Speaking of Social Media Discovery, A New Texas Case On Just That

We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.

Fresh From Texas: The Print-A-Gun Project

As a former Texas resident, I can attest to the fact that Texans love their guns.  Now, with 3D printers becoming more readily available, a University of Texas at Austin student decided that the most logical thing to do is print a gun and then share the plans on the Internet.  UT law student Cody Wilson claims he is roughly three weeks away from using a 3D printer to printing a gun, the plans for which he will share online.  It seems a regulatory and legal firestorm will not be far behind.

A 3D printer is a machine that creates three-dimensional solid objects from digital designs.  It essentially combines thin strips of metal or plastic resin to make solid parts.  Once printed, the user can take the parts and combine them to make mechanical objects such as a clock.  This technology sounds pretty cool, but it obviously raises a host of issues in the realm of intellectual property.  However, these IP theft issues are nothing new.  The music industry has been facing them since the era of blank cassette tapes.

But 3D printers also present a whole knew Pandora’s Box of legal problems.  While it has been legal to manufacture firearms for your own use, it has been cost prohibitive and difficult to make anything beyond a glorified toy. Now, people such as Cody Wilson can make a copy of the parts of a gun and then with a little reassembly . . . Voila!  A high quality gun with no serial number that the government has no idea even exists.  No hassle with age restrictions or background checks.  No worries about those silly limits on what types of guns you can buy (e.g., no fully automatic weapons).  Essentially, with 3D printers, individuals can make weapons that completely eviscerate gun control laws.

It also raises interesting products liability issues.  Let’s say someone puts the design plans on the Internet for a Glock 45mm handgun.  Then say someone “prints” the gun and assembles it.   After initially functioning properly, it explodes in the shooter’s hand.  Who faces liability?  Is Glock on the hook if it was a design flaw? Is the printer manufacturer on the hook if one of the parts failed to print properly?  Is the person who uploaded the plans liable if something was amiss?  You get the idea.

This brings us back to Cody Wilson and his “print a gun” project.  Printing guns is not a new idea.  In fact, someone has already created one “printed” gun by printing some parts and combining them with other “non-printed” parts.   Wilson, on the other hand, wants to “print” the whole gun just to prove it can be done.  But then he wants to release the gun design, which has been dubbed “the wiki weapon,” so that it can be easily shared online and recreated.

Wilson told The Daily Texan that the underlying reason for the project was to send the message: “Don’t just sit around like we have been doing for hundreds of years writing a thesis about the perfect utopia or something.  Make it.”  Leave it to a Texan to envision a utopia that involves unlimited access to guns that magically appear from a printer.

Seriously, though, with all the recent controversy around gun ownership and gun laws, it is surprising that this issue has not garnered more attention.



New Kids (Toy) on The Block: Water Balz

We recently reported on the Consumer Product Safety Commission new safety ban on Bucky Balls.  Well, now, there’s a new allegedly “dangerous” toy ball on the market.  This time, it’s a product called Water Balz, marketed by DuneCraft Inc.

These brightly colored balls are about the size of a marble, but they can grow to the size of a racquetball when placed in water.

You can watch the product in action here.

What makes Water Balz so “dangerous?”  Well, much like the Bucky Balls, they don’t mix well with toddlers who treat them as food.  Two Texas parents recently found this out when their toddler ingested one of her older sister’s Water Balz.  When the toddler started having stomach problems, the parents suspected she had eaten one of the Water Balz.  Their concerns grew when they read the label, which explained that the balls expand up to 400 times if placed in water.  The parents took the girl to the hospital, but over the next 48 hours, the girl’s belly grew bigger and bigger, and her symptoms didn’t resolve.  Finally, the doctors operated.  In so doing, they cut open her intestine and discovered a bright-green Water Balz nearly an inch and a half across. Reportedly, the young toddler has fully recovered.

For now, no lawsuits have been filed over Water Balz.  We suspect that will change in the future.  Water Balz again raise the age old question for toys that cause injury.  Namely, whether the injuries are due to some inherently defective nature of the product or poor parental supervision.  I don’t think anyone would dispute that ingesting a chemical ball designed to expand in water creates a substantial risk of harm.  But the real question is, given that the product is not intended for ingestion, is it an unreasonably dangerous product?

Obviously DuneCraft’s CEO, Grant Cleveland, doesn’t believe Water Balz are unreasonably dangerous.  He told Reuters that said he was sorry to learn of the incident, but placed the blame squarely on the parents.  Said he:  “An eight-month-old has no business being near that product. Trying to turn it in to a public risk is absurd.” He also noted that the Water Balz product already carries warnings on the label and that the product is only recommended for kids over 3 years old.

I guess we’ll have to wait and see what happens.  It is not surprising, however, that some attorneys have already put out the APB for Water Balz plaintiffs.

Mechanical Bull Tosses Rider, Prevails in Court

“Man goes to bar.  Man consumes alcohol.  Man rides mechanical bull.  Man falls.”

A familiar story to anyone who has ever visited a Texas-style honky tonk.  The synthesis of alcohol and a simulated rodeo is difficult for anyone to resist.  Unfortunately, the combination can also lead to embarassing falls and, in some cases, injury.

Sounds like the makings of a good lawsuit, right?

In Thom v. Tonk, No. 03-11-00700-CV (Tex. App – Austin, Aug. 30, 2012), a Texas man filed suit against Rebel’s Honky Tonk after injuring his back after falling from the bar’s mechanical bull.  The man signed a release before riding the bull but failed to disclose his chronic back condition to the operator.  Nevertheless, the man rode the bull, found himself thrown from it, and fractured two vertebrae in his back.

The trial court granted the bar’s motion for summary judgment on the basis of release and assumption of risk.  On appeal, the man argued that the release was inconspicuous and that actual knowledge could not replace the requirement that the release be conspicous.  However, the Austin Court of Appeals found that the release’s title, “PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK,” left little doubt as to the document’s purpose.  Furthermore, the man testified at his deposition that he understood that the release was a waiver in the event he was injured.  So there goes that argument.

Notwithstanding his signature on the release, the man also argued that because he did not read the document, he could not have known the risks involved in riding the bull.  But then again, the man did testify that before mounting the bull, he did not witness anyone ride without falling.  And, of course, this is Texas, so undoubtedly the man has witnessed a rodeo a time or two.  In any event, the court was unpersuaded, holding that one is presumed to a know the contents of a contract that one signs.

A difficult sale it is to contend that one did not appreciate the risks of riding a mechanical bull.  Unlike the rodeo, the purpose of the mechanical bull is more than an 8-second ride.  The end-game is the fall.  Never has a mechanical bull operator thrown his hands up after a customer’s short stint on the bull saying, “Ok, Ty Murray.  I give up.  You are too good.”   You get on the mechanical bull to get tossed and to provide a good laugh for the crowd.

Injuries are obviously no laughing matter.  But, in this case, mechanical bull suits belong in the courtroom like a bull belongs in a china shop.

The Journal of Frivolous Tort Claims: Carrillo v. The Dallas Cowboys (Post 2 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Steve’s views, while yesterday, as you may recall, we shared Nick”s thoughts. We hope you enjoy reading about it as much as we did.]


The Dallas Cowboys were sued last week by Plaintiff Jannelle Carrillo, who alleged that she sustained third-degree burns while sitting on a bench outside the stadium before a preseason game in 2010. The allegations of the complaint, which is linked here, speak for themselves. The bench in question was made of black marble, and “was uncovered and openly exposed to the extremely hot August sun. The combination of the nature of the black, marble bench and hot sunlight caused the bench to become extremely hot and unreasonably dangerous. No signs were posted at or near the bench warning that it was too hot for persons to sit on.” It is alleged that as a consequence of the unreasonably dangerous condition of the bench, “plaintiff suffered third degree burns to her buttocks,” which required her to undergo hospitalization and skin grafts that have left her disfigured.

Ms. Carrillo’s injuries are no laughing matter. But the fact that she would try to hold the Cowboys franchise accountable is utterly preposterous. The sun is hot. Things left out in the sun, in August, in Texas, get hot. Are we really supposed to believe that Ms. Carrillo needed a written warning about any of this? Please.

But let’s give her the benefit of the doubt. Let’s assume she didn’t know that the sun made stuff hot. It seems to me she would have figured out that the bench was hot approximately 1 split second after she sat down. Why not just stand up? The complaint doesn’t say how long Ms. Carrillo continued to sit on the bench, but I’m willing to bet she didn’t stand up for a while. I bet she kept on sitting there, complaining to her friends and anyone who would listen, “Man, this bench is hot.” Meanwhile, her goose was slowly getting cooked.

Generally, there is no duty to warn folks against open and obvious dangers, and dangers – to the extent this bench presented one – don’t get much more open and obvious than this. It is my prayer to the God of justice and wisdom that this case is thrown out on a motion to dismiss.

Jerry’s World, Sun Subject of New Texas Suit (Post 1 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Nick’s views, while tomorrow, we’ll share Steve’s thoughts. We hope you enjoy reading about it as much as we did.]

In 2009, Jerry Jones and the Dallas Cowboys unveiled the billion dollar Cowboys Stadium in Arlington, Texas.  With its plethora of unique and extravagant features, the stadium is the closest thing the National Football League has to a work of art.

Now, it is the subject of a lawsuit.

When we here at Abnormal Use heard that “Jerry’s World” was involved in a civil suit, we just knew it had to be some devastating accident involving the 2,100 inch video screen suspended over 60 yards of the field.  (Seriously, how do they keep that think hanging?)  To our surprise, however, it is not the monstrous video board at the center of the personal injury litigation, but, rather, a bench.  A simple black marble bench.

According to reports, a Texas woman has sued the Dallas Cowboys and Jerry Jones in the Tarrant County District Court after she allegedly sustained third-degree burns on her buttocks after sitting on the marble bench.  The woman, attending a Cowboys scrimmage in August 2010, sat on the bench in 100-plus degree temperatures for an undisclosed amount of time while wearing full-length pants.  She alleges that the combination of the black marble and the hot sun made the bench extremely hot and unreasonably dangerous – a condition about which the Cowboys allegedly failed to warn her.

The words “extremely hot and unreasonably dangerous” immediately conjure up thoughts regarding the infamous hot coffee litigation.  Like freshly brewed coffee, a black object basting in 100 degree temperatures will be hot.  Common sense and logic would suggest that the woman bares at least some responsibility for her injuries.

Unlike hot coffee, however, there may be issues of fact regarding whether the common person should appreciate the risk of sitting on a bench made of marble as opposed to a less heat-absorbent material.  Nevertheless, it seems a bit ridiculous to require a warning that a bench resting in the Texas sun may be hot.  Should they also warn that a bench sitting in the rain may be wet?

Of course, the naysayers will suggest that Jones obviously had the money to purchase a sign or design an external bench out of a non-heat-absorbent material.  But should he have to?  This is a marble bench – clearly not a case of a company skimping on costs by cutting safety measures.

When a $158 million settlement is a “Victory”

On Thursday, January 19, mega-company Johnson & Johnson and the State of Texas reached a settlement for the bargain price of $158 million in a Medicaid fraud lawsuit.  The allegations?  That J&J committed Medicaid fraud by engaging in illegal marketing activities and providing kickbacks to boost sales of the anti-psychotic drug Risperdal, used primarily to treat schizophrenia and bipolar disorders.  The suit also alleged that J&J told doctors that the drug could be used to treat children, for which it did not have FDA approval.  Oops.

And why was $158 million a bargain?  Well, consider what has happened to the company in other states that have also sued J&J on similar theories.  In Louisiana, the Court ordered the company to pay $258 million; in South Carolina, the bill was a cool $327 million.

As reported by the Washington Post, then, $158 million doesn’t look so bad:

“For Johnson & Johnson, it’s a mighty easy result,” said Eric Gordon, a clinical professor at the University of Michigan’s Ross School of Business. “The legal team at Johnson & Johnson are doing high fives.”


“Objection, Form” v. “Object to the Form”

As lawyers, and more importantly, as bloggers, we here at Abnormal Use are huge nerds.  Accordingly, we sometimes lose sight of the forest for the trees and develop silly idiosyncrasies based on our interpretation of legal minutiae.  Today, we write of one such quirk: objections to the form of questions at depositions.

This writer attended Baylor Law School, an institution which focuses on practical education and teaches discovery and deposition techniques in a mandatory third year series of courses.  It was then that this writer learned of Texas Rule of Civil Procedure 199.5(e), which provides that objections to the form of a question must be made at depositions. All other objections are reserved. Form objections shall be made using the following statements:  “Objection, leading” and “Objection, form.”  Note that the terms contemplated by the rules are in quotation marks.  In its own words, the rule itself provides:

Objections to questions during the oral deposition are limited to “Objection,leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, non-responsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court.

Practicing several years in Texas, this writer always made the objections as stated in the rule.  It would have been splendidly nerdy to argue to a trial court that an opposing party had waived an objection by not stating it as it was quoted directly in the rule (which the rule itself states expressly).  What hypertechnical procedural fun that would have produced! After all, the use of quotation marks suggests that the objection itself must be verbatim and not a paraphrase, and the rule provides that “objections are waived if not stated as phrased.”  However, the judicial scorn likely to be prompted by that argument always deterred this writer.

But here is the aforementioned  nerdy pet peeve.  Throughout our career, in whatever state, and in whatever jurisdiction, this writer has always said “Objection, form.”  Call it habit, call it nostalgia, call it blind adherence to an old rule, call it what you will.  Inevitably, though, when the transcript arrives back from the court reporting service, our objection is almost always transcribed as “Object to the form” which, of course, would have been (presumably) waived under the Texas rule.  Perhaps the court reporters simply have some type of button or macro on their systems which inserts a form objection on to the record irrespective of the precise manner in which the attorney articulated it.  That obviously would not work for longer detailed objections, but for basic form objections, maybe that is the reason.  However, we have always wondered why it is that our “Objection, form” never seems to survive the day of the deposition.

Hey, we told you it was a nerdy pet peeve.  You were warned.

Defense Verdict in Jamie Leigh Jones Case

Yesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.  See Jones, et al, v. Halliburton Co.,  et al, 4:07-cv-02719 (S.D. Tex.). Jones sought damages against the company in the amount of $145 million, claiming that KBR created a hostile sexual work environment at her barracks in Iraq.

The Houston Chronicle reports:

Jurors in a federal courtroom on Friday rejected a former Conroe woman’s claims that she was drugged and raped by several Kellogg Brown & Root firefighters while working for the company in Iraq in 2005.

The jury also rejected Jamie Leigh Jones’ claims that the former Halliburton subsidiary committed fraud by “inducing her to enter into an employment contract.”

By answering “no” to those two questions, the jurors rendered the other 12 questions in the jury charge moot, bringing an end to the month-long trial of Jones’ lawsuit.

We mention this verdict today because the Jones lawsuit was prominently featured in Susan Saladoff’s recent documentary, Hot Coffee, which we reviewed previously here. Specifically, the film chronicled Jones’ inability to have her claims heard by a jury due a mandatory arbitration clause in her employment contract (although we here at Abnormal Use did not explore the Jones case in our review because our interest in the film was prompted primarily by its discussion of the Stella Liebeck McDonald’s hot coffee case).  In 2009, the Fifth Circuit ruled that Jones did have the right to have her case heard by a jury. See Jones v. Halliburton Co., 583 F.3d 228 (2009).

Mark Cuban’s Motion for Summary Judgment (And What It Means)

By now, you have all seen the infamous motion for summary judgment filed by Mark Cuban in the law suit brought by a company alleging that Cuban had mismanaged the Dallas Maverick basketball franchise.  The four page motion – which can be found here – is brief and amusing, as it uses imagery in the body of the motion to suggest that the claims against Cuban are baseless. (Apparently, because of its novelty, some law professors are already teaching the motion in class.). On its second page, the motion includes a large photograph – which takes up nearly half the page – of Cuban and the Mavericks celebrating their recent national championship win.

Cuban’s motion reminds us of a post we did late last year encouraging the use of such tactics.

Back then, in a post on modernization of judicial opinions, we noted that attorneys haven’t traditionally included images in motions and wrote as follows:

[T]his is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.

These days, with so much information on the Internet, with so many visual learners, with so many maps, photographs, schematics, images, and so many other types of non-prose information, we believe that embedding images into one’s motions is a growing trend and may in fact help and simplify issues.  In a products case in which the product at issue is relatively obscure, a photograph accompanied by a brief description can speak volumes more than a lengthy technical treatise.  If location is an issue in the case, then a photograph of a scene might be appropriate, provided that the photograph is, of course, favorable to your argument.  If the distance between two sites is at issue, then a Google map screen capture can be input into the motion itself to showcase the distance at issue. There are many, many options.

We as lawyers use words by trade, but often we use far too many of them.  The readers of our motions and briefs have much to do and many other items to review.  We suspect that they, most of all, would appreciate efforts to simplify the briefing process.  After all, a picture is worth a thousand words.

Just ask Mark Cuban.