Thursday, December 27, 2012

Threatening emails not sufficient for victim protective order

Subjective fear or unease resulting from threatening or insulting emails is insufficient to support a victim protective order under the Oklahoma Protection from Domestic Abuse Act.

Tuesday, November 20, 2012

Summary judgment and 12 O.S. 2056

Below is a link to a decision of the Oklahoma Court of Civil Appeals, along with a link to yesterday’s order by the Oklahoma Supreme Court, giving the decision precedential effect under Oklahoma Supreme Court Rule 1.200.

The Court of Civil Appeals decision addresses the summary judgment standard.  Among other things, the Court of Civil Appeals states: “Title 12 O.S. 2056 (2011) governs the procedure for summary judgment.”  [para. 5.]

I have not previously seen any action by the Oklahoma Supreme Court that could be viewed as adopting the view that Section 2056 governs the summary judgment process.  There has been some speculation that Section 2056 is vulnerable based on the Oklahoma Supreme Court’s own jurisprudence on summary process, based on state constitutional law, adopting standards less favorable to summary judgment than the federal courts.

I might be the only one to focus on this narrow aspect of the decision.

Monday, October 29, 2012

UPDATED: Oklahoma Bar Association House of Delegates approves proosal to amend to Section 2502 of the Oklahoma Evidence Code

On Friday, November 16, 2012, the Oklahoma Bar Association House of Delegates approved a proposed amendment to Section 2502, adopting the federal Upjohn rule.  This proposal now becomes part of the OBA's legislative program for 2013.  This proposal must be approved by the legislature and signed by the Governor before it becomes law.

The proposal modifies Section 2502 to remove the control group aspect of Section 2502(A)(4) so that the attorney-client privilege in Oklahoma protects attorney communications with corporate employees in the same manner as those communications are protected under the Upjohn rule (and the rule in most other states).  The Upjohn rule is found in Upjohn v. United States, 449 U.S. 383 (1981).  There, the U.S. Supreme Court struck down the “control group test,” which would have protected only communications between attorneys and the officers and agents responsible for direction action in response to legal advice.  “Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”  Upjohn, 449 U.S. at 390.

Of course, in federal court, the rules governing privilege for the most part are contained in court decisions or are found through reference to state law.  See Fed. R. Evid. 501.  As a result, the best method of arriving at a proper amendment to the text of 12 O.S. 2502 was to examine the rules and statutes in other states.  At least as of 1997, fourteen states had adopted the Upjohn rule, while a majority of the states had not yet decided the issue.  Brian E. Hamilton, Conflict, Disparity, and Indecesion: The Unsettled Corporate Attorney-Client Privilege, 1997 Ann. Survey of Am. Law 629, 633-40 (1997).

In drafting the proposal, the OBA Civil Procedure & Evidence Code Committee looked to the Texas Rules of Evidence as an example.  Under the Texas Rules of Evidence, “representative of the client” is defined as “(i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.”  Tex. R. Evid. 503(a)(2).

In addition to specific states, the Bar can look to the National Conference of Commissioners on Uniform State Laws (“NCCUSL”).  In 1986, the NCCUSL modified Rule 502 of the Model Rules of Evidence (1974), to adopt the Upjohn test.  This revision survived and is included in Rule 502 of the Model Rules of Evidence (1999).

The proposal before the Bar follows the text of both the Texas rule and the 1986 amendment to Rule 502 of the Model Rules of Evidence (1974).

Friday, June 8, 2012

Work product protection extended to communications with testifying experts

Effective November 1, 2012, Oklahoma's work-product protection will extend to certain communications with testifying experts.  Following the 2010 revision to Fed. R. Civ. P. 26(b)(4), Section 3226(B)(4) is amended to extend work-product protection to communications between counsel and testifying experts except (1) communications regarding the expert's compensation, (2) facts or data provided to the expert, and (3) assumptions provided to the expert.  With this amendment, lawyers going to trial in state court may engage in communications with their testifying experts with a lower risk of discoverability of those communications.

This amendment appears in SB941, signed by Gov. Fallin on April 2, 2012.

Tuesday, April 24, 2012

Another juror misconduct decision from the Oklahoma Supreme Court

“[J]uror's affidavit demonstrating the injection into the deliberative process of extraneous prejudicial information was admissible under the "extraneous prejudicial information" exception to 12 O.S. 2011 §2606(B). Furthermore, counsel were entitled to rely on the foreperson's guarantee to the trial court that she would not allow her professional expertise to override the testimony presented. Because there is evidence to the contrary, we hold that there was no abuse of discretion in ordering a new trial for juror misconduct during deliberations.”

Monday, April 16, 2012

Thirty-day appeal time runs from date of actual notice where court file contains no proof of compliance with the three-day mailing rule

On April 16, 2012, the Oklahoma Supreme Court reinstated an appeal where the record showed that the appeal was initiated within 30 days of actual notice of the appealed-from order.  Whitehall Homeowners Association, Inc. v. Appletree Enter., Inc., 2012 OK 34.  The appellee moved to dismiss on the basis that the appeal was filed more than 30 days after the order was mailed to the appellant.  But the date of mailing was not supported by proper documents in the record (no certificate of mailing in the trial court record; no affidavit supporting factual statement in motion filed in appeal).

This decision raises an interesting potential conflict in the case law, or at least a potential divergence of views – or maybe just an anomaly.  In an unpublished decision dated November 18, 2011, the Oklahoma Court of Civil Appeals held that it possessed appellate jurisdiction where the trial court order “included a ‘cc:’ notation followed by the attorneys’ names, but did not include the certificate of mailing required by 12 O.S. 696.2(B) and 12 O.S. 696.3(D) (2007) showing a file-stamped copy was served upon the parties.”  Staudt v. City of Okmulgee, unpublished, dated November 18, 2011.

In Whitehall, the appellee could have submitted an affidavit with its motion to dismiss, or even filed a belated certificate of mailing and sought to include the certificate of mailing in the appellate record.  But without sufficient certification, the appellee’s unsupported allegation regarding mailing was disregarded.  With the appellant’s unrefuted allegation regarding actual notice, the Supreme Court determined that the petition in error was filed within 30 days of actual notice.

In Staudt, the delay was longer – order filed on March 30, 2011; post-trial motion filed on May 18, 2011.  There, the appellee could have asked the trial court to provide a belated certificate of mailing, or engaged in discovery in order to ascertain the date of actual notice.  The “actual notice” doctrine does not appear in the Staudt opinion, so presumably it was not raised as a basis to dismiss the appeal.

These decisions, taken together, underscore the need to prepare and file affidavits of mailing when dealing with appealable (or potentially appealable) state trial-court orders. 

Wednesday, March 7, 2012

Two interesting cases on juror bias and standard of review on appeal

In Fields v. Saunders, 2012 OK 17, the Oklahoma Supreme Court held that new trial is required where juror voluntarily revealed, after verdicts returned, that the juror entertained disqualifying bias against one party’s race and right to recover, and where juror deliberately concealed such bias on voir dire in order to participate in rendering verdicts consistent with such bias.  The Supreme Court also held that the de novo review applies when reviewing trial court’s decision on motion for new trial where the underlying issue is juror bias, which is an issue of constitutional dimension, implicating the right to fair trial.  Finally, the Supreme Court cautioned that the decision is not be to be used to manufacture a ground for new trial.

One day earlier, the Oklahoma Supreme Court announced its decision in James v. Tyson Foods, Inc., 2012 OK 21.  There, the Supreme Court held on somewhat different facts that the de novo standard of review applies where trial judge ruling on motion for new trial did not preside at trial.  The James case also dealt with juror conduct.  There, the Supreme Court held that new trial required where incomplete or misleading answers were provided by prospective jurors on jury questionnaire, and where trial court prohibited trial counsel from asking jurors any questions covered in questionnaire.