Randy Barnhart

Obama Nominates Utah Judge for 10th Circuit

Yesterday, President Obama demonstrated his continued commitment to increasing the diversity of our federal judiciary, so that it better reflects the nation it serves. He nominated four distinguished women to serve on four different courts—women who not only have the necessary intellect, integrity and fair-mindedness to serve as federal judges, but whose nominations also represent important “firsts” in their state or district:

• If confirmed to the U.S. Court of Appeals for the Tenth Circuit, Judge Carolyn McHugh would be the first woman from Utah to serve on that court.  Currently, the Tenth Circuit only has one woman judge serving among its nine active members.

via www.whitehouse.gov

Colorado Exculpatory Agreement Valid - 10th Circuit Rules

In Squires v Breckenridge {download}, decided May 7, the 10th Circuit found a "release" or exculpatory agreement valid under Colorado law.  The court began its analysis as follows:

“[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.”

The appellant focused the appeal on fourth factor above. In the disposition of the fourth factor, the court's inquiry is "whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” In that analysis, Colorado courts look to “the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).

The appellant argued that the exculpatory agreement did not meet the fourth factor "because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks."

The 10th Circuit rejected the argument. It held that Colorado does not require exculpatory agreements to reference the "specific activity" in which an injured person is engaged and which results in injury, citing Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996).

Be careful with what you sign!

Colorado Celebrates Law Day

This week, people across the United States will observe Law Day. It is a time each year to celebrate the rule of law and the role the courts and legal system play in helping people peacefully resolve disputes in modern society. Here in Colorado, we will be privileged and honored to have U.S. Supreme Court Justice Sonia Sotomayor help us mark the occasion.

On May 2, Justice Sotomayor will join me and Governor John Hickenlooper to formally dedicate the Ralph L. Carr Colorado Judicial Center. The courthouse was named after Colorado’s 29th governor, widely respected for opposing the internment of American citizens of Japanese descent during World War II.

via cbaclelegalconnection.com

Colorado Supreme Court reverses discovery of an iPod

In Gateway Logistics Inc. v. Smay, 2013 CO 25, the Colorado Supreme Court held that privacy rights can bar over-reaching discovery requests. A party to the case “sought to inspect personal and business computers, smartphones, and other electronic storage devices” belonging to the opposing party. The discovery sought included “approximately three years” of telephone records.

The “trial court abused its discretion by failing to make findings of fact balancing” privacy rights against the “need for the information.” See In re District Court, 256 P.3d 687, 691–92(Colo. 2011).  Any information must be relevant, a compelling need for the information must exist, and if so, “whether that information can be obtained elsewhere.”

The discovery requested was extensive: “personal computers, business computers, lap-top computers, servers, hard drives, CDs, DVDs, USB drives, thumb drives, memory sticks, floppy disks or any other portable data storage device, including but not limited to BlackBerries, iPods, iPads and iPhones.” iPods?

The court described “forensic imaging,” which allows a computer expert to “search the image as if it were the computer without depriving the computer’s owner of his or her machine.”

Because motions to compel discovery are “committed to the discretion of the trial court,” the Supreme Court reviews a discovery order for an abuse of discretion. But in any case “where a party has asserted a right to privacy in the information being sought through discovery,” the trial court must perform “the required balancing test” as set forth in In re Dist. Court, 256P.3d at 692, supra.  Failing to perform that test appears to be a per se abuse of discretion.

To be sure, the scope of discovery is “very broad.” Parties may discover “any matter, not privileged, that is relevant to the claim or defense of any party,” and the information wanted “need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

However, if a party objects on grounds of confidentiality or privacy, “the trial court must balance the policy in favor of broad disclosure with the individual’s right to keep personal information private.” The party seeking discovery must “prove that it has a compelling need for the information,” and thus that “the information requested is relevant to the subject of the action.” The burdens then shift a bit back and forth, but in any event, the trial court must allow the parties to present their reasons for or against discovery.

Individuals do “have a privacy interest in their electronically stored information, including personal correspondence and records, on their computers, smartphones, and other electronic storage devices.”

The court noted that “computers now play an ‘ever greater’ role in daily life and serve as repositories for increasingly more and different kinds of information.” Usually, courts fall behind the technology curve, but good courts strive to keep the crest in sight.

One of the Supremes coming to town (Denver)

From the Colorado courts media servies:

U.S. Supreme Court Justice Sonia Sotomayor will be in Denver on May 2, 2013, to join the Colorado Judicial Branch as it formally dedicates the Ralph L. Carr Colorado Judicial Center at 1:30 p.m. A total of 300 tickets have been earmarked for the general public. Public tickets are free and will be available online at http://www.courts.state.co.us/sotomayorevent/ beginning at 8 a.m. Wednesday, April 10, 2013.

Heads up - Colorado appellate attorneys

Colorado statute, Section 13-4-108, was recently amended, to take effect July 31, 2013.

For Colorado supreme court review by petition for cert, there is a new time period, which is shorter than before:

(2) Within thirty TWENTY-EIGHT days after a rehearing has been refused by the court of appeals, any party in interest who is aggrieved by the judgment of the court of appeals may appeal by application to the supreme court for a writ of certiorari.

The time interval is counted forward, so the new statute provides that the new time period applies if it both "commences and ends with dates on or after July 1, 2013.

Some in the US Senate still don't know who won the last election

In a recent publication, Length of Time from Nomination to Confirmation for "Uncontroversial" U.S. Circuit and District Court Nominees: Detailed Analysis, by Barry J. McMillion [Kindle Edition here], we learn:

Average and median waiting times to confirmation increased steadily with each presidency, from Ronald Reagan’s to Barack Obama’s, for uncontroversial circuit court nominees and almost as steadily for uncontroversial district court nominees.

Uncontroversial Circuit Court Nominees

For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency.

The percentage of uncontroversial circuit court nominees waiting more than 200 days from first nomination to confirmation increased from 5.1% during the Reagan presidency to 63.6% during the Obama presidency.

Uncontroversial District Court Nominees

For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.

The percentage of uncontroversial district court nominees waiting more than
200 days from first nomination to confirmation increased from 6.6% during the Reagan presidency to 54.7% during the Obama presidency.

The author defines what "uncontroversial" means. He is an analyst for the federal judiciary. (Yes, Colorado did just get a new federal district judge, but this is over the top.)

Important New "Economic Loss" Case in Colorado

In Engeman Enterprises, LLC v. Tolin Mechanical Systems, the Colorado court of appeals rejected a tort claim by one party to a contract against the other party when ammonia led to an explosion. Held the court:

Finally, and perhaps most importantly, the fact that the parties may have entered into a contract that would limit consequential damages for this injury is persuasive evidence for application of the economic loss rule, as it demonstrates that the parties could have had a remedy in contract for such damages had they chosen not to contractually limit such damages. The mere fact that such damages may have been contractually limited does not allow a party to avoid application of the economic loss rule.

However, the court preceded that holding with this: "plaintiff could have alleged that defendant committed willful and wanton breach of contract, thus potentially defeating the limitation-of-liability clause and allowing plaintiff to recover the full measure of consequential damages under the contract." (underscoring added). But isn't that an entirely different evidentiary burden? In effect, the court held that the economic loss rule applies whenever a plaintiff could have done something differently on a contract claim in litigation, but that is a radical extension of the economic loss rule which swallows the exception to contract-only remedies in cases when an independent tort duty of care would othereise exist but for the court's forward-to-the-past hypothetical. What do you think?