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May 2013 Archives

Work-Product Doctrine, Waiver, Privilege Log

The Rhode Island Supreme Court has held that an in-house counsel's Powerpoint slides respecting insurance coverage for a lawsuit created for a presentation for the company's board of directors are factual work-product and that the company did not waive its privilege through accidental disclosure of the slides to third-parties. 

Sexual Harassment and Common Law Tort Claims

The Rhode Island Superior Court has dismissed some but not all claims a plaintiff has filed for sexual harassment.  Plaintiff alleged that she was an "on-air radio personality" for a local radio station's morning show.  One of her "characters" was "Anaconda," a "provocative woman" who used "racy language in a flitatious manner....to give the impression [she was] easily seduced."  Plaintiff alleges that another employee of the station began sexually harassing her, that that employee became the station's general manager and eventually fired her and another employee with whom she had previously had a romantic relationship. 

Jury Instruction on Insurance, Constitutionality of Pre-Judgment Interest

In the context of a medical malpractice case, the Supreme Court has held that it was not error for the trial court sua sponte to instruct the jury not to consider what affect insurance may have on the case or whether the case will affect the defendants' insurance premiums.  Similarly, the trial justice instructed the jury not to speculate about the parties' attorney's fees including who was paying them or how big they may be.  The Court said the instruction "simply addressed the reality that jurors often wonder about liability coverage, especially in instances where there is typically an insured risk, such as medical malpractice."

Expert Disclosures in Federal Court

In an apparently unpublished decision, Magistrate Judge Sullivan of the federal district court has held that Rule 26(a)(2) requires the disclosure of all facts or data considered by an expert witness, not just the facts or data upon which the expert relies.  The issue arose in the context of a trademark dispute between two local jewelry manufacturers.  Plaintiff's expert used a consumer survey as part of his analysis to conclude there was a likelihood of confusion between the parties' marks.  However, the expert's disclosure did not include the entire survey, only those parts on which the expert relied, nor did the disclosure include the raw survey results, i.e., all the respondents' answers to all the questions.  Defendant moved to compel the production of the entire survey and all its results.  Plaintiff produced the complete survey and results two weeks before defendant's expert disclosures were due. 

Injury due to school horseplay not foreseeable to school

The Rhode Island Supreme Court has held that a private high school does not have an obligation to insure the safety of its students throughout the entire school.  Rather, it has a duty only to provide a safe environment when it is foreseeable that a student may be injured in a particular area of the school or as a result of a particular student's actions.  In this case, a student at a Catholic high school was injured as a result of horseplay with other students in a bathroom when he accidentally put his hand through a bathroom window.  The Court said there was no history of horseplay in the area where the incident took place or of complaints about the other student involved in the horseplay. 

"Citizen-Only" FOIA Statutes Are Constitutional

In a unanimous decision, the Supreme Court has held that state Freedom of Information Acts that only allow state citizens to obtain documents through the acts violate neither the federal Privileges and Immunities Clause nor the dormant Commerce Clause.  Two plaintiffs who were citizens of states other than Virginia (one was a Rhode Island attorney), brought suit against Virginia when their FOIA requests were denied because they were not citizens of the Old Dominion.  The Court said that the Privileges and Immunities Clause does not require states to apply all its laws equally to citizens and non-citizens.  Rather, the P&I Clause applies only to privileges and immunities that are "fundamental," such as the opportunity to pursue a common calling, the ability to own and transfer property , access to state courts and access to public information.