Bowen Productions v. Evans & Southerland/French (CA1 1/24/13)

This little special action may seem unimportant but we think it a useful reminder of something.

Defendant’s Disclosure Statement attached an expert’s report explaining why a non-party was at fault. Defendant then filed its Notice of Non-Party at Fault; the Court of Appeals says it only “cursorily” described the non-party’s fault (though it was more extensive than many non-party notices we’ve seen and probably more than a few we’ve written). Defendant later disclosed another report from another expert again detailing the non-party’s fault.

Plaintiff then moved to strike the notice because it hadn’t sufficiently described the non-party’s fault. The trial court granted the motion. Defendant took special action.

Is anyone in doubt of the result? Jurisdiction accepted, relief granted. “When a notice specifically identifies a non-party at fault, and timely disclosures explain the factual basis for the allegation of fault, the documents must be read together.”

You may wonder how a trial judge with any concept of civil discovery could grant such a motion. That’s the reminder: many don’t have any (although we don’t mean to draw conclusions about this particular judge). The trial bench is filling up with people whose sole or primary practice experience (to the extent they had much at all) was with criminal law. Expect more of this sort of ruling.

(link to opinion)