September

NOTICE AND AGENDA FOR

AZELA Membership/CLE MEETING

Friday, September 22, 2017, 12 Noon to 1:30pm

 

 

Location: Jaburg & Wilk, P.C. Conference Room

20th Floor, at 3200 North Central Avenue in Phoenix.  Free (validated) parking is available in the parking structure west of the office building.  (Kraig Marton, Jeff Silence, and David Farren are our hosts.)  There is no cost to attend.

 

Feel free to bring your lunch and beverage.

1.5 hour CLE certificates will be given to all in attendance

 in person or telephonically (see pages 10-11 infra)

 

(The AZELA Board meeting follows at 1:35pm;

the Board meeting agenda is provided infra)

 

This Notice and Agenda prepared and written by Roger A. McKee rogmckee@cox.net

Chair, AZELA CLE/Membership Meetings

 

To Attend Telephonically: Members who attend telephonically will be sent CLE certificates upon request to Roger McKee, rogmckee@cox.net.  To attend by phone, all you have to do is pick up your phone and follow these simple instructions.

(1)  Dial (605) 472-5814

(2)  Enter the meeting ID number: 574-193-032 (followed by the # key)

(3)  Put your phones on mute unless you are speaking.

 

If you run into any problems, dial the Jaburg & Wilk office number (602) 248-1000 and ask for Jeff Silence or Ash (the Jaburg & Wilk I.T. person).

 

 

 

 

Recent significant cases

 

Ninth Circuit

 

Myers v. Checksmart Financial, LLC, 2017 WL 2838477 (7-3-17): Plaintiff employee mid-identified her employee in her discrimination charge and in her complaint, and later sought to amend to identify the correct employer entity. District Court denied amendment and dismissed complaint, but Ninth Circuit reversed.  Where employee had reasonable belief that originally named Defendant was her actual employer and the actual employer had actual notice of her charge and later complaint, amendment should have been permitted and it would have “related back” to original complaint under FRCP Rule 15(c)(1)(C).

 

Marsh v. J. Alexander’s LLC, 2017 WL 3880742 (9-6-17) (Clifford Bendau for Plaintiffs, David Selden for Defendants): Former employees who received tips brought separate actions against their former employers alleging that employers failed to pay required minimum wage in violation of Fair Labor Standards Act (FLSA) by improperly claiming tip credit for time employees spent on related duties not directly connected with generating tips. The employees relied upon an interpretation of 29 CFR 531.56(e) in the U.S. D.O.L. Field Operations Handbook which purports to require employers to keep logs for such “dual employees” so that their tip earning time could be segregated from their “other duties” time for the purpose of determining their minimum wage requirement.  The Ninth Circuit affirmed the dismissal of the employees’ claims on the basis that the Handbook interpretation was not entitled to deference and created a burden not authorized by statute or regulation.  On remand, the Plaintiffs will have leave to amend to re-plead their FLSA minimum wage claims. (reviewed by Joshua Carden)

 

Alamillo v. BNSF Railway Co., 2017 WL 3648514 (8-25-17): Antonio Alamillo sued his former employer, BNSF Railway Company (BNSF), claiming that it had terminated him from his job as a locomotive engineer because of his disability, obstructive sleep apnea (“OSA”).  Alamillo specifically contended that (1) he was discriminated against because his OSA allegedly caused him to miss six calls to work over a three-month period which resulted in his termination, and (2) that BNSF failed to reasonably accommodate his OSA by excusing the past missed calls once it learned of his condition. The Railway’s conduct rules provided that an employee could be dismissed for five missed calls in a twelve-month period. After his fourth missed call occurred in May 2012, he was asked to attend an “investigation” hearing before a carrier and rail union representative as provided under his union contract, and was subsequently asked to attend separate investigations resulting from his missed calls in late May and June 2012. Only after his last missed call did he seek a medical opinion regarding his condition, and a doctor issued a preliminary diagnosis in August 2012 that Alamillo’s failure to hear his phone was within the “array of symptoms of OSA.” Alamillo then used this “diagnosis” as a means of attempting to ward off his termination at the investigations that were conducted just after the diagnosis was received. The district court granted summary judgment to BNSF, and the Ninth Circuit affirmed. With respect to the discrimination claim, the Ninth Circuit held that there was no evidence that BNSF’s decision to terminate Alamillo was motivated by his alleged disability, and that insufficient evidence existed that the alleged condition caused his missed calls. Instead, the court concluded that the missed calls may have been caused by a number of “non-OSA factors,” such as failing to install a landline instead of relying on his cell phone to wake him up every day, refusing to ask his wife to wake him when his phone rang, or not using his union seniority to bid on a job with regular hours instead of continuing to work in a position with an irregular schedule. The Ninth Circuit held that exercising leniency by excusing an employee’s past misconduct is not a reasonable accommodation. Citing the EEOC Reasonable Accommodation Guidance, the court stated that because reasonable accommodation is “always prospective, an employer is not required to excuse past misconduct even if it is a result of an individual’s disability.” (reviewed by Natalie Virden)

United States of America ex rel. Campie v. Gilead Sciences, Inc., 862 F. 3d 890 (7-7-17): This decision sets forth the elements of proof for a claim of employer retaliation under the False Claims Act (“FCA”), 31 USC 3730(h) and what satisfies the pleading requirements to withstand a FRCP Rule 12(b)(6) motion, and held that the heightened pleading requirements of Rule 9(b) do not apply to such claims.  To state a claim for retaliation, a plaintiff must demonstrate that: (1) he “engaged in activity protected under the statute”; (2) the employer knew the plaintiff engaged in a protected activity; and (3) the employer discriminated against the plaintiff “because he … engaged in protected activity.”  In this case, the Relator/Plaintiff stated a claim for retaliation, in violation of False Claims Act (“FCA”), 31 USC 3730(h) against his former employer, a pharmaceutical drug company, by alleging that as a senior director of global quality assurance at the company he had an objectively reasonable, good faith belief that company was possibly committing fraud against the government by obtaining reimbursement for its mislabeled and adulterated HIV drugs, that he made clear to the company that he expected it to stop its deceptive practices and threatened to inform the Food and Drug Administration (FDA) if it continued its fraudulent conduct, and that as a result, his employment was terminated soon thereafter.  Allegations of causation are sufficient at the pleading stage of a retaliation claim under FCA if plaintiff simply indicates he believes defendant terminated him because of his investigation into the practices specified in the complaint.  The Ninth Circuit reversed the FRCP Rule 12(b)(6) dismissal of the complaint.

 

Fuller v. Idaho Dept. of Corrections, 865 F. 3d 1154 (7-31-17): This public employee sex discrimination case is 27 pages long and includes a spirited dissent. It arises from what began as a concealed romantic relationship among two Idaho Dept. of Corrections employees, which later became public when the relationship “went south” and the female employee accused the male employee of sexual assaults (occurring off the job).  Her claims arise from the IDOC response to her complaints of “hostile work environment” and sex discrimination as the two continued to work together at IDOC after she reported the assaults. [This case includes the difficult question of fact as to whether a consensual sexual relationship later became forcible.] The female Plaintiff filed claims Title VII claims of hostile work environment and sex discrimination against the IDOC, and 42 USC 1983 claims of equal protection (gender) against two of her supervisors. The District Court granted summary judgment to the IDOC and the supervisors, but the Ninth Circuit reversed.  Holdings:

  • Genuine issue of material fact existed as to whether alleged actions of female Idaho Department of Corrections (IDOC) employee’s male supervisors in effectively punishing employee for taking time off after she reported rape by male-coworker, while both vocally and financially supporting co-worker, were sufficiently severe or pervasive to alter conditions of workplace, precluding summary judgment on employee’s Title VII hostile work environment claim based on sex discrimination against IDOC.
  • IDOC knowledge of previous sexual harassment complaints against male employee, who raped female employee, while alone insufficient to create a hostile work environment based on sex discrimination, was relevant and probative of IDOC’s general attitude of disrespect toward its female employees, in female employee’s VII hostile work environment action based on sex discrimination.
  • Employer’s reaction to a single serious episode may form the basis for Title VII hostile work environment claim.
  • When an employer acts in a way that effectively condones or ratifies a rape or sexual assault and its effects, a jury may reasonably infer that the employer itself is discriminating because of sex, in violation of Title VII.
  • If an employer, acting in the workplace, discriminates against a female rape victim in the conditions of her employment by condoning her rape and its effects, that employer should not escape Title VII liability for its discrimination merely because a rapist employee conducted his assault off the premises.

There is also an interesting debate between the majority and the dissent over what weight to give undisputed facts alleged by the employer in the context of accepting all supported allegations of the employee as true.

On this same subject, compare Vasquez v. Empress Ambulance Service, Inc., 835 F. 3d 267 (2nd Cir., 2016): When two rank-and-file employees each claimed the other had engaged in unwelcome romantic advances, the employer may have “cat’s paw” liability when the decision maker who fired the Plaintiff male for sexual harassment was negligent in accepting the complaining female’s version of what occurred. When an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, the employee’s motivation be imputed to the employer and used to support a claim under Title VII; put simply, an employer can still “just get it wrong” without incurring liability under Title VII, but it cannot “get it wrong” without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee’s discriminatory or retaliatory prejudice. (reviewed by Emily Johnson))

 

Moonin v. Tice, 868 F. 3d 853 (8-22-17): The Ninth Circuit held that a policy imposed by a Nevada Highway Patrol Major Tice violated the First Amendment free speech rights of his subordinates to speak out about problems with the Patrol’s canine unit program which had become a matter of public concern.  The policy stated, in part:

 

“Effective immediately, except for allied [law enforcement] agencies and [High Intensity Drug Trafficking Area] representatives, there will be NO direct contact between K9 handlers, or line employees[,] with ANY non-departmental and non-law enforcement entity or persons to discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect organization therein. All communication with ANY non-departmental and non-law enforcement entity or persons regarding the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect organization relating to these programs WILL be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately.”

 

The Court found that the policy covered speech undertaken outside the officers’ official duties and on matters of public concern. The case is significant because the Court did not find that the rule of Garcetti v. Ceballos, 547 U.S. 410 (2006) limits First Amendment protection to statements the public employee makes as a “citizen” and not as part of their official duties:

 

“Even if some speech implicated by Tice’s email edict might fall within the troopers’ official duties, much of the potentially affected speech does not. Tice’s policy, drafted very broadly, could reasonably be understood to forbid, on penalty of employment discipline, speech made by K9 troopers in their capacities as citizens. Tice’s email permits “NO direct contact between K9 handlers[ ] or line employees with ANY non-departmental and non-law enforcement entity or persons to discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect organization therein.” On a straightforward reading of this sweeping language, it is not confined to “official agency business,” compare Milwaukee Deputy Sheriff’s Ass’n, 574 F.3d at 383, nor to information that would harm pending investigations or expose sources and methods, compare Baumann v. District of Columbia, 795 F.3d 209, 217 (D.C. Cir. 2015) (upholding a policy prohibiting disclosure of “confidential information that may jeopardize the successful conclusion of an investigation”). The policy as enunciated encompasses employees’ opinions about the program. It also reaches legitimate “whistleblower” complaints about the program. And, although the policy affects only speech relating to the K9 or drug interdiction programs, we may not assume that the troopers speak as employees rather than citizens on every occasion in which they discuss information learned or opinions developed while on the job. See Lane, 134 S.Ct. at 2379. “[S]peech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Id. Absent any qualification regarding what types of information or opinions regarding the K9 program are subject to the policy, we cannot say that Tice’s edict affects only speech made pursuant to the affected troopers’ official duties.

 

The Court held that Tice had failed to show any past disruptions sufficient to justify the expansive policy, nor did he demonstrate that any harms anticipated were real, not merely conjectural. The panel further held that it was clearly established in 2011, when Tice set the policy, that such a broad restriction on employee speech could not survive First Amendment scrutiny. Accordingly, Tice was not entitled to qualified immunity. The Court affirmed the district court’s grant of partial summary judgment to appellant on the First Amendment claim after concluding that the relevant facts were not in dispute and the legal issues were identical to those raised in the qualified immunity analysis. (reviewed by Matthew Parker)

 

Vallejo v. Azteca Electrical Construction Incorporated, 2017 WL 3500399 (8-16-17) (Isaac Hernandez for Plaintiff, Defendants pro se): 9th Circuit affirms judgment for construction worker for FLSA overtime and failure to pay wages after bench trial. 9th Circuit and District Court rejected employers’ defenses of “unclean hands” and “in pari delicto” based upon employers’ allegations re Plaintiff having used two different but similar first names and misrepresentation about his immigration status. (reviewed by Isaac Hernandez)

RAMc note: See Mariche v. Phoenix Oil, LLC, 2014 WL 2467964, case #CV-13-550-PHX-NVW (filed 6-3-14) (Guy Knoller for Plaintiff, Elliot Isaac for Defendants), and Bailey v. TitleMax of Georgia, Inc., 776 F. 3d 797, 801-802 (11th Cir., 2015)

 

U.S. District Court for Arizona

 

Shoup v. Tucson Unified School District, 2017 WL 3437643, case # 4:16 CV 573 TUC DCB (8-10-17) (bad lawyering case) (Richard Martinez for Plaintiff, Donald Johnsen for Defendant): School nurse with a disability filed separate EEOC/ACRD charges, and then separate USDC lawsuits after receiving her notices of right-to-sue. She voluntarily dismissed her second case while the first case was still pending. The employer later moved to dismiss the first case on the grounds of res judicata/claim preclusion because the second case had included claims that either were brought in the first case or could have been brought in the first case.  The Court dismissed the first action based upon claim preclusion as a result of the dismissal of the second action.

 

Coleman v. Home Health Resources Incorporated, 2017 WL 3704963, case # 2:25 CV  1332 OHX NVW (8-28-17) (Stephen Montoya for Plaintiff, John Doran for Defendants): Judge Wake grants summary judgment for employer on employee’s claim of race and age discrimination.  Holdings include:

(1) For retaliation, Coleman did not engage in protected activity when she went a long period without any raise but she believed that other employees not in her protected classes (race and age) were getting raises, so she twice went to her supervisor to say that since others were getting raises she wanted one. Supervisor told her there was a “age freeze” on and rejected her requests.  Because Coleman never said to her supervisor that she believed that raises she believed others had gotten or the reason she hadn’t gotten one were based upon either protected classification, the Court held that it was not “protected activity”, element #1 for a retaliation claim.

(2) The Court found that certain discrete events were sufficient to constitute an “adverse employment action” (“AEA”) for retaliation: “ . .  the negative performance reviews, warnings, and admonishments could deter a reasonable worker from exercising her rights under the law.”  But the Court found that five other “events” were insufficient to constitute an AEA.

 

Collinge v. IntelliQuick Delivery Inc., 2017 WL 3887337, case # 2:12 CV 824 PHC JWS (9-6-17) (Dan Bonnett for Plaintiff, Littler Mendelson for Defendant): Employee and employer each submitted expert reports re calculations of Plaintiff’s wage claim and the Plaintiff’s expert submitted his rebuttal report.  Thereafter the employer’s expert submitted a declaration as a supplement to his report, and the employee moved to strike the declaration.

The Court stated:

“Rule 26(e) provides that a party must supplement or correct its expert’s report if the party “learns that in some material respect the [report] is incomplete or incorrect.”9 In other words, a party must supplement an expert report “to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid summary judgment.”10 “Courts distinguish ‘true supplementation’ (e.g., correcting inadvertent errors or omissions) from gamesmanship, and have therefore repeatedly rejected attempts to avert summary judgment by ‘supplementing’ an expert report with a ‘new and improved’ expert report.”11

The new Crandall report is of the latter variety. Crandall’s new report is clearly a new expert report that rebuts Breshears’ June 5 report, not a correction to or an expansion of Crandall’s previous report.12 Thus, this case is easily distinguishable from the cases upon which IntelliQuick relies.13 Because Crandall’s new report does not correct a deficiency in his previous report, Rule 26(e) does not apply.14

The Court granted the motion to strike the expert declaration and awarded attorney’s fees incurred for the motion to strike.  (reviewed By Dan Bonnett).

Cameron v. Avalon Mobility Incorporated, 2017 WL 3593715, case # 2:15 CV 963 PHX JAT (8-21-17): (Christopher Bendau for Plaintiff, Rob Burris for Defendants): Plaintiff warehouse worker filed FLSA OT claim. Employer claimed he was exempt under the administrative and executive exemptions. Parties filed cross motions on coverage issue, and District Court denied both. This case is an xlnt outline of these two exemptions and the regulations and case law defining them, and a handy keeper reference for FLSA practitioners.  Nuggets include, inter alia:

Re administrative exemption requirement #4:

Requirement (4): Hiring, Firing Decisions

The relevant DOL regulation provides that in assessing whether an employee’s recommendations as to hiring, firing, or otherwise changing the employment status of other employees are given “particular weight,” a court should consider “whether it is part of the employee’s job duties to make such suggestions and recommendations [and] the frequency with which such suggestions and recommendations are made or requested.” 29 C.F.R. § 541.105. The regulation goes on to provide that an employee’s input may still have particular weight “even if the employee does not have authority to make the ultimate decision.” Id.

Here, Plaintiff argues that Defendants fail to satisfy requirement four because Plaintiff never hired or fired any employees of Defendants, nor did he make such recommendations. (See Doc. 45 at 12-13; see also PCSOF at ¶¶ 33). Defendants unequivocally admit this fact. (See DCSOF at ¶¶ 18-19). Defendants, however, argue that just because Plaintiff never exercised his authority to provide hiring or firing recommendations to management does not mean that he did not have such authority or duty. (See Doc. 47 at 15-16).  . . . . . Accordingly, there is a question reserved for the fact-finder as to requirement four and whether Plaintiff falls under the executive exemption.

 

 

Arizona Appellate Courts

 

Lipsky v. Safety National Casualty Corporation, 2017 WL 443525, Ct. Apps. Div. One case # 1 CA-CV 15-37 (2-2-17) (Michael Doyle and Erin Faulhaber for Plaintiff, Melanie Pate for Defendant): Plaintiff filed, inter alia, claim for wrongful termination for having filed a workers compensation claim, ARS 23-1501(A)(3)(c)(iii).  Two of the holdings in this case are in the May 19, 2017 AZELA CLE Agenda. Another very useful one is that tort damages include harm to a persons’ credit reputation or score, in paragraph 42.

 

Yahweh v. City of Phoenix, 2017 WL 2952236, 769 Ariz. Adv. Rep. 16 (Ariz. App., 7-11-17) (Bad lawyering case?) Plaintiff was a Phoenix Police detective whose name was put on the “Brady (v. Maryland, 373 U.S. 83 [1963] list” after the PPD published a Public Standards Bureau Report which Yahweh alleged had defamatory statements about him.  The Superior Court dismissed his lawsuit because it found that he had failed to strictly comply with the notice of claims statute, ARS 12-821.01, which requires, inter alia, that such a notice must “contain a specific amount for which the claim can be settled and the facts supporting that amount”. His timely and duly served notice of claim stated in pertinent part:

“The Claimant will be bringing legal action against the Phoenix Police Department and the City of Phoenix seeking damages for 1.5 million dollars, as the Claimant planned to earn for the next ten years and these were his projected earnings. He is suing for defamation of his character in the public, as the PSB report is a public record, and among his peers, and it has affected his earning potential to obtain employment. He will also be bringing action for violations of the Family Medical Leave Act. In order to obtain an agreeable resolution to this matter, contact his lawyer Jess Lorona Esq., promptly.”

The Superior Court granted the City’s ARCP Rule 12(b)(6) motion to dismiss and the Court of Appeals affirmed the dismissal, stating:

“¶ 8 The claim is barred if the claimant fails to present a valid settlement offer to the public entity he or she wishes to sue. Id. “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts § 24 (1981). The amount a plaintiff will accept to settle litigation is rarely based on questions of liability alone, but includes factors such as the cost of litigation and the anticipated trial verdict. See Deer Valley Unified Sch. Dist. No. 97, 214 Ariz. at 297, ¶ 14, 152 P.3d at 494 (citing State v. Brooks, 23 Ariz. App. 463, 467, 534 P.2d 271 (1975)). Simply reciting the amount a claimant will demand in a complaint is insufficient to satisfy § 12–821.01, because such a statement does not express a willingness to accept a specific sum in settlement.”

 

Useful cases from other jurisdictions

 

Whole Foods Market Group, Inc. v. NLRB, 2017 WL 2374843 (2nd Cir., 6-1-17): The Second Circuit affirms the NLRB Whole Foods decision (employer policy prohibiting all recording and videotaping by employees at the workplace has a “chilling effect” on worker exercise of NLRA right of “concerted action” and is therefore unlawful).

 

Egan v. Delaware River Port Authority, 851 F. 3d 263 (3rd Cir., 2017): For FMLA retaliation claims, the plaintiff’s burden of proof on causation is the mixed-motive test (motivating factor), not the higher “but for” burden, citing 29 C.F.R.  825.220(c).

 

Bordignon v. Eastern University, 2017 WL 1493282 (E.D. Pa., 4-26-17): Plaintiff relocated from Washington, D.C. to Philadelphia area after he accepted job offer from university.  After he arrived to begin work, he was fired before he could start.  Although he would have been an at-will employee, he stated a claim for promissory estoppel (Rest. 2d of Contracts sec. 90) for reliance damages, under PA law.

 

Castleberry v. STI Group, 2017 WL 2990160 (3rd Cir., 7-14-17): A single racial slur by a supervisor may be enough for a “hostile environment” claim:

“Under the correct “severe or pervasive” standard, the parties dispute whether the supervisor’s single use of the “n-word” is adequately “severe” and if one isolated incident is sufficient to state a claim under that standard. Although the resolution of that question is context-specific, it is clear that one such instance can suffice to state a claim. See Faragher, 524 U.S. at 788 (“isolated incidents” will amount to harassment if “extremely serious”) (quotations omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curium) (quotations omitted) (same); Jensen, 435 F.3d at 449 n.3 (same). However, a plaintiff must plead the incident to “be extreme to amount to a change in the terms and conditions of employment” for it to serve as the basis of a harassment claim. Faragher, 524 U.S. at 788. . . . . . . . . .

Indeed, other Circuits have similarly held that an extreme isolated act of discrimination can create a hostile work environment. See, e.g., Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 268 (4th Cir. 2015) (en banc) (“[W]e underscore the Supreme Court’s pronouncement in Faragher …, that an isolated incident of harassment, if extremely serious, can create a hostile work environment.”); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the “n-word”] by a supervisor in the presence of his subordinates … [that] impacts the work environment [ ] severely ….”) (quotation omitted); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1254 (11th Cir. 2014) (although a racially offensive carving on a workplace wall “was an isolated act, it was severe” enough that a “reasonable jury could find that [plaintiff’s] work environment was objectively hostile”);”

 

Liguria Foods, Inc. v. Griffith Laboratories, Inc., 2017 WL 976626 (N.D. Iowa, 3-13-17): A “keeper opinion” by Judge Mark W. Bennett condemning the practice of stuffing discovery responses with general and boilerplate objections, and suggesting that such conduct is sanctionable: “I know that I am not alone in my goal of eliminating “boilerplate” responses and other discovery abuses, because the goal is a worthy one.5 As one commentator observed:

Though boilerplate objections are relatively common in modern civil litigation, the legal community can take steps to curb their use. Attorneys and judges alike must recognize the costs these objections impose on the efficient administration of justice and on the legal profession. Only with such an understanding, and an attendant willingness to effectively penalize those who issue boilerplate objections, can their use be reduced. Hopefully, with an increased focus on preventing abusive discovery practices, including boilerplate objections, the legal profession can move toward fairer, more effective discovery practices.6

 

The Court also restated the rule in discovery that any ground not stated in a timely objection to an interrogatory or request for production is waived, unless the court excuses the failure.

See also Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y., 2-28-17): After noting that the defendant included 17 “general objections” in its responses to the discovery requests, the Court quoted from the defendant’s objections to the first two document requests. The defendant objected “to the extent that [they are] overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence” and that the requests seek “information already in Plaintiff’s possession.”  The Court held that those objections violate the amended rules in at least four respects. First, the general objections violate Rule 34(b)(2)(B)’s requirement that objections be stated with specificity and Rule 34(b)(2)(C)’s requirement to indicate if responsive material is being withheld because of a specific objection. Thus, “[g]eneral objections should rarely be used after December 1, 2015 unless each such objection applies to each document request.” Second, the defendant’s general objections based on “non-relevance” to the “subject matter of the litigation” and that the discovery is “not likely to lead to the discovery of relevant admissible evidence” are outdated. Because “discovery about ‘subject matter’ no longer is permitted” and because the “2015 amendments deleted” the “likely to lead to the discovery of relevant, admissible evidence” language, “lawyers need to remove [that language] from their jargon.” Third, objections that requests are “overly broad and unduly burdensome” are “meaningless boilerplate” because that “language tells the Court nothing.” Fourth, the discovery responses failed to indicate when the responsive material would be produced.

 

Conclusion of Membership Meeting

 

(Pick up your CLE certificate or send e-mail to

rogmckee@cox.net to request it.)

 

2017 AZELA Calendar

 

All AZELA meetings and events listed are on Fridays.  Jaburg & Wilk has generously let us use their conference room again in 2017 for our Membership/CLE meetings on the dates listed below:

 

October 20 (may be changed to Oct 13 or 27 – stay tuned)

November 17

December 8

 

Time & Place of Monthly CLE Meetings: All meetings (except for the Annual Convention) start at 12 noon, at the Jaburg & Wilk conf. room.

 

CLE Credit Provided: All members in attendance will receive a CLE certificate for 1.5 hours of MCLE credit. If ethics subjects are covered, that time will be indicated on the CLE certificate.

 

 

 

NOTICE AND AGENDA FOR

AZELA BOARD MEETING, Friday, September 22, 2017 (CLE meeting at noon; Board meeting follows CLE meeting)

 

Location: Jaburg & Wilk, P.C. Conference Room, 20th Floor, 3200 North Central Avenue in Phoenix.  Free (validated) parking is available in the parking structure west of the office building.  (Kraig Marton, Jeff Silence and David Farren are our hosts.)

 

Attend Telephonically:

  • Dial (605) 472-5814
  • Enter the meeting ID number: 574-193-032 (followed by the # key)
  • Put your phones on mute unless you are speaking.

 

 

Board Meeting (1:35 pm)

 

  1. Calling of roll of Board members present (in person and on the phone).

 

  1. Review and approval of minutes of Board meeting on August 25, 2017. (Mishka Marshall)

 

  1. Treasurer’s Report (Michelle Matheson).  Financial report.

 

  1. Committee Reports

 

  1. Convention Planning Committee (Michelle Matheson (Chair), Suzanne Dohrer, Roger McKee, Mishka Marshall, Jeff Silence, Tony Shaw, and Ariel Henderson). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Legislative Affairs Committee (Cheri McCracken (Chair), Denise Blommel, Thomas Rogers, Kaitlyn Redfield-Ortiz, Otto Shill, Nathan Smith, Meenoo Chahbazi, Santiago Flores, Jr., Nina Targovnik, and Jim Barton). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Amicus Committee (Kraig Marton (Chair), Roger McKee, Chris Houk, Stan Lubin, Kevin Koelbel, Nathan Smith, and Joshua Carden). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Website Committee (Jarrett Haskovec (Chair), Mishka Marshall, Jeffrey Silence). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Public Outreach Committee (Mishka Marshall (Chair), Ty Frankel, and Meenoo Chahbazi). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Social/Membership Committee (Michelle Matheson/Rich Harris (Co-chairs), Bill Hobson, Jeff Jacobson, Cheri McCracken, Chris Houk, Emily Johnson, and Erin Hertzog). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Report on Advocacy

 

  1. AZELA Submits Comment to DOL Supporting Final OT Rule from 2016 (attached)

 

  1. Unfinished Business

 

  1. No unfinished business

 

  1. New Business

 

  1. Possible Change of Date or Cancellation of Board Meeting Scheduled for October 20, 2017 (Jarrett Haskovec). Discussion regarding changing the date of October’s meeting in light of SBA Labor and Employment Section’s Fall Seminar in Sedona, which is scheduled for October 20-21, 2017.  Possible action.

 

It is recommended that AZELA change the date of its next Board meeting from October 20, 2017 to October 27, 2017.

 

  1. Membership and Convention Pricing (Kevin Koelbel) (see attached proposal and Board email exchange dated January 10, 2017). Discussion and possible action.

 

It is recommended that AZELA approve the membership and convention fees and dues schedule proposed.

 

  1. Schedule of AZELA Meetings for 2018 (Roger McKee) (proposed dates forthcoming). Discussion and possible action.

 

It is recommended that AZELA approve the proposed dates for AZELA meetings in 2018[, specifically, . . . ]

 

  1. Proposal to Increase Fee for and to Lengthen Monthly AZELA Meetings (Roger McKee) (proposal/justification forthcoming). Discussion of increasing fee for conducting research, preparing summaries, and holding monthly CLE meetings from $400 to $750 and to increase length of monthly CLE meetings from 1.5 to 2 hours.

 

It is recommended that AZELA increase the fee paid to Roger McKee, AZELA Monthly CLE Chair, from $400 to $750 for all time spent preparing for and conducting monthly CLE meetings.

 

It is recommended that AZELA increase the length of AZELA monthly CLE meetings from 1.5 hours to 2 hours.

 

  1. Future Agenda Items. Requests by Board members and AZELA members for future items for consideration by the Board.

 

  1. AZELA D&O/event insurance coverage (Jarrett Haskovec).  Discussion of areas for insurance coverage to be sought in any D&O or other liability coverage regarding AZELA activities, including CLE meetings and listserv defamation concerns.  Discussion and possible action.

 

  1. AZELA’s Potential Involvement in Legislative Affairs and

Initiatives (Roger McKee, Suzanne Dohrer).  Presentation regarding restrictions on contributions and endorsements for a 501(c)(6) organization.  Discussion and possible action.

 

  1. Next Regular Board Meeting Date: October 20, 2017 (unless rescheduled or canceled – see above).

 

Posted in 2017 Monthly CLE Meetings