Kentucky Law Review

FRE: Case Highlights Inadvertent Disclosure Standards Under FRE 502(b)

From Federal Evidence Blog:

Case Highlights Inadvertent Disclosure Standards Under FRE 502(b)

Court orders return of materials protected under the work-product doctrine after concluding disclosure was inadvertent and reasonable steps were taken to rectify the situation, in Coburn Group, LLC, v. Whitecap Advisors LLC, __ F.R.D. __ Case No. 07 C 2448 (N.D. Ill. Aug. 7, 2009)

The new attorney-client privilege rule, , was enacted nearly one year ago, on September 19, 2009. See President Signs New Attorney-Client Privilege Rule (FRE 502). Since then, there have been few published cases applying the new rule. A recent decision in the Northern District of Illinois demonstrates the application of the inadvertent disclosure provision. Read more

Other FRE 502 Resources

The Coburn Group case provides a recent demonstration of the new inadvertent disclosure standards under FRE 502(b). For an article discussing FRE 502, see "Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)," 5 Fed. Evid. Rev. 1454 (Oct. 2008). For more information concerning FRE 502, see FRE 502 Resource Page.

FRE: Sixth Circuit Joins Others On FRE 804(b)(3) Statements Against Penal Interest As Non-Testimonial Under Crawford

From Federal Rules Blog:

Sixth Circuit Joins Others On FRE 804(b)(3) Statements Against Penal Interest As Non-Testimonial Under Crawford

By Editor on Testimonial Evidence

Sixth Circuit SEAL.gif

Another circuit finds a statement against interest under FRE 804(b)(3) is non-testimonial; Cooperating witness’s tape recording of co-defendant bragging to other inmates about his and the defendant’s role in the charged robbery was non-testimonial because “a reasonable person in the declarant’s [co-defendant’s] position” would not anticipate his statement being used against the defendant in investigating and prosecuting the crime, in United States v. Johnson, __ F.3d __ (6th Cir. Sept. 18, 2009) (No. 08-1662)

Federal: ACLU Lawyers Friedman and Sharp awarded $44,000 in atty fees for fighting Ten Commandments display

LOUISVILLE, Ky. (AP) - A federal judge has awarded attorneys' fees to the plaintiffs in a lawsuit over a Ten Commandments display at a county courthouse.

U.S. District Judge Joseph H. McKinley awarded the more than $44,000 in attorney fees to the plaintiffs - Raymond Harper, Ed Meredith and the American Civil Liberties Union of Kentucky - who won an injunction against displaying the commandments in the county courthouse. They were represented by ACLU attorneys David Friedman and William E. Sharp.

"Because there are no special circumstances which would render an award of attorneys fees unjust, the plaintiffs are entitled to an award of attorney fees...," McKinley wrote.

Friedman and Sharp represented Harper and Meredith, who sued in 2001 claiming the intent of displaying the commandments in a public building was religious and violated the Constitution. In March, McKinley granted a permanent injunction barring the display of the Ten Commandments as part of a "Foundations of American Law and Government" display.

No public money was used to set up the display in the county courthouse in Leitchfield, about 75 miles southwest of Louisville.

FEDERAL: "Judge denies injunction to stop kindergarten busing"

From Courier Journal:

Judge denies injunction to stop kindergarten busing

U.S. District Judge John Heyburn rejected a motion Tuesday to halt 2009-10 kindergarten assignments under Jefferson County Public Schools' new assignment plan — but legal challenges remain.

CRIMINAL CASES: James Earhart appointed by court to represent Karen Sypher

Courier Journal story:

Sypher back in court over attorney issue

A woman accused of trying to extort millions of dollars from University of Louisville men's basketball coach Rick Pitino told a U.S. District Court judge in Louisville Friday that she can't afford to pay an attorney to represent her. * * *

Magistrate Judge James D. Moyer assigned a public defender for Sypher, James Earhart, who is a former Assistant U.S. Attorney, telling her the court would pay his fees.

“Thank you so much,” said Sypher, who at one time teared up when Moyer asked her about having minor children.

Earlier this month, Thomas Clay, who had represented Sypher, asked to withdraw from the case, citing irreconcilable differences with his client.

Moyer told Sypher that Earhart is an experienced attorney who can represent her well “but needs your cooperation as a client. It's a two-way street.”

FEDERAL: Will bid-rigging case result in another judicial recusal?

A few weeks ago I remarked that the number of judicial recusals in the Leonard Lawson bid rigging case was sounding like a Commodores' song, "One, Twice, Three Times a Recusal".  Actually, the tune is more like Queen's "Another one bites the dust" as the funky finger of foreknowldge may fall upon Judge Forrester who is the father-in-law of highway industry lobbyist, relatively speaking that is. 

See earlier post at Are the recusals in the bid rigging case of robed roulette or recusal round-robin event? Now its Judge Karl Forester!

Story from the Courier Journal:

Latest judge in Lawson case is father-in-law of highway lobbyist

By Tom Loftus • tloftus@courier-journal.com • July 10, 2009

FRANKFORT, Ky. — The new judge in the highway bid-rigging case is the father-in-law of a highway industry lobbyist.
Advertisement

U.S. District Judge Karl S. Forester confirmed Friday that he is the father-in-law of Sean Cutter, a Frankfort lobbyist whose many clients include the Kentucky Association of Highway Contractors.

One of the defendants in the case, road contractor Leonard Lawson, owns companies that are members of the association. His son Steve Lawson is a former president of the association.

Are the recusals in the bid rigging case of robed roulette or recusal round-robin event? Now its Judge Karl Forester!

Didn't the Commodores have a song entitled, "Once, Twice, Three Times A Recusal"?  Or something like that.

Actually, if you applied the song to the bid-rigging case in federal court it would need to be extended to "Once, Twice, Thrice, Four Times a Recusal".  As the revolving recusal door has gone from Reeves, to Caldwell, to Hood, and finally Forester.

The revolving robed recusals makes it hard to keep a judge on the bench to hear the case.  Yes, I know I have not been posting much on this series of events, but when there is eventually a trial judge whose robes are beyond any appearance of a prior contact or relationship with any of the parties, then maybe, just maybe they will take Justice Brandeis's advice and remember that a little sunshine is a wonderful disinfectant.

Or to make it a little more blunt.... Open the doors and let the public in and the Fourth Estate see how the public's business has been conducted and how the public treasury has been spent.  It's our money in the mix.

Here is a post to update you on the developments thanks to Beth Musgrave of the Bluegrass Politics Blog.  The pics are of Bill Nighbert on the left and Leonard Lawson on the right.

Forester assigned to bid-rig trial

U.S. District Judge Karl Forester has been assigned to oversee a federal criminal trial involving the alleged bid-tampering of more than $130 million in state road contracts.

The first part of a trial of contractor Leonard Lawson, former Transportation Cabinet Secretary Bill Nighbert, and Lawson employee Brian Billings was originally set to start Tuesday, but U.S. District Judge Danny Reeves stepped down from the case after discovering that he had a potential conflict of interest. T

wo other judges -- U.S. District Judge Karen Caldwell and U.S. District Judge Joseph Hood -- were assigned the case on Friday but had to recuse because of potential conflicts of interest. In an order entered Monday, U.S. District Judge Jennifer Coffman, the chief judge of the Eastern District of Kentucky, assigned the case to Forester, who is on senior status, or semi-retirement. Forester has not filed a notice saying that he might have to recuse himself. The three men have been charged with conspiring to buy internal cabinet estimates of road projects and then covering up the conspiracy. All three have pleaded not guilty. The trial has been indefinitely delayed. -- Beth Musgrave

GOV: Judge Orders Gov. Beshear to testify in bid rigging case

I have not posted much on the trials and tribulations developing in the Lawson/Nighbert bid rigging trial in federal court.  But, Judge Reeves is ordering the Governor to show up and testify.  Not by deposition; not by proxy.  Here are some links to recent posts from the Herald Leader's Bluegrass Politics Blog:

• Beshear says he will testify at bid-rig trial
  By Beth Musgrave on Steve Beshear

• Judge: Beshear must testify in bid-tampering trial
  By Government Editor on Steve Beshear

UofL News: Nursing student sues school over dismissal based upon her blog postings

Here are stories filed on the UofL nursing student Nina Yoder's lawsuit in federal court claiming she was dismissed due to content on her blog.  The story was scooped at PageOne Blog on March 5, then followed up with the links to pleadings on March 12, and now the AP is carrying the story.  PageOne has links to the complaint filed.

For those interested in following this nursing story, you should/need to subscribe or visit Page One Blog (the same blog that broke the Robert Felner story at the UofL).  Here is a follow up story by "jake" at the blog: "The Chronicle for Higher Education has picked up on University of Louisville nursing student Nina Yoder being expelled for a blog post. The Chronicle is academia’s premier publication. Check their story out. They link to us, so we’re kinda stoked. But they did a fairly terrible job with the story and didn’t bother to mention the name of Yoder’s attorney– who deserves a lot of credit for getting to the bottom of this and taking it on for the greater good of higher education. Really, why slam her if you’re not also going to slam the University? [Chronicle]"

The home or front page of Page One is at http://pageonekentucky.com/.

• Explosive Problem for the University of Louisville - Nursing Student Expelled for MySpace Blog

  March 12th, 2009 from Page One

  On Thursday, March 5th we learned that a nursing student at the University of Louisville was expelled because of a post on her MySpace account. And it’s official. A law suit was filed today alleging the University has violated rights to free speech. [click on link for entire post and comments]
   
• Here is the AP story from the Herald Leader by Brett Barroquerre AP Reporter with some extracts:
  
  LOUISVILLE, Ky. -- A woman dismissed from the University of Louisville nursing school because of posts on her personal blog sued Friday, saying her First Amendment rights were violated.
  
  Nina Yoder of Louisville asked U.S. District Judge Charles Simpson to issue an injunction that would allow her to resume classes and graduate in August.
  
  The school dismissed Yoder on March 2, saying in a letter that she violated the school's honor code by posting blog items concerning patient activities and naming the university on her MySpace page. A week later, the university rejected Yoder's written appeal to return to school.
  
  Yoder's attorney, Daniel Canon of Louisville, said the postings are mostly political and don't identify patients.
  
  "There's no allegation that I know of that she disrupted the education process," said Yoder's attorney, Daniel Canon of Louisville. "It's speech that's entirely protected."
  
  University spokesman John Drees declined to address the merits of the lawsuit, calling disciplinary action against students confidential.
  
  * * *
  
  
  
  In the lawsuit, Yoder said university administrators cited the gun-related postings and told her "students voiced concerns that lead us to believe you may have a gun." Canon said Yoder didn't have a gun at the time and hasn't ever brought a gun on campus.
  
  Canon said Yoder was told she could not continue in the program because of her blog posts and was considered "persona-non-grata" and withdrawn from classes immediately.
  
  In one post dated Oct. 5, Yoder offered her take on the presidential and vice presidential candidates, at times using obscenities to describe the candidates.
  
  * * *
  
  Canon said by citing the blog as the reason for the dismissal, the university clearly violated his client's free speech rights. But, Canon said, much about his client's situation remains a mystery.
  
  * * *

FEDERAL: "Retrospective: Ten Key Evidence Issues In 2008" from Supreme Court Watch

Post on federal evidentiary issues may be of note to those practicing in federal court and those who wish to see what is on the horizon for possible changes to the state rules.  Found at Supreme Court Watch.  You will have to click on the title for the entire read.

Retrospective: Ten Key Evidence Issues In 2008

By Editor on Supreme Court Watch

A variety of evidence issues were considered in 2008, ranging from a new privilege rule, Confrontation Clause issues, and more.

As the 2008 year concludes, we look back on some of the key evidence developments and issues. There were some significant evidence matters on a number of areas, including on privilege issues, Confrontation Clause, expert testimony, legislation and more.

Here is the list of Federal Evidence Review???s Ten Key Evidence Issues From 2008, which are discussed further below:

Federal Evidence Review???s
Ten Key 2008 Evidence Issues

1. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)
2. Supreme Court: Underscoring Primary Role Of Trial Court In Making Initial Evidence Rulings: Sprint/United Management Co. v. Mendelsohn
3. Supreme Court: Giles v. California Confrontation Clause Forfeiture By Wrongdoing Decision
4. Expert Testimony: What Are The Limits Of An Expert???s Reliance On Inadmissible Or Other Materials Under FRE 703?
5. Legislation: Forestalling The Attorney Client Privilege Protection Act
6. Pending Open Issue: Whether Admitting Business Records Certified Under FRE 902(11) May Violate The Confrontation Clause?
7. Expert Testimony: Explaining Online Behavior
8. Developing Consensus: Bruton Is Inapplicable In Bench Trials
9. Legislation: Reporter Shield Law
10. Developing Consensus: Enforcing Plea Proffer Waivers Under FRE 410

 read more »