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Wednesday, March 24, 2010

N.C. Court of Appeals Allows Charlotte To Withhold Documents - Were They Prepared For Reasonably Anticipated Litigation Or For Speculative Litigation?

by Gary L. Beaver

On March 16, 2010, in Wallace Farm, Inc. v. City of Charlotte, the North Carolina Court of Appeals affirmed the Mecklenburg County Superior Court's order preventing the plaintiff from inspecting certain public records held by the City of Charlotte. The City had produced over 21,000 pages of documents but withheld about 225 documents consisting of about 500 pages on grounds that they were protected from discovery because they were attorney work product materials prepared in reasonable anticipation of litigation. The lower court conducted an in camera review and agreed with the City.

Charlotte zoning inspectors had used an administrative warrant to search the plaintiff farm after complaints were made of odor from the farm's composting facility and allegations that the farm had grown beyond limits set in 1999 zoning regulations. The farm owners requested all public records from 1998 to 2008 referring to the farm. The City said it would comply but the plaintiff impatiently filed the lawsuit to compel production of the public records. The City asserted in a letter that the documents were prepared in anticipation of a legal proceeding that had yet to commence that being if the City was to take action against the farm pursuant to the complaints, the litigation that was reasonably anticipated to follow. At a hearing, the City added that the materials related to the City's research and consideration of legal strategies related to possible zoning enforcement. Despite the fact that the Public Records Act (in Chapter 132 of the NC General Statutes) provides for liberal access to public records and exceptions and exemptions to the Public Records Act must be construed narrowly, the appellate court, after its own in camera review, agreed with the City withholding the documents using an abuse of discretion standard.

These kinds of cases are difficult to evaluate because the courts necessarily cannot provide much detail about what is in the documents reviewed in camera. One would think that, in light of the Public Records Act's bias toward disclosure, a public agency would have to make stronger arguments than were presented here. For example, one does not see this type of leeway given by the courts to insurance companies withholding documents in reasonable anticipation of litigation that has much greater likelihood of occurring and where the Public Records Act does not provide a bias favoring disclosure. Why treat a public agency's work product claims with greater deference than a private insurer? However, without knowing what was in the documents, one cannot know whether the court's decision here was sound. Regardless, this case is likely to be cited by every public agency in NC that withholds a document based on work product claims further driving up the cost for private citizens to obtain public information.

Monday, March 22, 2010

A Tale of Two Airports

by Kirsten E. Small

Over a strong dissent by Judge Davis, the Fourth Circuit recently ruled that a total ban on newspaper racks by the Raleigh-Durham International Airport violates the First Amendment. News & Observer Publishing Co. v. Raleigh Durham Airport Authority, No. 09-1010 (Mar. 12, 2010).

The Publisher has its newspapers for sale in airport shops, which are required to be open before the first flight leaves in the morning and until after the last flight arrives. Nevertheless, some 30-odd flights arrive each evening after the shops have closed, depriving arriving passengers of the ability to purchase that day's paper. The majority also noted that papers were sometimes unavailable when the shops opened, or sold out before the end of the day.

The Airport does not allow any newspaper racks in the terminals, citing four concerns: aesthetics; preserving revenue for airport shops (particularly, revenue from incidental purchases made by those buying papers); preventing congestion (studies show that a newrack in a corridor reduces traffic flow by 42 people per minute when closed, and by 110 people per minute when open); and security (including the need to screen delivery persons and the possibility that a newsrack could be used as a hiding place for an explosive). Relying on Multimedia Publishing Co. v. Greenville-Spartanburg Airport, 991 F.2d 154 (4th Cir. 1993), the majority affirmed the district court's grant of summary judgment to the newspaper, concluding that the Airport's interests did not outweigh the "significant" restriction on the Publisher's protected expression.

Judge Davis' dissent challenged the majority's conclusion that there was no issue of fact for the jury to resolve, chastising the majority for "answer[ing] the wrong inquiry"--i.e., whether the Airport's interests outweighed the Publisher's rights, rather than whethere there was a material question of fact for trial. Judge Davis noted the strange procedural posture of the case: The district court first denied summary judgment, then sua sponte reversed itself a year later, without any intervening briefing by the parties.

Judge Davis then identified numerous facts tending to contradict the majority's conclusions regarding the significance of the restriction on the Publisher's rights; the similarity of this case to the prior litigation involving the Greenville-Spartanburg Airport; and the strength of the Aiport's interests in restricting newspaper sales to shops.

As is often the case with dissenting opinions, the pictures painted by the majority and the dissent are in sharp contrast. More than pointing out factual differences, however, Judge Davis challenges the majority's juridical approach to review of summary judgment, asserting that the majority decided the case on the merits rather than simply determining whether there was a genuine issue of material fact.

Thursday, March 18, 2010

Supreme Court of South Carolina finds expert testimony must be beyond the ordinary knowledge of the jury

By Manton Grier, Jr.

In Watson v. Ford Motor Co., et al., Op. No. 26786 (S.C. Sup. Ct. March 15, 2010), the Supreme Court of South Carolina reversed a jury award of $20 million and held that two of the plaintiffs’ experts should never have been qualified. The case involved an allegedly defective cruise-control system that caused a Ford Explorer to accelerate suddenly off the highway and roll over four times. The crash killed one passenger and severely injured another.

Importantly, the Court held that, as a gatekeeping function, the trial court must first find that the expert’s subject matter “is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury.” As to the individual experts, the Court first found that the trial court erred by admitting the testimony of an expert on cruise-control systems. The Court reasoned that the expert had no “knowledge, sill, experience, training or education specifically related to cruise control systems.” Instead, the expert simply studied the system before trial and taught himself the system. Nevertheless, the Court held that this expert testimony, standing alone, did not prejudice Ford.

The Court then held as unreliable expert testimony theorizing that alternative designs and electromagnetic interference caused the sudden acceleration. The expert had no experience with automobiles or with cruise-control systems. Further, the Court stressed that his theory had not been peer reviewed, had never been published by him, and he had never tested the theory. Indeed, the theory was impossible to test. Although the Court noted that scientific evidence may be admitted even when lacking general acceptance in the scientific community, the theory was not only not accepted but also rejected by the scientific community.

Justice Pleicones concurred in result but disagreed that the first gatekeeper function of the trial court is to determine whether the subject matter is beyond the jury’s knowledge. Pleicones argued that while some issues are almost always beyond the understanding of a lay jury, other issues such as medical malpractice, sanity, and intoxication are examples where both lay and expert testimony may be presented. Thus, Pleicones disagreed with the majority to the extent “that expert testimony is now admissible only when it is ‘required’ or ‘necessary’ for the jury to understand evidence or an issue.”

Thursday, March 4, 2010

"May it please the Co--" (Or, making the most of limited argument time).

By Kirsten Small

I ran across an interesting article by Tony Mauro of the National Law Journal. Mr. Mauro notes that while Chief Justice Rehnquist was a stickler for keeping attorneys to their alloted argument time, Chief Justice Roberts is more flexible, allowing lawyers to finish their thought and event allowing additional time when necessary.

Does this mean the Chief has turned the henhouse over to the foxes? Hardly. While my experience has been that there is often a vast difference between the amount of time an appellate lawyer thinks he needs to argue his case, and the amount of time that he actually needs, it is also true that quite often, the time alloted (30 minutes per side in the Supreme Court, 20 minutes per side in the Fourth Circuit, with some exceptions) is insufficient for counsel to address all of the issues on his agenda and to respond to issues from the court. When this happens,the presiding judge must decide whether to allow additional argument time.

Appellate advocates should take this into account when preparing for oral argument. Triage your arguments--or have a disinterested colleague do it for you--and focus only on those that (a) have the best chance of prevailing, and/or (b) are likely to need explaining beyond what is already in your brief. Bear in mind that you do not need to argue a point just because it is in your brief--indeed, more than one lawyer has snatched defeat from the jaws of victory by failing to leave well enough alone.

Accommodating the time limitations of appellate argument requires an agility that comes from knowing your case and the law inside out. If the court grills you on issue C, such that you are short on time for issues A and B, you are going to need to jettison one or the other, or truncate both, on the fly. Having a plan in mind before you step to the podium will make this an easier decision. Plus, the court's questions may indicate to you a particular area of concern that needs to be addressed, and you should be sufficiently knowledgeable and flexible to do so.

Machiavelli* once wrote, "I am writing you a long letter because I do not have the time to write you a short one." So it is with oral argument--the ability to be brief requires intense, time consuming preparation. The best advocates recognize the value of this investment of time.

*Actually, I have seen this statement attributed to numerous people. Since I first heard it attributed to Machiavelli, that's what I'm going with here.

Wednesday, March 3, 2010

Congratulations, Judge Keenan

Yesterday, the United States Senate voted next-to unanimously (99-0) to confirm Virginia Supreme Court Justice Barbara Keenan to the Fourth Circuit. The story from the Richmond Times-Dispatch can be found here.

Judge Keenan's confirmation brings the total number of judges on the court to 12, still three short of the authorized 15 judgeships. However, two additional nominations to the court--those of Albert Diaz and James Wynn--are awaiting Senate confirmation.

Judge Keenan is the fourth woman to be confirmed to the court and will be the third on its current roster, joining judges Diana Motz and Allyson Duncan. Karen Williams, former Chief Judge and the first woman to serve on the court, retired last year.

No word yet on when Judge Keenan will be sworn in.