Tennessee Federal Court Denies Motion To Compel Seeking Social Media Data

As you may recall, we’ve previously noted that courts are becoming a bit more skeptical of social media discovery requests.

Well, the latest example of this trend comes from a federal court in Tennessee.

In Horsnell v. Young Men’s Christian Ass’n of Middle Tennessee, No. 3:13–1130 (M.D. Tenn. Dec. 1,2014), the Plaintiff alleged violations of FMLA and other statutes as well as a retaliation claim. The court was called upon to review certain discovery requests after the defendant filed a motion to compel. Apparently, in response to a particular discovery request, the Plaintiff produced some limited social media data. Dissatisfied with the response, the defendant filed a motion to compel, and the court found as follows:

By its motion, [Defendant] seeks an order compelling Plaintiff to provide certain nonpublic information contained on Plaintiff’s Facebook and LinkedIn accounts. Apparently, Plaintiff has produced certain limited information publically available on these two social networking sites.

This Court has previously found that an adverse party does not have a generalized right to rummage through information that a party has limited from public view on a social networking site. Rather, there must first be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, a discovering party would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account. The undersigned finds that Defendant has failed to make a sufficient threshold showing to support an order requiring Plaintiff to produce copies of nonpublic information from his Facebook and LinkedIn sites, and to that extent Defendant’s motion to compel further response to Interrogatory No. 13 is DENIED.

(quotations and citations omitted).

And that’s it. No longer a novel issue, the breadth and appropriateness of social media discovery requests is now addressed by courts in two paragraphs.

Keep this in mind, folks.

Man Sues After Choking During Live Fish Eating Contest At Tennessee Haunted House

Don’t you just hate it when a live fish eating contest at a haunted house goes awry after you’ve PAID your $15 to enter the contest?  Apparently, so does a Tennessee man named Cameron Roth.  He has filed a lawsuit against the operators of a Tennessee haunted house alleging that he was hospitalized for four days when he choked on a live fish he ate during one of their contests. The facts are these: Mr. Roth paid $15 to Frightmare Manor in 2013 to compete in a contest at the Haunted House.  The contest involved eating two live bluegill fish.  The suit alleges that “Frightmare failed to remove any of the spines from the bluegill fish” before providing them to contestants.  That would be an interesting feat to remove the spines from fish in a live fish eating contest.  But we digress.  Mr. Roth began choking as the first fish became lodged in his throat.  For those who are curious, this is how big a bluegill fish is:

The lawsuit alleges that Frightmare negligently failed to have any medical workers on hand to supervise the contest and workers did not seek emergency medical help when Roth began choking.  The suit seeks $150,000 in compensatory damages and $400,000 in punitive damages.  If the fish was anywhere close to as big as the one pictured above, this would appear to be a case of assumption of risk.

Call me Justice . . . Captain Justice!

I’ll admit it.  My former life took place in a world where it was uncommon for lawyers to be referred to as “Captain.”  However, it was not some weird lawyer Comic-Con.  Rather, it was the United States Air Force, where most of the lawyers are junior officers known as Captains.   Apparently, there’s a lawyer, Drew Justice of Tennessee, who also wants to be referred to in the courtroom as “Captain” -“Captain Justice,” to be exact.  Mr. Justice is neither a military officer nor a super-hero.  He’s just a criminal defense lawyer with some creativity and a dream.

This bizarre request actually stems from a prosecutor’s request for the judge stop Mr. Justice from referring to the prosecutors as “The Government.”  The rationale being, of course, that everyone hates the government and Mr. Justice was using the term in a derogatory fashion.  Mr. Justice was not pleased with this request.  Rather than simply acknowledging that the prosecution is an arm of the government or that the prosecution’s request implicated the First Amendment, he went a step further and got creative.

Here’s a list of the creative new titles he requested that the Court use if he could no longer refer to the prosecution as “the government:”

  • Rather than “the defendant” his client should be known as “Mister,” “the Citizen Accused” or “that innocent man;”
  • Rather than being called defense counsel or counsel for the defendant, he should be known as “Defender of the Innocent” but conceded that he would also alternatively accept “Guardian of the Realm;”
  • When being referred to specifically by name, he requested to be called “Captain Justice.”

The tongue in cheek nature of his request certainly gets the point across, but it is doubtful that the court found it too amusing.  Still, it is hard not to laugh when reading the conclusion of his filing:

“WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.”

Tennessee Supreme Court Frowns Upon Juror Facebook Messaging State’s Expert Witness

Let’s say you are a juror in a first degree murder case. Some advice: Don’t look up the state’s expert on Facebook and message him. Seems reasonable enough, right? Well, let’s talk about State v. Smith, — S.W.3d —, No. M2010–01384–SC–R11–CD (Tenn. Sept. 10, 2013). That appeal, as the court set forth, concerned “the appropriate response when a trial court learns during a jury’s deliberations that a juror exchanged Facebook messages with one of the State’s witnesses during the trial.”

Sigh.  Here we go again.

During void dire, the attorneys did not ask the prospective jurors if they knew the assistant medical examiner who performed the autopsy and would testify on behalf of the state (even though several or the jurors were employed by the Vanderbilt Medical Center, where the witness had trained). Of course, as is custom, the trial court instructed the seated jurors not to speak with any of the attorneys or witnesses. The trial proceeded as per usual. However, during the jury deliberations, the assistant medical examiner emailed the trial judge the following missive:

I can’t send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

[Juror]: “A-dele!! I thought you did a great job today on the witness stand … I was in the jury … not sure if you recognized me or not!! You really explained things so great!!”

[Medical Examiner]: “I was thinking that was you. There is a risk of a mistrial if that gets out.”

[Juror]: “I know … I didn’t say anything about you … there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.”

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

First of all, yikes. The trial court informed the attorneys of the communication, and the jury ultimately returned with a verdict of guilty. The trial court denied a motion for new trial based on its refusal to permit the defense to question the juror about the improper communications. The court of appeals affirmed. Here’s what the Tennessee Supreme Court said:

Even though technology has made it easier for jurors to communicate with third parties and has made these communications more difficult to detect, our pre-internet precedents provide appropriate principles and procedures to address extra-judicial communications, even when they occur on social media websites and applications such as Facebook.

When the trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State’s witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury’s verdict. The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between [the medical examiner] and [the juror]. This hearing may very well have necessitated calling both [the juror] and [the medical examiner] to testify under oath about their relationship and the effect of the communication on [the juror’s] ability to serve as a juror. Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether [the juror in question] shared any extraneous information with other jurors.

[T]he portion of the trial court’s order that denies Mr. Smith’s motion for a new trial based on [the juror’s] improper extra-judicial communication with [the medical examiner] is vacated. The case is remanded to the trial court to conduct a hearing to determine whether [the juror’s] Facebook communication with [the medical examiner] disqualified him from continuing to serve on Mr. Smith’s jury. Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires [the juror’s] disqualification or whether [the juror’s] misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to [the juror’s] improper extra-judicial communication with [the medical examiner], then the trial court shall grant Mr. Smith a new trial.

The facts of this case demonstrate that this technological age now requires trial courts to take additional precautions to assure that jurors understand their obligation to base their decisions only on the evidence admitted in court. Trial courts should give jurors specific, understandable instructions that prohibit extra-judicial communications with third parties and the use of technology to obtain facts that have not been presented in evidence. Trial courts should clearly prohibit jurors’ use of devices such as smart phones and tablet computers to access social media websites or applications to discuss, communicate, or research anything about the trial.  In addition, trial courts should inform jurors that their failure to adhere to these prohibitions may result in a mistrial and could expose them to a citation for contempt. Trial courts should deliver these instructions and admonitions on more than one occasion.

(Footnotes omitted).

What the heck was this juror thinking? The trial court instructed the jurors not to communicate with witnesses during the course of the trial. This means that even after hearing that instruction from the court, the juror ventured home from the courthouse, logged into Facebook, looked up the medical examiner’s profile, and send him a direct message on that social media site. Gee whiz.

Reader Mail: Lawyer Sues Apple Over Porn Addiction

From time to time, we here at Abnormal Use receive recommendations on potential posts from our dear readers. Typically, readers alert us to wacky product lawsuits or hot coffee accidents. Such cases are right up our alley.

Other times, our readers think highly enough of us to send us cases like this one.

According to a report from Above the Law, a Tennessee attorney has sued Apple seeking protection for his porn addiction. That’s right. Apple created a porn addiction, and our readers thought we would be the perfect ones to write about it. They were correct, we suppose.

At first glance, the suit obviously sounds ridiculous. “Porn” addictions can be bred from anything. It depends on the user, not the vehicle bringing the access. On the other hand, the suit does raise some novel ideas. The plaintiff requests that Apple sell all products with a pre-installed porn blocker which can only be unlocked with a waiver filed with the company. The idea is not completely insane; however, we assume most people would prefer not to leave a paper trail granting them access to pornography. Plus, we would not envy the Apple employee charged with the handling of such waivers, as certainly, that worker would be inundated with paperwork.

Nonetheless, the plaintiff’s suit appears to be misplaced. The actual vehicle for the transmission of pornography in this case is the Internet itself – not Apple products. If Internet access to explicit material is a problem, then the proper target is much larger than Apple. Porn blockers on Apple computers will hardly prevent such access when the Internet is now as accessible as a water fountain.

We will monitor this suit as it moves forward, but we know how this one will probably end. The plaintiff will most likely get a legal lesson on not blaming other for his lack of self-control. If that weren’t the case, then porn-access litigation would snowball out of control (making the asbestos litigation look small by comparison). No one wants to pick up a catalog full of Victoria Secret models wearing overcoats.

(Hat Tip: Jim Beck of the Drug and Device Law blog).

Hot Beverage Lawsuits Reach New Heights

Hot beverage litigation lore now has a new chapter – “Tea, Airplanes, and Bulkhead Seats.” According to The City Paper, a Tennessee woman, Angelica Keller, has sued Southwest Airlines after spilling hot tea in her lap mid-flight. Keller spilled the beverage when attempting to pry loose a tea bag wedged between two cups. Apparently, Keller was seated in the first row of the plane, so she did not have an available drop down table to rest the cups. Before she could unbuckle her seat belt and stand up, the hot tea spread around the seat cushion, allegedly causing her second degree burns. Thereafter, she filed suit against Southwest, alleging that the airline failed to warn her of the hazards of delivering a hot beverage during a flight in a bulkhead seat.

On the one hand, this matter sounds eerily similar to the infamous McDonald’s hot coffee case. Passenger injured while holding a hot beverage in her lap. Burns exacerbated by sitting in the liquid. Facially ridiculous lawsuit to follow. Abnormal Use picking up the story.

On the other hand, this case does have some intricacies that may distinguish it from its coffee predecessors. Notably, due to her mode of transportation, the plaintiff was under the control of the defendant. It is at least arguable that the accident could have been prevented had Southwest provided tables for the bulkhead seats. Moreover, unlike the consumer who purchases hot coffee and is free to go wherever he chooses, an airline passenger confined in a packed seat thousands of feet in the air has no such luxury.

Unlike the hot coffee cases which allege that restaurants are serving an unreasonably dangerous product, this suit alleges that Southwest is negligent for serving hot liquids on a potentially turbulent flight. An interesting concept, that is. Interestingly, the plaintiff does not appear to allege that the spill was caused by turbulence, but rather, by her own conduct.

Regardless of their differences, this suit has one glaring similarity to the hot coffee cases before it – the beverages are meant to be served hot. Users should assume the risk of burns when handling a known (and desired) hot liquid.

Discovery Rule Applies Only To Discovery of Injuries, Not Manufacturer’s Identity, Says Tennessee Federal Court

It’s late November.  Time to start thinking about Thanksgiving!  I’m a Yankee.  I grew up in New York, and not the upstate, rugged, nature-loving part of the state.  No, I grew up near New York City, the concrete-loving, keep-trees-in-their-place part.  So, I don’t quite understand the joy, the pride, the utter elation that some in my adopted hometown of Greenville, South Carolina feel when they shoot and kill their own food, even if it is their Thanksgiving turkey.  Nope, I let Butterball do all the hard work for me.

The plaintiff in Willis v. Wal-Mart Stores, Inc., — F. Supp. 2d —, No. 1-09-0095, 2011 WL 4449647 (M.D. Tenn. Sept. 26, 2011),  however, is not like me.  Apparently, he liked to go out into the pre-dawn wilderness and bring home the bacon.  Or turkey.  Or venison.  Or whatever he was hunting when on November 26, 2008, the tree stand he was sitting in collapsed and he fell to the ground.

On November 24, 2009, he filed a complaint against Wal-Mart, which sold the tree stand, and John Doe manufacturer, alleging tortious misrepresentation, defective condition, negligence,  breach of warranties, failure to instruct, strict liability, failure to inspect, and failure to warn.  A few months later the complaint was amended to add defendant Hunter’s View, Ltd. as the named manufacturer.  On October 27, 2010, the plaintiffs were allowed to amend their complaint a second time, adding Ameristep Corporation and B&B Outdoors, Inc. as manufacturers of the tree stand.  Eventually, the plaintiffs admitted that Hunter’s View did not manufacture the stand.

The plaintiffs claim at one point their counsel contacted Wal-Mart in an attempt to determine the identity of the manufacturer, but Wal-Mart didn’t cooperate.  The plaintiffs did an Internet search and found Ameristep.  Eventually, the company did provide five names of tree stand manufacturers sold at the applicable time, of which Ameristep was one.

Both Ameristep and B&B filed summary judgment motions, alleging that the case against them was barred by Tennessee’s one year statute of limitations and arguing that the plaintiffs could have determined the correct manufacturer within the statute’s time frame.

As the Court notes, “under federal law, the statute [of limitations] begins to run when plaintiffs knew or should have known of the injury which forms the basis of their claims.”  However, as the parties acknowledged in this case, the discovery rule applies to the discovery of injuries.  What is less certain is whether or not the discovery rule applies to a plaintiff’s knowledge of the identity of the proper defendant, because a split of authority exists on this very point.

After considering two separate lines of cases, the Court in this case held that the discovery rule applies only to the discovery of injuries, not the discovery of the proper defendant’s identity.  Therefore, “absent fraudulent concealment or misrepresentation . . . the statute of limitations began to run on Plaintiffs’ claims when Plaintiffs discovered their injury, not when Plaintiffs correctly identified the manufacturer of the product.”  The Court also held that the plaintiffs had a duty to investigate more diligently the identity of the defendant, and failed to do so.  Based on this reasoning, the summary judgment motion of the two manufacturers was granted.

Expert Used to Deny Summary Judgment in Kitchen Fire

I think all lawyers are nominal conspiracy theorists. What else does the law school environment teach other than not to trust anyone at any time, and that most people – probably all – people are out to get you? At the risk of being untoward, but last month’s Godwin v. Electrolux Home Products, Inc., No. 2:09-0106, 2011 WL 1357691 (M.D. Tenn. Apr. 11, 2011) [PDF] makes you wonder what a plaintiff (or his subrogee) can pull out of his hat.

The crux of the case involves that perilous issue: expert testimony. The court, in assessing the admissibility of such testimony, ruled that the Plaintiff’s expert could testify as to the source of a fire based on burn patterns, and rightly so, as the expert was qualified and burn patterns are a reliable source of data to use in an house fire. Thus, Plaintiff’s expert’s testimony precluded summary judgment in favor of the defendant. But something seemed a little off in the facts.

Frances Godwin’s home is destroyed by a fire. There seems to be no dispute that the fire originated at the stove. However, the stories of the reason for the fire diverge. I assume that Godwin’s insurer brought the action as a subrogee, and that’s what makes this case particularly interesting. If Godwin burned down the house because of her own negligence, then the insurer is out the money paid for the claim. But if there is some chance that a product defect contributed to the fire, then the insurer can spread the misery around a bit. The plaintiff put forth a theory that the stove in the home was defective, but the defendant put forward these facts:

A dispute arises as to the timing of the fire alarm at Plaintiff’s residence. According to Plaintiff, the fire alarm occurred at approximately 5:35 p.m., to which two different fire departments responded. (Docket Entry Number 49, Plaintiff’s Responses to Defendant’s Statement of Material Facts at ¶ 2). The fire department report for the Cumberland County Fire Department reflects that the fire alarm sounded at 7:11 p.m., Jay Schienost, Plaintiff’s daughter, places the fire starting between 5:30 and 5:45 p.m.

Defendant cites the testimony of Jimmy Barnes, a volunteer firefighter for the Cumberland County Fire Department, who responded to the fire. Plaintiff allegedly stated that she had cooked dinner on the stove a couple of hours before the fire and had left some pots and pans on the stove top. Barnes testified that there were pots and pans on the top of the range, and that one of the stove’s top knobs had been left in the “on” position. The Cumberland County Fire Department concluded that the fire “started from something left unattended on the range.”

This seems like a pretty clear case of homeowner negligence. In a cunning move, the insurer hired a fire investigator, who attributed the fire to a defect in the Electrolux stove. (There was some testimony about the self-cleaning mechanism not working properly prior to the fire.) The plaintiff hired a mechanical engineer to opine on the cause of the fire, who stated that the fire was not caused by cooking. Summary judgment denied. In so many other cases, we see ill-qualified experts who cannot withstand Daubert. In this case, careful expert selection helped to create an issue fact resolvable only be a jury, and probably helped Godwin’s insurer recoup some of the loss on the home. Congratulations to Godwin’s insurer in using a slick litigation strategy to get past summary judgment. Whether or not the fire was caused by Godwin’s negligence, perhaps the insurer won’t bear the entire loss. Creation of fact seems to be a fine form of risk spreading.

Criminal Act Ruled Unforeseeable

Now that summer is unofficially over (at least here in South Carolina, where heat and humidity tend to stick around until October), this may not be the best time for an amusement park post. But the Tennessee Court of Appeals recently affirmed a grant of summary judgment worth looking at. Pictured above is an amusement park ride known as the Hawk, which spins around a fixed pivot point. The ride was manufactured by an Italian firm, Zamperla.

As detailed here, in 2004, June Carol Alexander fell to her death when the Hawk malfunctioned. The Hawk was installed by Zamperla at Rockin’ Raceway in 1998, and the last contact that Zamperla had with Rockin’ Raceway was in 2000. Truncating the facts, Rockin’ Raceway had hired a general manager, Stan Martin, who, for reasons not apparent, intentionally rewired the Hawk to bypass its safety systems, so that it would work even when the safety harnesses were not properly engaged. In July 2003, there was a close call with a patron, and in 2004, Ms. Alexander was killed.

In an apparent attempt to go after the deep pocket, the plaintiff’s estate dismissed Rockin’ Raceway and Mr. Martin without prejudice to pursue an action solely against Zamperla. The trial court granted Zamperla’s motion for summary judgment, and, in Alexander v. Zamperla, No. E2009-01049-COA-R3-CV, 2010 WL 3385141 (Tenn. Ct. App. August 27, 2010) [PDF], the court of appeals affirmed.

The plaintiffs’ basic argument, in negligence and strict liability, was that this criminal act was foreseeable, and that a design allowing such a criminal act to bypass the ride’s security was foreseeable. Based upon the expert discovery in the case, the court ruled that the plaintiffs’ had not shown any genuine issue of material fact. According to the plaintiffs’ expert, the ride’s safety system was state of the art when it was installed. In addition, no witness could recall ever seeing an incident like this, or anything about Mr. Martin’s background that would have given anyone probability to expect anything like this.

Zamperla is a reminder for manufacturers to affirmatively monitor customers and the news to the extent possible for potential misuses of products that plaintiffs’ attorneys will try to attack as reasonably foreseeable. With some better (more favorable or better thought out) expert discovery, the Alexander plaintiffs could possibly have gotten by summary judgment by introducing some evidence that 1) Martin’s conduct was foreseeable or 2) the Hawk’s design was defective by permitting such manipulation by Martin. Defense lawyers know what happens when a case with bad facts gets in front of a jury. In any event, even in these lean economic times, manufacturers would do well not to forget to monitor the news for “foreseeable” alterations of their products.

The Ultimate Disguise Might Win a Halloween Costume Contest, But It Won’t Win Points With a Judge

In our practice, we have definitely encountered more than one deponent who, upon learning that his or her deposition was going to be recorded by videotape, was less than thrilled by the prospect. Fortunately for us, we have never seen someone like Joseph P. Bertand, a plaintiff who went to extraordinary lengths to avoid giving a deposition in his lawsuit. See Bertrand v. Yellow Transp., Inc., et al., No.: 3:08-01123, 2010 WL 2169499 (M.D. Tenn. May 28, 2010), . While Bertrand is an employment law case, we found his antics so amusing that we had to share.

Mr. Bertrand, acting pro se (which will be no surprise to anyone after reading the order issued by the District Court in this case), filed a litany of claims against the defendants arising from what he contended was his retaliatory termination from his employment with Yellow Transportation. He complained of racial discrimination, sex-based discrimination, national origin discrimination, violations of the Family and Medical Leave Act, defamation and sexual harassment. I feel certain that at the very outset of this lawsuit, there was little doubt that anything about his case would go smoothly. After Mr. Bertrand repeatedly tried to unilaterally notice depositions rather than consulting with opposing counsel as a courtesy, the Court issued an order requiring that the parties cooperate with each other in scheduling convenient dates for depositions. Pursuant to the order, and after consultation, Mr. Bertrand agreed to be deposed on October 6, 2009. Several days after receiving his deposition notice, however, Mr. Bertrand realized that it provided for the videotaping of his deposition, prompting him to notify defendants of his objection.

Mr. Bertrand was not satisfied with defendants’ explanation that they were allowed to take his deposition by videotape, and he filed a motion for a protective order against the videotaping, complete with 67 pages of documents. Among Mr. Bertrand’s objections were references to elusive “sealed agreements” that he had with defendants regarding the recording of depositions, suspicions that the defendants would post the video on the world-wide web for all to see, or even that defendants could steal his identity once they had his image. Despite multiple attempts to contact Mr. Bertrand without success regarding his motion and no showing of a reason why the deposition could not be videotaped, the Court ordered that his deposition proceed.

On October 6th, Mr. Bertrand dutifully appeared as scheduled, albeit wearing all black and several layers of clothing, with the outermost garment appearing to be a large nylon athletic top with a hood that he donned on his head. Mr. Bertrand also wore a large black, bushy wig covering his entire forehead down to his black sunglasses, a fake bushy mustache and a beard. In all, Mr. Bertrand’s face was completely hidden, with his disguise even impeding his ability to speak as he had to keep moving his false mustache out of his teeth. The only victory after 40 minutes of negotiations was to get Mr. Bertrand to remove his sunglasses. The deposition was suspended and later followed by a Motion to Dismiss filed by the defendants as a discovery sanction or, alternatively, for a Motion to Compel Mr. Bertrand’s deposition.

Mr. Bertrand’s response (no surprise here) told a very different story. He noted that the videotaped deposition might have been a pornography filming session masquerading as a court ordered deposition! He even claimed that the defendants’ attorney wanted to sexually harass him by begging Mr. Bertrand to remove some of his clothing and hair, which Mr. Bertrand claimed to take as unwanted sexual requests. Among his myriad of other excuses were complaints about the age and quality of the video equipment and that the lighting was extremely bright and caused heat-induced headaches.

While the Court did not dismiss the action at that time, it entered an order compelling Mr. Bertrand to appear for a videotaped deposition in the judge’s chambers on a mutually agreeable date within 30 days of the order. The next 30 days passed, however, without any contact with the Court to schedule the deposition in chambers, whereupon the defendants again filed a Motion to Dismiss. The Court learned that during that 30-day period, Mr. Bertrand filed five motions calculated to delay or thwart his deposition, including a motion to allow him to face away from the video camera and “blinding” lights to avoid the high heat, thermal radiation, electromagnetic radiation, and black body radiation and to protect his eyes from at least temporary retinal burn, welder’s flash and snow blindness. Another motion sought to prevent the defendants from setting the video to music or to filming in color. Further objections were based on health reasons, including high blood pressure and a non-cancerous growth on Mr. Bertrand’s eye. Naturally, he failed to explain how those conditions would impacted by a videotaped deposition.

Mr. Bertrand’s actions finally led to the dismissal of his lawsuit on May 28, 2010. The reasoning of the Court is instructive to practitioners encountering difficult litigants. The Court reasoned that the plaintiff had disobeyed multiple discovery orders and had abused the judicial process by filing multiple frivolous motions. The frivolous motions were held to be akin to abuse of the judicial process from the filing of frivolous lawsuits. Each of Mr. Bertrand’s filings had little to do with the merits of the case, but instead related to tangential issues.

While we are certain that the defendants and their counsel are now breathing a long sigh of relief, we would wager that they may not have heard the last of Mr. Bertrand. He certainly does not strike us as a quitter!

We often fondly reflect back on our own tales of strange encounters and unusual antics by opposing parties and do not tire of telling those war stories (Like, for instance, our deposition during which a widow proceeded to carry on a conversation with her husband’s ashes, which she brought with her in a duffel bag, and the time when a deponent proceeded to “diaper” an urn containing the ashes of a deceased pet monkey. Yes – Those are both true stories.) We are sure that defense counsel in Mr. Bertrand’s case will be telling this story for years to come. We know that we would.