Proposed revisions to Louisiana discovery procedure

If enacted, House Bill 203 will revise several articles of the Louisiana Code of Civil Procedure governing discovery. Some of the changes would be the following:

"Except with leave of court, when an exception is filed by a defendant prior to answer, the scope of discovery directed to or by that defendant prior to answer is limited to issues raised by the pending exception." New C.C.P. Art. 1422 C.

Article 1424 would be amended to extend the work-product privilege to electronically stored information.

A party claiming a privilege on documents sought in discovery would be required to produce a privilege log similar to that currently required by the Federal Rules.

Inadvertent disclosure of privileged information will not be an automatic waiver of the privilege, as long as the disclosing party took reasonably prompt measures to notify the receiving party of the inadvertence of the disclosure and the privilege asserted.

Drafts of an expert witness's report would generally not be discoverable.

The option to produce records to respond to an interrogatory would be extended to electronically stored information.

Article 1461, which authorizes a request for production, would be extended to include electronically stored information.

In addition, new Article 1633.1 would authorize trial testimony by remote video if the witness is beyond the court's subpoena power.

Highlights of the recent legislative session

In this age of legal blogs, Frank Maraist's Civil Law Newsletter remains a valuable resource. He reads everything you need to know and sums it up in one- or two-sentence blurbs—just enough information to inform you whether you need to read the entire decision or legislative act. The most recent issue points out the following significant developments (among many, many others):

Act 621 (text here) creates the 41st JDC, consolidating the various courts of Orleans Parish. It also consolidates several of the ancillary offices of those courts (e.g. sheriff, clerk, etc.)

Act 644 (text here) requires the Louisiana Supreme Court and Courts of Appeal to post their unpublished decisions on their respective web sites, and authorizes citation of the unpublished decisions as authorities.

Scope of appellate review may change

Under the Louisiana Constitution, Art. 5 § 10, appellate review in civil cases extends to both law and facts. But that would change under Senate Bill 77, now being considered by the Legislature. The summary says that the purpose of this bill is to amend the Constitution "to provide for the appellate jurisdiction of a court of appeal and to provide that appellate review extends only to questions of law." According to the Senate Judiciary Committee's agenda, a hearing of the matter was held (or will be held) today.

Hurricane-related suspension of legal deadlines

Here's something worth bookmarking: Act 6 of the 2005 First Extraordinary Session of the Legislature, ratifying the governor's executive order that extended or suspended legal deadlines due to Hurricanes Katrina and Rita, and enacting further legislation to the same effect.

Appellate-procedure legislative update

House Bill 226, with a few Senate amendments, has passed both houses of the Legislature. If signed by the governor, it will become effective on January 1, 2006 and will make two important changes in Louisiana appellate procedure:

1. In class actions, it will make an order granting or denying class certification appealable as of right, thus codifying Davis v. Jazz Casino Co., LLC, 849 So.2d 497 (La. 2003).
2. It deletes the provision in La. C.C.P. Art. 2083 allowing appeal from an interlocutory judgment that will cause irreparable injury. Instead, interlocutory judgment will be appealable only when expressly provided by legislation.

The bill was originally blogged on Naked Ownership here.

House Bill 226

Appellate lawyers and class-action lawyers will want to keep an eye on House Bill 226. Recommended by the Louisiana State Law Institite, the bill would make several amendments to the Code of Civil Procedure provisions governing class actions and appeal of interlocutory judgments, including the following:

In class actions, require the trial judge to give written reasons for any judgment granting or denying class certification, if a party requests written reasons within 10 days of judgment.

Make all class-certification judgments appealable as of right, codifying Davis v. Jazz Casino Co., 849 So.2d 497 (La. 2003).

Authorize a trial judge to order a separate trial of insurance-coverage issues, whether or not all parties consent.

Provide that a motion to revive a judgment interrupts prescription on the judgment.

Delete the provision that an interlocutory judgment can be appealed if it may cause irreparable injury, substituting a provision that an interlocutory judgment is appealable only when expressly provided by legislation.

Blanco Seeks to Limit Damages

The Advocate reports that Governor Blanco plans to support legislation that will restore the state and municipal general liability damages cap to $500,000 per occurrence instead of per plaintiff.

Pinch crawfish -- go to jail

House Bil 127, if enacted, will "amend and reenact R.S. 14:67.1(D) and to enact R.S. 14:67.5, relative to theft; to create the crime of theft of crawfish; to define the offense; to provide for penalties; to remove commercial crawfish from the definition of livestock for purposes of the crime of theft of livestock; and to provide for related matters."

Louisiana Living Wills

With the Terry Schiavo situation unfolding in Florida before a national audience, now is the time to take a look at Louisiana laws concerning living wills. According to the Louisiana Hospital Association, a living will, also known as an advance directive, is a legal document that describes the extent of medical treatment that a person desires should he or she be in a coma or similar condition with no reasonable chance of recovery nor ability to participate in decisions about treatment. A living will may also be used to designate who should execute decisions concerning end of life decisions.

Clark Cossé, chief governmental officer and general counsel for the Louisiana Hospital Association, explains in a report by The Advocate that there is a potential for conflict when a patient has not designated someone to make end of life choices. In that case, Louisiana law would give authority to a court-appointed guardian if there was one. Otherwise, the spouse, as long as not legally separated, would make the decision. If there is no qualified spouse, the available adult children would have to agree on what course to follow. If there are no qualified children, the decision goes to the parents, siblings and other relatives.

If a person does make the decision to execute a living will, Tenet Louisiana's Memorial Medical Center reports that the person must notify their physician of the existence of the document. In addition, the living will may be registered with the Office of the Secretary of State. However, this is not required.

A comprehensive look at Louisiana's living will policies and a free copy of a blank living will as provided by the Louisiana Legislature (La. R.S. 40:1299.58.3) can be found here.

Copies of living wills from the Louisiana Hospital Association may be purchased here.

For information concerning the Louisiana Living Will Registry and the filing requirements for living wills, check out the Lousiana Secretary of State's website here.

Insurance Law Update

The Advocate reports on the results of the Legislature's efforts to decrease regulation of insurers in the state. The new law, which allows insurance companies to raise rates up to ten percent without commission approval, has resulted in companies issuing 141 rate reductions accounting for $38 million in savings to consumers. During the same time period, however, insurers also increased rates 372 times, for a total of $195 million , in rate increases. The reaction to the law's success is mixed.

Does the ACLU Know About This?

Today I ran across a quaint statute, R.S. 13:3668: "No member of the religious order called the Saint Ursuline Nuns, established in the City of New Orleans, shall be compelled by any writ or process whatever to appear in any court to give testimony or be examined as witness in any court whatever, but the deposition of such member shall be taken in the convent of the Ursuline Nuns, under such rules, regulations and restrictions as are prescribed for the taking of testimony when the witness resides in any other parish than that in which the suit is pending." I didn't see a similar provision for the Poor Clares or the Dominicans -- does that raise Equal Protection issues?

Amendments to Deposition Procedure

Act 365 amends La. C.C.P. Art. 1443 to require that an objection "be stated concisely and in a non-argumentative and non-suggestive manner," and to require that counsel "cooperate with and be courteous to each other and to the witness and otherwise conduct themselves as required in open court ..."

(0.08% BAC) + (Negligence > 25%) = No Tort Recovery

Act 394 amends La. R.S. 9:2798.4 to provide that no one is liable for damages to a person who operates a motor vehicle or watercraft with 0.08% blood alcohol concentration and who is found more than 25% at fault for the accident.

Legality of Truth Serum Bill Headed to Foti

The Times-Picayune reports that the the Louisiana legislature has passed a bill that requests Attorney General Foti to determine whether death row prisoners can legally be given "truth serum" in an attempt to determine if they committed other unsolved crimes.

Legislators Say the Darnedest Things

Every year, columnist John Maginnis compiles a "compendium of the wit and wisdom of the Louisiana Legislature." Here is this year's installment. (My favorite is by Rep. Ernie Alexander, although Rep. Warren Triche's is pretty good too.)

Raise your Voice

The Louisiana State Senate recently began a pilot program that allows citizens to communicate their positions on issues facing the state using an online system called Share Your Opinions, launched on May 31. Senator Michael J. "Mike" Michot's website is the testbed for this project, which currently allows users to vote for or against a small group of bills currently awaiting action. Links are also provided for the bills' respective legislative history and status (on the main paged). [via beSpacific].

Hate Crimes Technicality?

The Times-Picayune reports that the Gretna man who was the first to be convicted under Louisiana's hate crime has had his conviction thrown out and avoided retrial. The hate crime statute requires that the commission of a hate crime must be linked to another crime, such as murder, battery, rape or arson. Frank Palermo, who is white, was found guilty of placing combustibles and a hate crime. The placing of combustibles conviction was thrown out as unconstitutional, however, because it requires the judge--not the jury--to determine if the arson would have been simple or aggravated. Accordingly, Palermo can only be retried for attempted aggravated (or simple) arson, so the prerequisite is not met for the hate crime statute. The story reports that the Legislature "will be asked to fix the flaw in the hate crime law by including attempted crimes in the list of offenses linked to hate crimes."

Legislation Relevant to Louisiana Attorneys

The April 10th Edition of the Louisiana Bar Today notes that the LSBA's Legislation Committee met on April 2 and identified a number of bills as being of general interest to members of the Association. The LSBA has posted the list in pdf format. Naked Ownership has added links to the relevant legislation.

Senate Bill Summaries

SB105 sponsored by Chaisson
Provides for an increase in the nonrefundable civil filing fee that is credited to the Judges’ Supplemental Compensation Fund

SB118 sponsored by C Fields
Constitutional Amendment provides for nine Supreme Court districts

SB124 sponsored by C Fields
Creates the Louisiana Death Penalty Study Commission to study capital punishment in the state.

SB162 sponsored by C Fields
Constitutional Amendment to limit appellate jurisdiction of a court of appeal to questions of law

SB209 sponsored by Marionneaux
Constitutional Amendment to provide for the appellate jurisdiction of a court of appeal and to provide that appellate review extends only to questions of law.

SB218 sponsored by Marionneaux
Constitutional Amendment to provide that the term of a parish and city court judge shall be six years and the term of a district judge shall be ten years.

SB221 sponsored by Hainkel
Constitutional Amendment to provide for the selection and retention election of judges.

SB224 sponsored by Hainkel
Constitutional Amendment to authorize the legislature to limit damages related to rights affected by coastal wetland conservation, management, preservation, enhancement, creation, or restoration activities.

SB253 sponsored by Dardenne
Provides that any new court cost or fee, or increase in an existing court cost or fee, first be submitted to the Judicial Council for review and recommendation to the legislature

SB254 sponsored by Dardenne
Expands the venue of city courts

SB255 sponsored by Dardenne
Provides for the revival of money judgments by ex parte motion

SB284 sponsored by Dupre
Adds three additional judges to the First Circuit Court of Appeal

SB455 sponsored by Hainkel
Provides for the nomination and appointment of judges and for retention elections.

SB499 sponsored by Schedler
Provides for “thing of economic value” when solicited, accepted or received by a public servant from a person that conducts operations or activities regulated by the public servant’s agency

SB519 sponsored by C D Jones
Adds three additional judges for the First Circuit Court of Appeal

SB760 sponsored by C Romero
Provides relative to legal interest accruing on claims against the state

SB772 sponsored by C Fields
Adds three additional judges to the First Circuit Court of Appeal

SB804 sponsored by Johnson
Requires the operational cost of the state criminal justice system to be funded by the state and return surplus funds from special funds or accounts to the state general fund

SB881 sponsored by Malone
Provides for redistricting of the Louisiana Senate

House Bill Summaries

HB19 sponsored by Frith
Constitutional Amendment which allows judges attaining 70 years of age to complete term of office

HB28 sponsored by Frith
Permits a judge who attains the mandatory retirement age of 70 years to complete term of office and provides for retirement benefits for certain judges

HB86 sponsored by Murray
Constitutional Amendment prohibits a judge from remaining in office beyond 75th birthday

HB486 sponsored by Johns
Provides for limitations on jury trials

HB597 sponsored by Toomy
Provides for legislative approval of the Judicial Compensation Commission’s report on judicial salaries

HB661 sponsored by Bruneau
Constitutional Amendment provides for selection and retention election of judges

HB662 sponsored by Bruneau
Constitutional Amendment provides for qualifications of office for judges

HB729 sponsored by Johns
Provides scope of appellate review for claims against the state

HB738 sponsored by Baldone
Limits the general powers of non-attorney notaries public with respect to certain documents to be used in court

HB801 sponsored by Toomy
Requires the Judicial Council to adopt guidelines for the approval of the creation of new judgeships

HB855 sponsored by Bruneau
Creates the Louisiana Notary Public Examination and Standards Commission

HB857 sponsored by Farrar
Removes certain exemptions from prohibition against knowingly false statements and disclosure requirement, and requires “paid for by” disclosure for certain statements relative to a candidate

HB895 sponsored by Lancaster
Removes the exclusion of certain judicial seats from the definition of “major office” for purposes of the Campaign Finance Disclosure Act

HB935 sponsored by Broome
Provides for a reduction of court costs for grandparents seeking custodial rights of their grandchildren

HB946 sponsored by Johns
Provides relative to legal interest accruing on claims against the state

HB998 sponsored by Gallot
Changes the delays for filing a motion for summary judgment

HB1134 sponsored by Townsend
Provides for the application of the rate of judicial interest

HB1322 sponsored by Fruge
Provides for the right to a trial by jury

HB1676 sponsored by Kennard
The proposed legislation provides for public policy with respect to jury service, provides for waivers and postponements of petit jury service and provides for penalties for failure to serve on juries. The bill also establishes a Lengthy Trial Fund.

Bill Proposes Judicial Review of Proposed Court Cost Requests

The Times-Picayune reports that a bill requiring the review of proposed court costs associated with traffic tickets and other court fines "would be submitted to a special judicial council for review before the Legislature looked at the requests." The bill, which would not require that the Legislature follow the recommendation of the reviewing committee--the Judicial Council of the Louisiana Supreme Court, was approved unanimously by the Senate today. The bill now goes to the House for debate.

Proposed Bill to Limit State Damage Liability

The Times-Picayune reports that drunken drivers and those not wearing seat belts could find it harder to collect damages from state and local governments when they claim that the condition of the roadway was a contributing factor to the accident. The House Committee on Civil Law and Procedure voted 6-3 to pass House Bill 1035. The end of the article provides a comprehensive summary of the bill's provisions.

House Panel Approves Ticket Scalping Bill

The Times-Picayune reports that Lavonne Martin's quest for 2002 Sugar Bowl tickets is what led to the development of House Bill 316, which would legalize scalping in the state. The bill passed the Commerce Committee by a vote of 10-3.

In other action Monday, the Commerce Committee approved:

-- HB 92, by Pinac, to require people selling residential real estate to provide disclosure statements listing any known defects.

-- HB 1183, by Pinac, to authorize the Public Service Commission to study whether to establish a statewide "211" information service, which would help Louisiana residents get referrals for government and community programs.

A "Primer" on Passing Legislation in Louisiana

The Advertiser provides a short course on what it takes to move an idea into the Louisiana lawbooks. "Scratching backs, begging, reasoning, threatening, filtering, cajoling and wining and dining — but not lying."

Legislature Already Beginning Asinine Antics

WBRZ reports that State Representative Almond Crowe (R-Slidell) has drafted a resolution to rescind Louisiana's invitation to French President Jacques Chirac to join President Bush at a ceremony to mark the bicentennial of the Louisiana Purchase. This will get about as far as renaming the Vieux Carre as the Freedom Quarter.

Panel Seeks Tougher DWI Laws

The Times reports that the State DWI Task Force agreed to recommend legislation to raise the minimum age for entering a bar from 18 to 21. Nonetheless, they recognize that passing the measure will not be easy.

State Representative Wants to Legalize Scalping

The Advocate reports that State Representative William Daniel has filed House Bill 316 - a bill that proposes to strike down the law that prohibits scalping tickets in Louisiana. Additionally, the proposed law would allow vendors and promoters to limit the number of tickets sold to any single person or group.

Anyone interested in other examples of such important legislation, or any type of Louisiana legislation for that matter, should check out Louisiana Legal's new site. It promises to bring the latest news from the Louisiana Legislature and to follow pre-filed, pending and passed legislation (with links to the original legislation) accompanied by summaries and commentary.

State Do Not E-mail List?

The Advocate reports that State Senator Joe McPherson has filed Bill 90 that would set up a "no junk mail" list like the Do Not Call list, which bans many unsolicited sales calls to the 320,000 residents on the list. "But the agency in charge of the Do No Call list for phone subscribers fears that stopping "spam" would be far more difficult, and trying to halt the electronic junk mail might even be illegal."

Bill Proposed to Raise Louisiana Minimum Wage

The Times-Picayune reports that House Bill 245, filed by Representative Leonard Lucas of New Orleans, would increase the state minimum wage to $6.15 per hour and require that it remain $1 above the Federal mandate. The same opponents to New Orleans individualized efforts to accomplish the same thing last year have vowed to kill the measure.

Louisiana Sodomy Law Debated

The Advertiser reports that NOLA DA Eddie Jordan has established context to debate Louisiana's sodomy law by saying that he is willing to support the decriminalization of such activity in the home as long as public acts are still punishable as a felony.

Between 1988 and 1995, more than 2,000 people were arrested under the law, according to a study by Dr. John Penny, a professor of criminal justice and criminology at Southern University at New Orleans. Of that number, 98.3 percent of the arrests were against prostitutes and the rest against people performing sodomy in the home, the study found.

Juvenile Justice Overhaul Approved by Commission

The Advocate reports that the Juvenile Justice Commission approved a proposed overhaul of Louisiana's juvenile justice system on Thursday. "The far-reaching proposals include the possible closing of one of the state's four juvenile prisons and the creation of a new state agency for juvenile justice and family issues." The focus of the reforms is to move away from placing juveniles in prisons and toward more effective community-based alternatives.

Supreme Court Ruling Allows LA Sex Offender Registry

The Advocate reports that convicted sex offenders in Louisiana will still be required to register with authorities without first being granted a hearing after the United States Supreme Court upheld similar laws in Alaska and Connecticut. Further, the ruling affirms the right of the states to post such information on the Internet. The Louisiana State Police maintains the Louisiana Sex Offender and Child Predator Registry.

Cain Wants to Give Legislature State Budget

The News-Star reports that Senator David Cain has pre-filed Senate Bill 1, "a proposed constitutional amendment transferring authority for preparing the annual state budget and capital outlay bill from the governor to the Legislature."

New Smoking Legislation Proposed

The Times reports that anti-smoking advocates are preparing to lobby the legislature this spring to move the decision power regarding no-smoking policies from individual restaurant owners to local governments. "Last week Shreveport's City Council unanimously approved a resolution [supporting the effort.], joining Lafayette, Alexandria, Covington and Gibsland "

Sticking it to The Man

The Advocate reports on a novel ideal presented to the State DWI Task Force by state Senator Reggie Dupre. Dupre contends that the state could be better off by violating federal mandates regarding open-container laws and license suspensions because safety dollars awarded by the federal government do not require matching funds, while construction and maintenance funds (which the safety funds would be converted into when the federal mandates are complied with ) require a 20 percent match.

Blocking the Sunshine into State Inboxes

The Times-Picayune reports that Representative Edwin Murray plans to file a bill shielding certain types of communication from state sunshine laws. In response to the recent PAR report, Murray wants to shield e-mails between lawmakers and their constituents.

Letting Sunshine into State Inboxes

The Times-Picayune reports that the Louisiana Public Affairs Research Council (PAR) is calling on state lawmakers to establish guidelines for keeping and allowing public access to government agencies' and officials' e-mail communications. "The president of the Public Affairs Research Council, Jim Brandt, said the organization 'wants to establish that e-mails are public record,' including junk e-mail and nonsubstantial communications such as jokes and birthday greetings. "

The full report can be accessed here.

Lawmakers Considering Louisiana's High Court Costs

WBRZ reports that a special legislative committee is studying the costs associated with the Louisiana judicial system. One of the primary issues under consideration is that there is no uniformity in costs assessed in individual courts and there is no central system for collecting data on court finances. Senator Jay Dardenne said he plans to recommend sending requests for increased court fees to a special judicial council to determine if the increase is needed to pay for a legitimate function of the court. The council would suggest whether the Legislature should approve the measure.

Bill Proposed to Address Drinking Water and Sewerage

The Advocate reports that State Representative Gary Beard is proposing to require that certain business use treated sewage water and pay the same water bills they do today for "fresh" water. The objective is to conserve underground water supplies and to use the funds collected to to help local governments pay for treatment facility upgrades required by the federal government.