2009 Regular Session . May 6, 2009
SB 65 Amended, Passed Out of Committee
LAJ President Allan Kanner testifies SB 65 is 'extreme' and 'radical'
SB 65 by Sen. Jack Donahue came out of Senate Judiciary A Committee on Tuesday, May 5, with several amendments designed to address the committee’s concerns about the bill in its original form. The bill is a product of the U.S. Chamber of Commerce, Coalition for Common Sense (a chamber initiative) and the American Legislative Exchange Council (funded by chamber members). It came with the usual arguments from corporate defense counsel: “Discovery should be a tool, not a weapon;” and “Ask for what you really want and you’ll get it, but you shouldn’t be entitled to a fishing expedition.”
In its original form, SB 65 would have restricted the scope of discovery of electronically stored information. No more discovery of information “relevant to the subject matter” or “reasonably calculated to lead to the discovery of admissible evidence.” Under the original bill, a request for electronically stored information must set forth the specific claims or defenses contained in the pleadings to which the requested discovery is “directly” relevant.
Another objection was that the court had no discretion to order payment of costs but was mandated to order the requesting party to pay costs if the responding party objected that the cost of producing the information is unreasonable.
Also, the original bill said the responding party had no duty to preserve information that was not reasonably accessible, absent agreement of the parties or a court order.
These objections were removed with committee amendments. Even so, you still may have concerns about the bill in its current form. Is it OK as is? Are there still problems? If so, how would those impact litigants?
LAJ President Allan Kanner, testifying against the bill, called it an extreme and radical approach, at odds with the idea of open discovery. Kanner said, “We trust the discretion of judges to decide these issues and the judges haven’t disappointed us.” He pointed out that electronic discovery is a developing area of the law and the rest of the country is watching to see how the federal rules evolve before overturning longstanding principles of discovery.
Kanner read from a U.S. Chamber survey of corporate defense attorneys opining on state civil justice systems. Reviewing the section on Louisiana’s courts, he pointed out that there was no mention of electronic discovery as a problem for corporations. He also pointed out that it’s not only individual plaintiffs who are disadvantaged by these new rules but also small businesses that use the court system for redress of their grievances.
Two Bills of Concern on House Civil Law Agenda Monday, May 11
House Civil Law and Procedure Committee
Louisiana Expert Affidavit Needed to File Professional Liability Claim
HB 139 by Rep. Jane Smith requires an affidavit of a licensed professional in order to file a liability claim against an architect, professional land surveyor or licensed professional engineer. Affiant must be in the same profession as the defendant, must be licensed in Louisiana and actively practicing in the same field. Failure to file the affidavit means a mandatory dismissal with prejudice.
Med Mal: The Big Tent Theory
HB 72 by Rep. Greg Cromer is the fifth effort in as many years to bring more activities under the Med Mal “tent.” Originally dubbed the “Blood and Guts” bill because of specific language in the bill, proponents have tweaked the language over the years in hopes of a better result.
Last year’s attempt, HB 70, also by Rep. Cromer, got out of House Civil Law, but was defeated on the House floor.
HB 72 defines “patient-related service” for the purpose of deciding which acts or omissions in a nursing home or hospital are treated as medical malpractice, rather than ordinary negligence.
But what it does is no service to the patient. The bill says that “any act or service rendered, or which should have been rendered, to a patient as a result of a diagnosis, order, or health care provider’s assessment relating to supervision, monitoring, assistance with activities of daily living, personal hygiene or risk of falling” is medical malpractice.
Still of concern but not on Monday's agenda
HB 205 by Rep. Tim Burns, the collateral source repeal for medical expenses, is not scheduled to be heard in House Civil Law on Monday, May 11, but if you have concerns about this bill, continue to communicate to your legislators that you oppose this bill. Once is not enough. Let them know you’re still worried this bill will come up.
The session isn’t over until June 25, so there’s plenty of time for this bill to pass.
LAJ Legislative Awareness Day: May 12
Tuesday, May 12, in Baton Rouge is LAJ Legislative Awareness Day at the Capitol. Come to Baton Rouge to meet with legislators and talk to them about proposed bills. LAJ will provide breakfast, lunch and transportation to and from the Capitol. Participate in all or part of the day as your schedule allows. To request more information and a sign-up form, reply to this message or call the LAJ office at 800-354-6267 or 225-383-5554.
View live and archived broadcasts of some legislative committee hearings. Go to Legislature's Web portal to view schedules and instructions on how to tune in. Use this same link to contact your legislators, access information about bills, check committee schedules and more.