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CIVIL PRACTICE Privilege extends to prosecutors’ thinking The work-product privilege protects a prosecutor from testifying in a malicious prosecution suit, even when the prosecutor’s office has already released the prosecution file, the Texas Supreme Court ruled in a matter of first impression on May 4. In re Bexar County Criminal District Attorney’s Office, No. 05-0613. The Bexar County district attorney’s office filed charges against David Crudup for allegedly threatening to kill his neighbor, Cynthia Blank, with whom he had a long-standing feud. After Blank failed to cooperate, the office dropped the charges against Crudup, who then sued Blank for malicious prosecution. Subject to a subpoena, the office gave its file on the dropped charges to Crudup. Crudup then subpoenaed three assistant prosecutors to testify at trial. The office moved to quash the subpoena, arguing that the work-product privilege precluded the assistants’ testimony. A state trial court granted the motion, but an intermediate appeals court vacated the order. The office sought relief from the high court. The Texas Supreme Court granted the writ on a 5-3 vote, the majority agreeing that the work-product privilege protected the assistant prosecutors. Prosecutors’ release of Crudup’s file waived the work-product privilege with respect to the file’s factual content, but it did not affect their testimonial work-product privilege covering their mental processes.   Full text of the decision Credit-report error was not unreasonable A credit-reporting agency had no liability under the federal Fair Credit Reporting Act (FCRA) for relying on erroneous civil judgment information in a court docket, the 9th U.S. Circuit Court of Appeals held on May 7. Dennis v. BEH-1, No. 04-56230. Jason Dennis was in litigation with his landlord, and the parties agreed to settle the case, stipulating that no judgment would be entered. However, an erroneous docket entry indicated that a judgment had been entered. Relying on the docket entry, Experian Information Systems issued a credit report indicating that a money judgment had been entered against Dennis. Dennis sued Experian under the FCRA. A federal district court granted summary judgment to Experian, and Dennis appealed. Affirming, the 9th Circuit held that Experian was not liable because its reliance on the docket information was reasonable. Dissenting, Judge Alex Kozinski argued that once Dennis disputed his credit report, the company was obliged to locate the actual judgment. “Had Experian looked for a such a document, it would have found no judgment � undermining rather than confirming the position Experian had taken in the original report,” Kozinski wrote. Dismissal sustained in tainted-blood litigation A federal trial court did not abuse its discretion in ruling that British hemophiliacs suffering from HIV and hepatitis C infections because of tainted blood products should sue their suppliers in the United Kingdom, the 7th U.S. Circuit Court of Appeals ruled on May 4. In re Factor VIII or IX Concentrate Blood Products Litig., No. 06-1427. The plaintiffs were among a group of hemophiliacs from various overseas jurisdictions who sued drug companies in the U.S. District Court for the Northern District of California. The case, alleging that the companies were less diligent in screening products sold overseas for viruses than those sold in the United States, was consolidated with similar actions in other U.S. jurisdictions in the Northern District of Illinois. The judge there granted a defense motion of forum non conveniens regarding the British plaintiffs. The plaintiffs appealed to the 7th Circuit. Affirming, the 7th Circuit conceded that the case was a “close call,” and that the lower court placed “surprisingly little weight” on the value of trying the case in California, where the defendants maintained headquarters or did business. However, it appeared that the plaintiffs would have a remedy in law in the United Kingdom, where they live and are undergoing medical treatment, even though the British “loser pays” approach to lawyers’ fees might be unfavorable to them. “[W]e see no reversible error in the district court’s conclusion that the defendants met their burden here,” the court said. Judge deferred too much to an advisory jury When a judge impanels an advisory jury on his own initiative, and adopts that jury’s judgment and award without making his own findings, the judgment must be vacated and remanded for the court to reach its own judgment, without deferring to the verdict, the 10th Circuit U.S. Court of Appeals ruled on March 7. OCI Wyoming v. Pacificorp, No. 06-8026. OCI Wyoming filed suit against Pacificorp for alleged breach of contract to reliably supply electricity to OCI’s mine and refinery. Although both parties waived their right to a jury trial, a Wyoming federal district court impaneled an advisory jury. Following a trial, the advisory jury determined that Pacificorp had breached the agreement and calculated OCI’s damages at around $378,000, a fraction of the $6 million OCI claimed. The court adopted the advisory jury verdict, concluding that it was supported by “substantial evidence.” OCI appealed, seeking a new trial. The 10th Circuit vacated the judgment and remanded with instructions that the district court “review the evidence previously presented and reach its own judgment, setting forth sufficient findings of fact and conclusions of law without giving deference to the advisory jury’s verdict.” Although OCI waived its appeal from the impaneling of an advisory jury by failing to object at the time, in a trial before an advisory jury, the court must “find the facts specially and state separately its conclusions of law thereon.” While those findings need not include “excruciating detail,” the court said, “too little detail frustrates meaningful appellate review.” Although OCI suffered prejudice, the court added, “we do not agree that the extreme sanction of a new trial is warranted.” No punitive damages in deception about adoptee Because of evolving understanding about the causes of mental illness, an adoption agency cannot be forced to pay punitive damages for intentionally withholding information that the parents of a child placed for adoption suffered from schizophrenia, the New York Court of Appeals ruled on May 3. Ross v. Louise Wise Services, No. 58. When Barbara and Arthur Ross adopted a baby boy from the Louise Wise Services adoption agency in 1961, the agency disclosed the birth parents’ basic health histories but did not reveal that both had histories of mental illness, including schizophrenia. Over three decades, the Rosses repeatedly contacted the agency to inquire whether there might be a biological cause for the sometimes-violent behavior their son exhibited. Because the agency’s policy in the 1960s and 1970s was that mental illness was not hereditary, the agency did not disclose information about the birth-parents’ illness. In 1995, the child was diagnosed with paranoid schizophrenia. The Rosses sued the agency for wrongful adoption, fraud, negligence, breach of fiduciary duty and intentional infliction of emotional distress. A state trial court granted summary judgment to the agency on all claims except wrongful adoption, but disallowed recovery for punitive damages. An intermediate appellate court affirmed in part, but split evenly over whether the Rosses could pursue punitive damages. The Court of Appeals, New York’s court of last resort, affirmed as modified, ruling that the Rosses cannot pursue their demand for punitive damages. Although “troubled” by the agency’s concession that it intentionally misrepresented the child’s background, the court concluded that the conduct did not rise to a high degree of moral turpitude necessary for punitive damages. Until the early 1980s, it was commonly thought that mental illness was not hereditary. Punitive damages would not serve a deterrent function, either, since the agency no longer offers adoption services and another entity manages its old records. CONSTITUTIONAL LAW Classroom religious items properly removed A public school teacher had no First Amendment right to place religious materials on his classroom’s bulletin boards, the 4th U.S. Circuit Court of Appeals held on May 2. Lee v. York County Sch. Div., No. 06-1363. William Lee was a Spanish teacher at a high school in Virginia’s York County. After receiving a complaint about bulletin-board postings in Lee’s classroom, the school’s principal removed some items because he deemed them too religious for a public school classroom. Lee sued, arguing that he had a free speech right to post the material. A federal district court granted summary judgment to the county, and Lee appealed. Affirming, the 4th Circuit held that the bulletin-board materials were removed appropriately, because they represented curricular speech rather than speech regarding a matter of important public interest. Citing the U.S. Supreme Court’s decisions in Pickering v. Board of Education and Connick v. Myers, the court said that “Lee cannot use the First Amendment to justify his assertion that he is free to place his postings on the classroom bulletin boards without oversight by the School Board.” CRIMINAL LAW Fear was no defense to drunken driving The competing-harms doctrine provided no defense to a charge of operating a motor vehicle under the influence of alcohol, because the driver had other options to avoid the potential harm, the Maine Supreme Judicial Court held on May 3. State v. Nadeau, No. 2007 ME 57. Timothy Nadeau was talking to a woman in a bar when the woman’s boyfriend threatened him. Nadeau, who admitted he was intoxicated, said he drove the car away from the scene only after the boyfriend followed him into the parking lot and he feared for his safety. Having noticed his erratic driving, police arrested him for drunken driving. A trial court held that Nadeau had established a competing-harms defense because of the threat, but still found him guilty, holding that there were other ways to evade the danger. Nadeau appealed. Affirming, the Maine Supreme Judicial Court agreed that Nadeau did, in fact, have options besides driving the car. Maine case law does not stand “for the proposition that a defendant’s subjective belief that his conduct is necessary does away with the requirement that there be no reasonable alternatives.” Prosecutors’ veto over DNA tests struck down An Ohio law allowing prosecutors to block inmates’ requests for post-conviction DNA testing, and forbidding judges to overrule them, violates the separation-of-powers doctrine under the Ohio state constitution, the Ohio Supreme Court held on May 2. State v. Sterling, No. 2005-2388. In 1991, Cameron Sterling pleaded guilty to a charge of nonforcible rape of a child younger than 13, though he denied committing the crime. He was sentenced to six to 25 years in prison. In 2003, the Ohio Legislature authorized post-conviction DNA testing, subject to approval by the prosecuting attorney if the inmates pleaded guilty or no contest. The law specified that “no court shall have authority, without agreement of the prosecuting attorney, to order DNA testing regarding that inmate.” Sterling filed a motion for DNA testing of samples that were collected in the investigation but never tested. The prosecutor refused the request and a trial judge overruled Sterling’s motion. Sterling appealed to Ohio’s 11th District Court of Appeals, which struck the law as unconstitutional. The Ohio Supreme Court affirmed, saying that the law interfered with the exercise of constitutional judicial authority. “The legislature . . . may not impede the judiciary in its province to determine guilt in a criminal matter � and DNA testing results affect that issue � nor can it delegate to the executive branch of government the power to exercise judicial authority,” the court said. DEBTORS’ RIGHTS Attorney cannot collect against alimony award In an issue of first impression, the Nevada Supreme Court held on May 3 that an attorney’s lien does not attach to property awarded in a divorce decree that is exempt from execution by a creditor. Bero-Wachs v. The Law Office of Logar and Pulver, No. 44488. When Francesca Bero-Wachs filed for divorce from her husband, Dr. Jeffrey Alan Wachs, she suspected that he was concealing his assets. A year into the divorce proceedings, Bero-Wachs substituted Ronald J. Logar as her attorney, and he began looking for hidden assets, working with a forensic accountant and filing various motions. After a divorce decree was entered, Bero-Wachs refused to pay Logar. A state trial court determined that an attorney’s lien filed by Logar did not attach to Bero-Wachs’ alimony award, but did attach to all other assets awarded to her, including four individual retirement accounts (IRAs). The Nevada Supreme Court affirmed in part. Although state law allows an attorney to place a lien against “any money or property which is recovered on account of the suit or other action,” another section shields alimony and qualified IRAs from execution for debts. The court resolved the conflict by giving precedence to the latter code section, because it arose out of a constitutional mandate. The exemption of the alimony award was therefore proper, but the court ordered the lower court to determine which retirement accounts are exempt. FAMILY LAW Children ordered returned to Ireland A Florida trial judge erred in dismissing an Irish couple’s petition, filed under an international child-abduction treaty, seeking the return of grandchildren taken by their father to Florida without notice or approval, the 11th U.S. Circuit Court of Appeals held on April 30. Hanley v. Roy, No. 06-13161. Richard and Ellen Hanley’s daughter, Margaret, married Nicholas Daniel Roy, a U.S. citizen, in England in 1986. The Roys had three children and separated; meanwhile, the Hanleys helped to support Margaret and the children. In 1997, Margaret was diagnosed with cancer and moved to Ireland with the children to live with her parents. In March 2000, with her health deteriorating, Margaret executed a will designating her parents as the children’s guardians. In 2005, Roy � who had moved into the Ireland house in 2000 � suddenly moved the children to Florida without the Hanleys’ knowledge. They filed a petition for the children’s return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. A judge in the Southern District of Florida dismissed the petition, finding that the father’s action was not wrongful. The 11th Circuit reversed. The Hague Convention was adopted to protect children internationally from the harmful effects of wrongful removal and to establish procedures to ensure their prompt return, the court wrote. A federal judge considering a petition “cannot decide the underlying custody dispute, but only has jurisdiction to decide the merits of the wrongful removal claim,” it said. Permitting “the very act which the Convention seeks to prevent � namely, flight � to constitute a constructive objection sufficient to terminate the Hanleys’ ‘rights of custody’ would make a mockery of the Convention.” The court ordered Roy to return the children to Ireland, where the Hanleys can seek to determine their custodial rights under Irish law. Parental consent law upheld, but narrowed A state law targeting people who help minors get abortions without a parent’s consent was upheld by the Missouri Supreme Court on May 1. However, the court said that the law does not apply to people providing only abortion counseling or information. Planned Parenthood v. Nixon, No. SC87321. The Missouri statute creates a civil cause of action against anyone who intentionally causes, aids or assists a minor in obtaining an abortion without the consent of a parent or a judge. A number of Planned Parenthood organizations and others challenged the law’s constitutional validity. A Missouri trial court upheld the statute, but said that the law “cannot constitutionally reach the giving of information or counseling regarding the reproductive rights and options of minors.” The Missouri Supreme Court affirmed. The court held that provision of abortion information and counseling is core protected speech. Furthermore, the law covers only conduct in Missouri. It does not ban minors from traveling out of state for an abortion, or require parental consent for out-of-state abortions, or bar adults accompanying minors to obtain an abortion. MEDIA LAW Court rules that some people cannot be libeled Someone’s criminal or anti-social past must already have been widely publicized before he or she can be considered a libel-proof plaintiff, the New Hampshire Supreme Court ruled on May 1, in a matter of first impression. Thomas v. Telegraph Publishing Co., No. 2005-751. Terry Thomas sued the Nashua, N.H., Telegraph over a 1999 newspaper report that he’d been arrested for receiving stolen property and was “suspected in more than 1,000 home burglaries in Massachusetts and New Hampshire since the mid-1970s.” The story quoted police officers and other sources, who were also named as defendants. A state trial court granted summary judgment for the defense, saying that because of his lengthy and well-documented criminal history, Thomas’ reputation was so bad that even a libel could not further damage it. The New Hampshire Supreme Court reversed, adopting the libel-proof plaintiff doctrine but saying that it did not apply here. The court said that “[t]o justify applying the doctrine, the evidence of record must show not only that the plaintiff engaged in criminal or anti-social behavior in the past, but also that his activities were widely reported to the public.” The evidence must show “that the plaintiff’s reputation could not have suffered from the publication of the false and libelous statement.” The record showed no prior publicity about Thomas’ police record. The court sustained a lower court ruling that the fair-report privilege applies only “reports of official actions,” not including libelous statements by police, witnesses or prosecutors outside the official record.

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