Author: Lewis

While potential juror research, including the use of juror questionnaires, has become common in litigation, a recent order from U.S. District Judge William Alsup in the Oracle Corp. v. Google, Inc. copyright dispute is a good reminder that juror investigation can be taken too far.  Judge Alsup rejected the parties’ “intrusive” juror questionnaire, finding that the questionnaire was a tool for gathering information to be used in background checks on potential jurors.  “The court suspects that a real reason the parties wish to use the proposed questionnaire and its two-day (or more) procedure is to get the names of prospective jurors and their places of residence so that they may conduct extended Internet investigation,” wrote Judge Alsup.  Beyond juror privacy, Judge Alsup was also concerned that the information gathered could act as an insurance policy on appeal.  For example, the parties could use their internet research in an attempt to demonstrate a juror was untruthful during selection.  Canvassing the internet for jurors’ private information was particularly troubling, Judge Alsup noted, because jurors are instructed not to do any internet research on the case.  Such a double-standard could be confusing to them.

Whether or not others follow Judge Alsup’s lead remains to be seen.  But practitioners should exercise caution when crafting juror questionnaires to give due consideration to juror privacy.

On January 1, 2016, important changes were made to the California Code of Civil Procedure (CCP) which will have a significant impact on the litigation process, particularly as it relates to demurrers.

The new CCP section 430.41 requires the parties to “meet and confer” before a demurrer is filed.  If the parties cannot complete a meet and confer 5 days before a responsive pleading is due, the demurring party can obtain an automatic 30-day extension by filing a declaration with the court.

Additionally, CCP section 430.41 now imposes a limit on the number of amended complaints that can be filed.  Under the previous demurrer statutes, there was no such limitation.  Now, a complaint cannot be amended more than three times, absent an offer to the trial court that there is a reasonable possibility the defect can be cured.

Moreover, CCP section 472 is amended to prevent amended complaints from being filed on the eve of a demurrer hearing.  An amended complaint must now be filed no later than the date an opposition to the demurrer is due.  An amended pleading can only be filed after that date pursuant to a stipulation of the parties.

In short, the new rules will limit the number of amended complaints and demurrers that can be filed.  It will also save counsel and the courts from having to prepare for demurrer hearings, only to have them rendered moot by amended complaints filed on the eve of the hearing.

On December 1, 2015, some significant changes to the Federal Rules of Civil Procedure will take effect.  Among the changes are revisions to Rule 26(b), which defines the scope of discovery.  The amendments will place new constraints on discoverable information.  Attorneys and clients should be aware of how these changes will affect their discovery requests to opposing parties, and also how they can use the amendments to limit overbroad requests.

The amended FRCP 26 will clarify the scope of discovery by requiring that discovery is both “relevant to any party’s claim or defense” and “proportional to the needs of a case.”  Courts are currently permitted to consider proportionality factors in order to limit discovery, but the amendment more clearly ties the proportionality factor to the scope of discovery.

In addition, the amendments will remove the well-known current language in Rule 26(b)(1) that allows discovery of information “reasonably calculated to lead to the discovery of admissible evidence.”  It will be replaced with the statement: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  According to the rule’s committee notes, the change is meant to correct the common misuse of the “reasonably calculated” phrase in defining the scope of discovery.  Instead, the new language is designed to allow discovery of non-privileged inadmissible information “so long as it is otherwise within the scope of discovery” (i.e., information that is both relevant and proportional).

These changes will likely limit the discovery burden that parties can attempt to impose on one another and encourage narrower discovery orders, especially in cases involving relatively small amounts of damages or clients with less resources.  All counsel practicing in federal court should stay abreast of these developments.

Earlier this month, Governor Jerry Brown signed legislation aimed at helping courts dispose of motions for summary judgment and summary adjudication more quickly.  Under Senate Bill 470, sponsored by the Judicial Council and California Judges Association, courts deciding summary judgment and adjudication motions need only consider evidentiary objections they deem material to the motion.  Objections not ruled on by the judge will be preserved for appellate review.

The goal of the bill is to “reduce and better direct the time and effort of trial courts” in ruling on these motions.  The impact of the legislation on practitioners remains uncertain, but in light of this new rule, attorneys would be well advised to consider streamlining their objections on summary judgment in order to minimize the risk that important ones are not overlooked.