This blog has permanently relocated to http://www.calblogofappeal.com. (For those of you who already thought you were accessing us at that URL, see this post.) Please reset your bookmarks, blogrolls, etc. accordingly, then go sign up for the feed from the new site. See you there!


Looking Good for the Move on Monday

Barring any unforeseen difficulties, it looks like the move to the self-hosted blog will go ahead on schedule on Monday, June 11.  I will post instructions here when the move is complete.

An Appealable Discovery Order

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

Is it Just Me, or is this a Mouthful?

In Roddy v. Superior Court, case no. D049796 (decision filed May 16, 2007, ordered published on June 7, 2007) the jury commissioner sought writ review of a trial court order enforcing a subpoena duces tecum served on him.  The suboena sought DMV information in the jury commissioner’s possession.  It was served on behalf of criminal defendants who were challenging the constitutionality of the procedures employed by the jury commissioner.  The Fourth District Court of Appeal summarizes its conclusion this way in the introduction:

We conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation of their reasonable belief that underrepresentation of cognizable groups may be the result of improper jury selection practices.

Usually I am quite impressed by how a court succinctly sums up its holding.  But this seems to me like too many long, complicated words in a single sentence.  It’s grammatically and substantively correct, but I might have broken it into two or more sentences, even if it made the summary longer.

Trial Lawyers, Did You Know About This?

A site that tracked back to this post of mine looks like it might be of interest to my trial lawyer readers.  The site juryexperiences.org subheads its page, “What Really Happens On Juries.”  It opens to a “News & Opinion” section that is headed “Selected clippings from blogs and the press, with links to sources” (which is where they linked to me).  The most intriguing area, at first glance, appears to be this link: Read, post and discuss jury experiences on our discussion forum!

That might be worth exploring!

Claiborne Case Sparks Debate

In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines.  The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its technical mootness.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error?  The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.

Please Use the WordPress URL

My work on moving to a self-hosted blog is ramping up.  Until further notice, please use the WordPress URL — https://calblogofappeal.wordpress.com — to access this blog.  While I am fiddling with the future host domain, forwarding from http://www.calblogofappeal.com will NOT work.  I’m hoping to have this move wrapped up within a week.  I’ll let everyone know when to change over to the new, permanent URL, http://www.calblogofappeal.com.