Post Process

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Archive for July 27th, 2009

Case Blurbs-OR: In re Helicopter Crash near Wendle Creek; Dist. Court Predicts Oregon will allow Spoliation Cause of Action

Posted by rjbiii on July 27, 2009

Post Process-This is an opinion by a district court in Connecticut sitting in judgment of a diversity case to be tried under the laws of the state of Oregon.

The Oregon Supreme Court has not yet considered whether intentional or negligent spoliation claims present cognizable causes of action. In such instances, “[i]n the absence of controlling forum state law, a federal court sitting in diversity must use its own best judgment in predicting how the state’s highest court would decide the case.”

In [Blincoe v. Western States Chiropractic College, 2007 U.S. Dist. LEXIS 51955, 2007 WL 2071916 (D. Or. July 14, 2007)], Magistrate Judge Papak recommended granting the defendant’s motion to dismiss an intentional spoliation claim and concluded that “Oregon law does not recognize the tort of intentional spoliation of evidence by a party.” Judge Papak’s analysis considered the law of other states, as well as Oregon’s numerous statutory, non-tortious remedies dealing with spoliation of evidence, in reaching that conclusion. FN2.

In Marcum v. Adventist Health System/West, 215 Ore. App. 166, 168 P.3d 1214, 1228-29 (Or. App. 2007), rev’d on other grounds, 345 Ore. 237, 193 P.3d 1 (Or. 2008), the Oregon appellate court acknowledged the parties’ dispute regarding spoliation causes of action under Oregon law, declined to “address the precise contours” of a negligent spoliation claim, and ultimately held that the plaintiff-appellant’s negligent spoliation claim failed. Nonetheless, the Marcum court discussed the merits of that claim:

We need not, and do not, address the precise contours of a cognizable claim for “negligent spoliation” under Oregon law. That is so because plaintiff here failed to make a prima facie showing that defendants’ alleged failure to maintain or produce the allegedly “missing” records materially impaired her prosecution of her medical negligence and informed consent claims.

Plaintiff’s “negligent spoliation” claim is akin to a legal malpractice claim in that “damages arise from the loss” — or diminution of value — of an underlying claim. . . . [P]laintiff’s primary medical negligence and informed consent claims ultimately failed for lack of proof of scientific/medical causation. Plaintiff argues that, if the allegedly absent records had been created or maintained and produced, Williamson might have been provided with the “missing link” that would have enabled him to identify and persuasively explain the causal relationship between gadolinium extravasation and Raynaud’s syndrome. Specifically, plaintiff points to the fact that no records reflect the amount of gadolinium used during the procedure. . . .

Accordingly, on this record, there is no evidence that plaintiff’s prosecution of her primary claims was materially impaired by the absence of such information-whether because of affirmative “spoliation” or by any negligent failure to create, maintain, or produce records pertaining to the MRI procedure.

Even without discussing the precise nature and elements of a negligent spoliation claim, absent further guidance or development from the Oregon Supreme Court, the appellate court’s decision in Marcum indicates that Sikorsky’s proposed amendments adding spoliation claims would not be futile. Absent a more recent or more authoritative ruling to the contrary, I predict on the basis of the Marcum decision that the Supreme Court of Oregon would recognize intentional and negligent spoliation of evidence as causes of action. FN3. “In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state unless there is convincing evidence that the highest court of the state would decide differently.” Here, there is no convincing evidence that the Oregon Supreme Court would not recognize spoliation causes of action.

FN2: Although Judge Papak’s findings and recommendation in Blincoe were adopted by the district court, the district court did not consider or develop the spoliation questions any further; neither did Magistrate Judge Papak in later proceedings.

FN3:The Court of Appeals of Oregon discussed negligent spoliation of evidence, but did not address the question of intentional spoliation. Because intentional spoliation, by its nature, involves a more deliberate action than negligent spoliation, I believe that, if the Oregon Supreme Court were to recognize negligent spoliation as a cause of action, the court would also recognize intentional spoliation of evidence as a cause of action.

In re Helicopter Crash near Wendle Creek, 2009 U.S. Dist. LEXIS 41477 (D. Conn. May 18, 2009)(internal citations omitted).

Posted in 2nd Circuit, Case Blurbs-OR, D. Conn., Judge Stefan R. Underhill, Spoliation | Leave a Comment »

What happens when the Review Application is Smarter than we are?

Posted by rjbiii on July 27, 2009

According to an article in the Science section of the NY Times, scientists have become concerned that machines may one day outsmart us.

Impressed and alarmed by advances in artificial intelligence, a group of computer scientists is debating whether there should be limits on research that might lead to loss of human control over computer-based systems that carry a growing share of society’s workload, from waging war to chatting with customers on the phone.

Their concern is that further advances could create profound social disruptions and even have dangerous consequences.

I think that there is no doubt that a profound change is occurring here, and that we need to (at least attempt to) proactively manage the change. In our industry, we have seen some displacement of attorneys reviewing documents due to outsourcing. What happens when the review application not only stores the review data, but also actually conducts the review for relevance as well? Yet trying to install limits on the growth of technology is a difficult, and perhaps ill-advised, effort.

The article continues by mentioning scenarios which have machines taking over…or at least foresee the ending of the “human era.” Interestingly, the final passages look at an interesting occurrence in these times:
Despite his concerns, Dr. Horvitz said he was hopeful that artificial intelligence research would benefit humans, and perhaps even compensate for human failings. He recently demonstrated a voice-based system that he designed to ask patients about their symptoms and to respond with empathy. When a mother said her child was having diarrhea, the face on the screen said, “Oh no, sorry to hear that.”

A physician told him afterward that it was wonderful that the system responded to human emotion. “That’s a great idea,” Dr. Horvitz said he was told. “I have no time for that.”

So here, we program a machine to simulate human emotion, alleviating the need for a real human to be supportive. Of all the ways the future can go, I would say that humans attempting to emulate machine-like behavior for the sake of efficiency is the worst choice. We cannot be better machines than machines…we can only maintain a true course in all of this chaos by embracing our own humanity. The doctor above who “had no time” to be supportive needs (ahem) to be re-programmed.

Posted in Articles, Technology, Trends | Leave a Comment »

E-Discovery Issue of Law Review Coming Out

Posted by rjbiii on July 27, 2009

In February, I attended, and spoke at, an E-Discovery Symposium in Covington, KY (just across the way from Cincinnati) hosted by Salmon P. Chase Law School at Northern Kentucky University. Panelists included Professors Debra Lyn Basset (U. of Alabama) and Stephen Gensler (U. of Oklahoma) and Steven Bennett of Jones Day.

Well, now the school is publishing a companion issue of the law review, and it is completely dedicated to electronic discovery (no electronic link available yet…the law review site still has the previous issue’s information posted). Table of contents for the issue:


  • Jennifer Anglim Kreder (Prof. Chase School of Law) and Bryce C. Rhoades (JD candidate, Chase School of Law) write…Introduction: Navigating the Changing Ethical and Practical Expectations for E-Discovery.
  • Steven C. Bennett (Jones Day) writes…The Ethics of Legal Outsourcing.
  • Roland Bernier (your dedicated blogger!) writes…Avoiding the E-Discovery Odyssey.
  • Stephen S. Gensler (Prof. U. Oklahoma School of Law) writes…Some Thougts on the Lawyer’s E-volving Duties in Discovery.


  • Robert E. Altman & Benjamin Lewis (JD Candidates, Chase School of Law) write…Cost-Shifting in ESI Discovery Disputes: A Five Factor Test to Promote Consistency and Set Party Expectations.
  • Emily N. Litzinger (JD Candidate, Chase School of Law) writes…The Ethical Dilemma of Scrubbing Metadata: The Pathway to a Better Approach.
  • Christine M. Steimle (JD Candidate, Chase School of Law) writes…The Decision to Compel Unrestricted Foreign Imaging: A Note Discussing John B. v. Goetz.

Purchases may be made by going to this page and following the instructions.

Posted in Articles, Discovery | Tagged: , | Leave a Comment »