On March 11, 2011 the House Committee on the Judiciary, through the Subcommittee on the Constitution, held a hearing on H.R. 966, the Lawsuit Abuse Reduction Act (LARA). The Subcommittee Chairman, Rep. Trent Franks (R - AZ), argued in favor of LARA. He noted that the key provision of LARA is a change to Fed.R.Civ.P. 11 that makes sanctions mandatory when a court finds a litigant has violated the rule. As well, LARA eliminates the 21-day safe harbor provisions in the current rule. LARA does not change the standards used to determine if a litigant has violated Rule 11. Rep. Franks characterized this bill as a means to save jobs by helping small business avoid frivolous law suits.
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In a 2010 decision the Kentucky Supreme Court held that as a matter of comity among Kentucky trial courts, only the court that issued a judgment may enter a CR 62 stay of execution as to the judgment. In Fox Trot Properties, LLC v. Wright, 314 S.W.3d 286 (Ky. 2010), the Court noted that orderly procedure and proper respect for other courts require that a post-judgment motion seeking relief from a judgment be filed with the court that rendered it. The Court also observed it would be unseemly for trial courts in one venue to enter orders affecting valid and enforceable judgments entered by a trial court in another venue. The logic of the Fox Trot holding is unassailable, as the same principle would obviously apply to all the other types of available post-judgment motions, including a motion for JNOV (CR 50.02), a motion to amend a judgment (CR 52.02), a motion to alter, amend, or vacate (CR 59.05), a motion to correct clerical mistakes (CR 60.01), or a motion for relief on the basis of mistake, inadvertence, excusable neglect, new evidence, or fraud (CR 60.02).
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Fed.R.Civ.P. 26(b)(3)(A) and (B) guide federal courts asked to compel disclosure of trial preparation materials. In general trial preparation materials are protected by the work product doctrine. This doctrine is designed to “allow an attorney to ‘assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference … to promote justice and to protect his client’s interests.’” Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D. 298, 303 (S.D. Ohio 2010) (citing Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th Cir. 2002)).
If a federal court orders production of trial preparation materials under Fed.R.Civ.P. 26(b)(3)(A), then pursuant to Fed.R.Civ.P. 26(b)(3)(B), which defines part of the work product doctrine, it must “protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” In Gruenbaum, Magistrate Judge King addressed Rule 26(b)(3)(A) and (B) in response to Plaintiff’s motion to compel production of in-house counsel’s handwritten notes taken while investigating the underlying accident.
The basic facts of the case are that the survivor of the deceased driver alleged that the Defendant tractor-trailer driver negligently operated his vehicle causing driver’s death. During discovery, Plaintiff learned that Defendant’s counsel had made handwritten notes as a part of his investigation. Plaintiff sought Defendant’s investigative file and handwritten notes on the collision alleging they were not protected by the work product doctrine because they were made for an ordinary business purpose. Id. at 303. The Defendant produced all of the file, except the handwritten notes, because it asserted the notes were protected by the work product doctrine and Rule 26(b)(3)(B).
Citing Fed.R.Civ.P 26(b)(3), the Court noted that the work product doctrine could be set aside where the information sought is otherwise discoverable under Rule 26(b)(1), and the party seeking the information shows a substantial need. Id. The Court then distinguished between fact work product and opinion work product, holding that “absent waiver, a party may not obtain the ‘opinion’ work product of his adversary; i.e., ‘any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments or legal theories.’” Id. at 303 (citing Tennessee Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th. Cir.2002)).
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