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.

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.” http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=465459

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  In an unpublished decision dated November 18, 2011, the Oklahoma Court of Civil Appeals held that it possessed appellate jurisdiction where the trial court order “included a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. 

Jim Milton joins Hall Estill as shareholder

http://www.tulsabusiness.com/main.asp?FromHome=1&TypeID=1&ArticleID=53801&SectionID=3&SubSectionID=50

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.