CLE: Start-to-finish primer on electronic discovery

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

03 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
01 - TN Court of Criminal Appeals
05 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_052410.pdf


LEE MEDICAL, INC. v. PAULA BEECHER ET AL.

Court: TSC

Attorneys:

Ron H. Pursell and Edward A. Hadley, Nashville, Tennessee, for the appellant, Lee Medical, Inc.

Steven A. Riley and Sarah J. Glasgow, Nashville, Tennessee, for the appellees, Cathy Philpott, Paula Beecher and All About Staffing, Inc. and Non-Party Subpoena Recipients Hendersonville Medical Center, and Mike Esposito.

George H. Cate, III, Nashville, Tennessee, Timothy J. Rivelli, Cornelius M. Murphy, Linda T. Coberly, and Amanda R. Conley, Chicago, Illinois, for the appellees, Bard Access Systems, Inc. and Heather Chambers.

Marshall T. Cook, Hendersonville, Tennessee, for the appellee, Kim Alsbrooks.

G. Brian Jackson and David L. Johnson, Nashville, Tennessee, for the Amicus Curiae, Tennessee Hospital Association.

Judge: KOCH

This appeal involves the application of the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. section 63-6-219 (Supp. 2009)] to a hospital system's business decision regarding the provision of vascular access services to patients in its member hospitals. The hospital system had customarily outsourced these services at several of its hospitals, but, following an audit, it decided to discontinue outsourcing the services and to begin providing them using nurses employed by its own hospitals. After several of the system's hospitals cancelled their vascular access services contracts, the vendor that had been providing the services filed two suits in the Circuit Court for Sumner County against the manufacturer of the catheters used to provide the services and one of its employees, a staffing affiliate of the hospital system and two of its employees, and the chief nursing officer at one of the system's hospitals. These suits, which were eventually transferred to the Circuit Court for Williamson County and consolidated, sought damages under numerous theories based on the vendor's allegations that the defendants, all of whom had played a role in the audit, had disparaged the manner in which it had been providing the vascular access services and had improperly interfered with its contracts. During discovery, the vendor sought copies of various records relating to the audit of its services. The defendants claimed that these records were covered by the privilege in Tenn. Code Ann. section 63-6-219(e). After reviewing the disputed records in chambers, the trial court determined that most of the requested records were covered by the privilege. The trial court also granted the vendor permission to pursue an interlocutory appeal to the Court of Appeals; however, the Court of Appeals declined to accept the appeal. We granted the vendor's Tenn. R. App. P. 11 application to address the trial court's interpretation and application of Tenn. Code Ann. section 63-6-219(e). We have determined that the trial court interpreted the privilege in Tenn. Code Ann. section 63-6-219(e) too broadly. Therefore, we vacate the portions of the trial court's discovery orders applying the privilege in Tenn. Code Ann. section 63-6-219(e) and remand the case to the trial court for further proceedings.

http://www.tba2.org/tba_files/TSC/2010/leemedical_052410.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2010/leemedical_DIS_052410.pdf


KIMBERLY POWELL v. COMMUNITY HEALTH SYSTEMS, INC. ET AL.

Court: TSC

Attorneys:

C.J. Gideon, Jr., Brian P. Manookian, and Heather Piper-Coke, Nashville, Tennessee, for the appellant, National Healthcare of Cleveland, Inc. d/b/a Cleveland Community Hospital.

Grace E. Daniell and James M. Johnson, Chattanooga, Tennessee, for the appellee, Kimberly Powell.

G. Brian Jackson and David L. Johnson, Nashville, Tennessee, for the Amicus Curiae, Tennessee Hospital Association.

Judge: KOCH

This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. section 63-6-219 (Supp. 2009)]. A former hospital employee filed suit in the Chancery Court for Bradley County against the hospital and an orthopaedic surgeon on the hospital's medical staff. During discovery, the former employee sought to depose the hospital's infection control director regarding the details of an investigation into postoperative nosocomial infections and her knowledge of whether the defendant surgeon had tested positive for infectious diseases. The hospital moved for a protective order on the ground that the requested information was privileged under Tenn. Code Ann. section 63-6-219(e). The trial court declined to issue a protective order after determining that the information sought by the former employee was not privileged because it had been created in the regular course of the hospital's business and because the infection control director was the "original source" of the information. After granting the hospital an interlocutory appeal, a divided panel of the Court of Appeals affirmed the trial court. Powell v. Cmty. Health Sys., Inc., No. E2008-00535-COA-R9-CV, 2009 WL 17850 (Tenn. Ct. App. Jan. 2, 2009). We granted the hospital's Tenn. R. App. P. 11 application for permission to appeal. We have determined that records received or made in the ordinary course of a hospital's business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn. Code Ann. section 63-6-219. We have also determined that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged. Finally, we have determined that the hospital did not waive its right to invoke the privilege in Tenn. Code Ann. section 63-6-219(e) with regard to the work performed by its infection control director in the context of a peer review proceeding.

http://www.tba2.org/tba_files/TSC/2010/powellk_052410.pdf

WADE concurring
http://www.tba2.org/tba_files/TSC/2010/powellk_CON_052410.pdf


BAILEY TOOL & MANUFACTURING CO. v. FORREST BUTLER ET AL.

Court: TCA

Attorneys:

Donald N. Capparella and Candi Renee Henry, Nashville, Tennessee, for the appellant, Bailey Tool & Manufacturing Company.

Samuel P. Funk and Mark T. Smith, Nashville, Tennessee, for the appellees, Forrest Butler and Servitech Industries, Inc.

Judge: BENNETT

This is a dispute between two companies that supply parts in the automotive industry. Company A claims that Company B tortiously interfered with its contract and with its business relationships. The trial court granted summary judgment on the grounds that there was no genuine issue of material fact as to causation and that Company B conclusively established the affirmative defense of justification. We affirm the decision of the trial court because Company B negated the element of causation.

http://www.tba2.org/tba_files/TCA/2010/baileytool_052410.pdf


JUDY K. FLAKE v. SAMUEL GUY FLAKE

Court: TCA

Attorneys:

Ronald W. Kim and William A. Wooten, Cordova, Tennessee, for the appellant, Samuel Guy Flake.

Stephen L. Hale, Bolivar, Tennessee, for the appellee, Judy K. Flake.

Judge: STAFFORD

This is an appeal from the trial court's order on Appellant/Husband's Petition for Release of Funds. After the trial court entered a Final Decree in this divorce action, the Appellant filed a petition for the release of his portion of the funds received from the sale of the marital home, which are currently being held by the clerk of the trial court. After a hearing, the trial court ordered that only part of the money may be released. The trial court ordered that the remainder be held until the conclusion of a separate tort action filed by persons not parties to the divorce action, in which Appellant was named as a defendant. Finding that no final judgment exists in this action, this Court dismisses the appeal for lack of subject matter jurisdiction.

http://www.tba2.org/tba_files/TCA/2010/flakej_052410.pdf


LUCY M. RAY v. SWANSON REALTY, LLC, ET AL.

Court: TCA

Attorneys:

Robert J. Foy, Smyrna, Tennessee, for the appellant, Lucy M. Ray.

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellees, Swanson Realty, LLC and Swanson Construction, LLC.

Judge: COTTRELL

The plaintiff home builder filed a complaint for breach of contract against a woman who refused to close on the sale of a home she had contracted to purchase. When the defendant failed to timely respond, the plaintiff filed a motion for default judgment and served the motion on the defendant by mailing a copy to her. She did not open the envelope, but wrote "return to sender" on it, and placed it back into the mail. The trial court granted the plaintiff a default judgment. The defendant subsequently filed a motion to set aside the default judgment, which the trial court denied. The defendant argues on appeal that she did not receive actual notice of the motion for default judgment, and that the trial court should have granted her motion to set it aside amend because of "mistake, inadvertence, surprise or excusable neglect." We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2010/rayl_052410.pdf


REGIONS BANK v. TRAILER SOURCE, ET AL.

Court: TCA

Attorneys:

David Murray Smythe, Nashville, Tennessee, for the appellant, Regions Bank.

Stephen V. Petix, San Diego, California; Richard Knell Smith, Nashville, Tennessee; Fred M. Acuff, Jr., Memphis, Tennessee, for the appellee, Hyundai Translead.

Judge: COTTRELL

A junior creditor sued the senior creditor claiming that the senior creditor's involvement in the sale of collateral, used trailers for tractor-trailer trucks, was commercially unreasonable. We agree with the trial court that the senior creditor, a bank, was subject to the commercially reasonable disposition of collateral rule. However, we hold that the bank's approval of the sale, arranged by the debtor, was not commercially unreasonable. Consequently, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2010/regionsbank_052410.pdf


ELLA G. ALEXANDER WADE v. FELICE A. VABNICK, M.D.

Court: TCA

Attorneys:

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, and Wendell L. Hoskins, II, Caruthersville, Missouri for the appellant, Ella G. Alexander Wade.

William D. Domico, Katherine L. Frazier, Jessica M. Hackett, Memphis, Tennessee, for the appellee, Felice A. Vabnick.

Judge: STAFFORD

This is an appeal from the trial court's award of discretionary costs. Appellant/Plaintiff voluntarily dismissed her claim without prejudice prior to trial, and Appellee/Defendant filed a motion for discretionary costs, which motion the trial court granted. Finding that Appellee/Defendant did not meet her burden of proof, and that the trial abused its discretion in awarding certain discretionary costs that are not contemplated by Tenn. R. Civ. P. 54.04, we modify the award to reflect a total discretionary fee award of $3,851.15. Affirmed as modified herein.

http://www.tba2.org/tba_files/TCA/2010/wadee_052410.pdf


STATE OF TENNESSEE v. DAVID NAGELE

Court: TCCA

Attorneys:

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, David Nagele.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Charme Prater Knight, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, David Nagele, appeals from the Knox County Criminal Court's denial of his motion to withdraw his plea to attempted aggravated sexual battery, a Class C felony, following correction of the judgment to reflect that the Defendant was subject to community supervision for life. We hold (1) that the trial court did not err in denying the motion and (2) that the Defendant is not entitled to plain error relief in his challenge to the constitutionality of the community supervision for life statute. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/nageled_052410.pdf


Constitutionality of including a non-viable fetus as a victim of certain crimes

TN Attorney General Opinions

Date: 2010-05-24

Opinion Number: 10-69

http://www.tba2.org/tba_files/AG/2010/ag_10_69.pdf

Law Enforcement Access to Information

TN Attorney General Opinions

Date: 2010-05-24

Opinion Number: 10-70

http://www.tba2.org/tba_files/AG/2010/ag_10_70.pdf

Greenbelt Rollback Tax Liability on Land Converted to Exempt Status

TN Attorney General Opinions

Date: 2010-05-24

Opinion Number: 10-71

http://www.tba2.org/tba_files/AG/2010/ag_10_71.pdf

Amending Transportation Act with Restrictive Caption

TN Attorney General Opinions

Date: 2010-05-24

Opinion Number: 10-72

http://www.tba2.org/tba_files/AG/2010/ag_10_72.pdf

Tennessee Education Lottery Corporation: Contract Amendments

TN Attorney General Opinions

Date: 2010-05-24

Opinion Number: 10-73

http://www.tba2.org/tba_files/AG/2010/ag_10_73.pdf

TODAY'S NEWS

Legal News
Passages
Legislative News
Supreme Court Report
Flood Impact
TBA Member Services

Legal News
Judge gives trial attendees dress code
Circuit Court Judge Lee Russell ruled Friday that when Matthew Wayne Patterson's June trial begins, no one can wear any clothing that make reference to the alleged victim, his death, how he may have died, the date of death, any remembrance or memorial of the victim's life or "any representation concerning the activity(ies) in which the parties were engaged in at the time of the death of the alleged victim." Rooster Marlin died while in a "wrestling match" with Patterson. Marlin's family and friends have worn T-shirts to pretrial hearings with his picture on it with the words "Exodus 20:13," which reads in most editions of the Bible as "Thou shalt not kill." Russell said if he allowed the T-shirts during the trial, "any conviction would be reversed by the Court of Appeals, in my opinion."
The Shelbyville Times-Gazette has more
Death row inmate asks court to change his sentence to life
In a response filed today, death row inmate Steven Michael West asks the Tennessee Supreme Court to commute his sentence from death to life. The document cites West's mental illness and that the "actual killer of the two victims in this case received a life sentence."
Read this and related documents
Four Tennessee executions possible in next year
The state attorney general's office has asked the Tennessee Supreme Court to set execution dates for three people, with a request to execute a fourth expected soon. If that happens, it would mark the first time the state has executed that many inmates in a single 12-month period in more than 50 years. This is welcome news for many victims' families, but troublesome for others. Bradley MacLean, a law professor and attorney with the Office of the Post-Conviction Defender, said that since 1997 at least 107 people who were convicted and sentenced to death got relief because of constitutional violations or legal mistakes in their trials.
The Tennessean looks at the death penalty
Veterans finding leniency in court
Leniency for veterans is a legal argument that is increasingly carrying the day in courts across the country. It's also sparking debate over whether such special treatment is fair. Even supporters disagree over what crimes committed by veterans who suffer from post-traumatic stress syndrome, severe brain injuries and other service-related maladies should qualify for special sentencing.
The Jackson Sun carried this AP report
Editorial: Juvenile ruling 'thoughtful and humane'
In an editorial, The Chattanooga Times Free Press comments on last week's Supreme Court ruling that juveniles who are convicted of crimes in which no one is killed should not be sentenced to life in prison without the possibility of parole. The paper calls the ruling "both thoughtful and humane. It properly balances the demands of the law with the emerging understanding of how the human brain develops and the consequences that has on individual behavior."
Read the editorial
Will child molestation case publicity affect future cases?
Will a highly publicized child molestation trial deter parents from bringing suspected abuse cases forward in the future, or does publicity actually make the public more informed about the judicial process and could help increase cases reported? Learn what some experts say about the case against former teacher Tonya Craft, from the Times Free Press.

Today the question got more interesting as Craft filed a lawsuit against her accusers in Federal Court in Rome, Ga., asking $25 million in damages from each of the defendants. Those named in the suit include parents of the children who brought charges against her, the lead detective in the case, the Catoosa County sheriff and officials who investigated the complaints.
Read more in the Chattanoogan
Washington 'insider' nominated deputy attorney general
The White House nominated James M. Cole as deputy attorney general Friday. Cole, 58, is a Washington white-collar defense lawyer who worked with Attorney General Eric H. Holder Jr. in the Department of Justice's public integrity section, where Cole was deputy chief before leaving in 1992.
Read more in the Washington Post
Passages
Nashville law firm founder Bill Ortale dies
William P. Ortale, 79, a founding member of the Nashville law firm Ortale, Kelley, Herbert & Crawford, died May 21. He was a graduate of Vanderbilt Law School. Visitation with the family will be tomorrow, May 25, at Nashville's St. Henry Church, 6401 Harding Road at 4 p.m., followed by a brief memorial service at 6:30 p.m. In lieu of flowers, donations may be made in his name to Friends of Warner Parks, St. Henry Church or Alive Hospice.
Read his obituary in the Tennessean
Legislative News
Lawmakers work toward consensus on budget
State lawmakers say they are hoping to reach a consensus this week on a budget plan. There are essentially three budget proposals being discussed: Democratic Gov. Phil Bredesen's original plan, an alternative proposal from Senate Democratic Leader Jim Kyle of Memphis, and a Senate Republican plan.
WATE.com carried this AP story
State rep's resolution gives thumbs up to Arizona law
State Rep. Joe Carr, R-Lascassas, is sponsoring a Tennessee resolution that honors Arizona's leaders for having "the initiative and the courage" to protect the nation's borders. Tennessee's lawmakers can't introduce new bills this late in the legislation session, but Carr said he might propose a Tennessee version of the law next year if re-elected. "It's my intent to take a very, very serious look at doing something very similar, if not the same thing," he said.
The Tennessean has this story
Supreme Court Report
Court will not intervene for Microsoft
The U.S. Supreme Court said today they will not intervene in Microsoft Corp.'s legal fight with Alcatel-Lucent, where Microsoft is accused of infringing on Alcatel-Lucent's patent. The disputed patent covers a method of entering information into fields on a computer screen without using a keyboard.
The Associated Press reports
Flood Impact
Help for flood victims
A toll-free legal assistance line is available for victims of recent storms and flooding in the counties that have been designated as federal disaster areas. Victims facing legal issues may call (888) 395-9297. Victims who qualify for assistance will be matched with Tennessee lawyers who have volunteered to provide free legal help.
Volunteer to help or learn more about recovery efforts
TBA Member Services
TBA expands insurance services for members
The TBA Member Insurance Solutions Program has been expanded to offer assistance to members in meeting their health, life, disability and other insurance needs. Working with Graham Swafford III of Capital Financial Group, the TBA is now able to provide members with exclusive benefits, personalized service, and pricing discounts. Services and products offered include: disability income insurance, business overhead expense insurance, group life, long-term and short-term disability income insurance, long-term care insurance, and group health, dental and vision insurance along with other employee related benefits.
Learn more about TBA Insurance Solutions now

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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