation of the brief. William Harbison, with Sherrard, Roe, Voigt, and Harbison, in Nashville, served as local counsel. The brief is on the LCJ website document directory and here.

LCJ asks Ninth Circuit to Correct District Court’s FRE 502(d) Waiver Order

LCJ’s newest amicus brief addresses Federal Rule of Evidence 502(d), which permits a federal court to enter an order that “the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” The rule is unconditional on its face. It contains no inadvertence requirement, no cross-reference to Rule 502(b), and no textual limit on the orders it authorizes. The Advisory Committee on Evidence Rules was more explicit: a Rule 502(d) order may provide for return of privileged documents “irrespective of the care taken by the disclosing party.”

The U.S. District Court for the Northern District of California entered a textbook Rule 502(d) order but then declined to apply it. Uber produced 1.7 million documents in reliance on the court’s order, stating in the cover letter accompanying each production that the production was “not intended to, and [did] not, waive any applicable privilege.” The district court nevertheless ruled that Uber had waived privilege over documents produced following a court-ordered re-review, and it did so sua sponte, at a status conference, with no briefing. 

The LCJ amicus brief by Todd Presnell (Bradley Arant Boult Cummings LLP), filed on April 21st with the U.S. Court of Appeals for the 9th Circuit, supports a mandamus petition in Uber Technologies, Inc., Rasier-CA, LLC v. U.S. District Court for the Northern District of California. The brief urges the court to hold that Rule 502(d) orders must be enforced according to their plain terms, that district courts may not impose extra-textual limits of any kind—whether drafting preconditions, implied prerequisites, or case-management overrides—and that case-management concerns supply no exception to the protection Congress enacted.  

Todd Presnell is an accomplished trial and appellate litigator and widely respected expert on the privilege. He is the lead author of “Privileges and Protections: Tennessee and Sixth Circuit Law” and authors the popular blog Presnell on Privileges. LCJ’s amicus brief is available on the LCJ website document directory and here.