Procedure

When can a discovery order be appealed?

Normally, a discovery order is not appealable because it is an interlocutory judgment, not a final judgment. Therefore, the only avenue for review is by application for a supervisory writ. But a recent decision by the Louisiana First Circuit reminds us of an exception to this rule: when the order involves discovery from a non-party to the case, it can be appealed. The rationale is that, as far as the non-party is concerned, the order is a final judgment because it resolves the entire dispute involving the non-party. Hughes v. Capital City Press, LLC d/b/a The Advocate, 2022-1133, p. 4 n. 3 (La. App. 1 Cir. 6/2/23), — So.3d —, 2023 WL 3861840. Other cases from the First, Third, Fourth, and Fifth Circuits say the same thing:

Although the appellant in these cases is usually the non-party from whom the discovery is sought, the First Circuit (in Hughes) and the Fourth Circuit (in Cannelside) have applied it to consider appeals by a party seeking discovery from a non-party.


La. 2nd Circuit rule for expedited writ applications

Common sense says that, if you file a writ application seeking expedited consideration, you should file as soon as you can. The longer you take to file, the more of a time crunch you’re imposing on the court of appeal, which the court’s judges won’t appreciate.

Earlier this year, the Louisiana Second Circuit adopted a local rule codifying that bit of common sense. Local Rule 17 requires a writ application seeking expedited consideration to be filed “as soon as possible after the trial court’s ruling, and in no event later than fifteen days from the applicable Time to File provision of U.R.C.A. 4-3, relating to civil and criminal writ applications.” In the accompanying comment, the court explains the rationale for the rule, a rationale applicable to any writ application in any court seeking expedited consideration:

This Court’s ability to address issues raised in writ applications requesting expedited review can be significantly impaired when applicants elect to wait until the last day of the thirty-day period for seeking review to request expedited consideration. Such late-filed requests often create unnecessary emergent circumstances which place a significant burden on this Court.

In adopting this local rule the Second Circuit appears to be following the Louisiana Supreme Court’s example. The LASC has a 10-day rule for writ applications seeking expedited consideration. (See this 10 Aug. 2022 blog post about that.)

Obviously, you shouldn’t antagonize the judges if you want them to look favorably on your writ application. Instead, enhance your ethos by showing the judges that you value their time.


Certified questions from federal district courts to the LASC

The Louisiana Supreme Court is considering an amendment of Rule XII, concerning acceptance of certified questions from federal courts. Currently, the LASC may accept certified questions from the U.S. Supreme Court or any U.S. court of appeals. The proposed amendment would allow the LASC to also accept certified questions from federal district courts. To read or download a copy of the proposed amendment, follow this link.

If you want to comment on the proposed amendment, you have until May 25 to do so. The LASC gives the following instructions for submitting comments:

PLEASE REVIEW THE PROPOSED RULE CHANGE AND SEND YOUR COMMENTS BY MAY 25, 2023, TO:

David Becker
Louisiana Supreme Court
400 Royal Street, Suite 1190
New Orleans, LA 70130

OR EMAIL YOUR COMMENTS TO:  [email protected]

Hat tip to my colleague Taylor Brett for flagging this item.


Let it go

If  your opponent files an appellate brief with offensive language, should you move for sanctions? Probably not. That’s the lesson from a decision rendered last month by the Louisiana First Circuit in Brumfield v. Village of Tangipahoa, 2022-CA-0730 (La. App. 1 Cir. 3/6/23), — So. 3d —.

In an earlier appeal in the case, one of the parties moved the First Circuit to impose sanctions on the other side for filing a brief with offensive language. The First Circuit denied the motion, holding that Uniform Rule 2-12.2(C) does not authorize the court of appeal to impose sanctions, and that any authority to impose sanctions under La. Code Civ. P. art. 863 is limited to the trial court. Brumfield v. Village of Tangipahoa, 2021-CA-0082 (La. App. 1 Cir. 12/20/21), 340 So. 3d 221.

Back in the trial court, the offended party moved for sanctions under art. 863 because of the offensive language in the other side’s appellate brief. The trial court obliged, awarding the moving party $1,500. The First Circuit reversed, holding that the sanction was not authorized by art. 863. The court reasoned that, by its terms, art. 863 applies only to “pleadings,” i.e. petitions, exceptions, written motions, and answers. See La. Code Civ. P. art. 852. Since an appellate brief isn’t a pleading as defined by art. 852, the First Circuit concluded that art. 863 didn’t apply. So the First Circuit reversed and imposed the appeal costs on the party who moved for sanctions. Result: the pursuit of sanctions accomplished nothing except to drag out ancillary litigation and to increase the moving party’s legal expenses.

My suggestion: take note of Brumfield, and use it the next time you have to talk someone down from chasing sanctions against an opponent because of an offensive brief. 


Trial court’s authority to dismiss an appeal for failure to pay costs

Last month, the Louisiana Fifth Circuit rendered a judgment reversing a trial court’s dismissal of an appeal because of the appellant’s failure to pay the appeal costs timely. In re Medical Reviiew Panel for Singleton, 22-CA-285 (La. App. 5 Cir. 3/1/23), — So. 3d —. It includes an informative discussion of purpose and proper use of the trial court’s authority under La. Code Civ. P. art. 2126(E) to dismiss an appeal for failure to pay costs, drawn from Reed v. Columbia/HCA Info. Serv., Inc., 99-1315 (La. App. 5 Cir. 4/25/00), 761 So. 2d 625.


Where to find current LASC rules

Here’s a tip for anyone practicing in the Louisiana Supreme Court: before relying on any LASC rule you find in a printed source, check the LASC’s web site for any updates. I happened to be wandering around the web site today and came across this page of amendments to the LASC’s rules, some of which I missed when they first came out. One example is the amendment to the rules governing amicus participation in oral argument, which became effective last December 6. The lesson here is simple: whenever looking up an LASC rule, look it up on the LASC web site.


Where to file an answer to an appeal

Under La. Code Civ. P. art. 2133, an appellee can file an answer to an appeal to obtain relief against the appellant that the trial court denied. The answer is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against [the appellee] in favor of the appellant ....” But Article 2133 does not say which court to file the answer in. Since the deadline to file it is 15 days after the record is lodged in the court of appeal, usually the answer is filed in that court. But some Louisiana decisions hold that it’s okay to file the answer in the trial court (presumably before the record lodged in the court of appeal). The most recent example is a decision last month on rehearing by the Third CircuitBoudreaux v. Take 5 LLC, 22-44 (La. App. 3 Cir. 12/14/22). The Boudreaux court followed the First Circuit’s 2016 decision in Succession of Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So. 3d 18, which is discussed in this 2017 blog post.

My suggestion: if you’re going to file an answer in the trial court (which I don’t recommend), do it well before the record is lodged in the court of appeal, so that the answer will be included in the record before the court of appeal. In Boudreaux, the appellee filed his answer the day before the return date for lodging the record, and the answer was included in a supplemental record lodged in the Third Circuit. The result might have been different if the appellee filed his answer after the return date for lodging the record; in that case, the answer would not have been in the record for the Third Circuit’s consideration.


New blog feature: Uniform Rules of La. Courts of Appeal

I’ve added a new feature to this blog: the Uniform Rules of Louisiana Courts of Appeal, presented in a format that (I hope) will make it easy to look up a specific rule. You can find a complete set of the Uniform Rules in one PDF document on some of the courts of appeal web sites. But none of the courts’ web sites has the rules in a format where you can look up just one specific rule. You can find my version of the rules by visiting this blog’s home page and looking for the rules on the right side under the heading Resources. Or you can create a direct link for yourself by following this link and bookmarking the page.


Amendments to Fed. Rules of Appellate Procedure

Speaking of rule changes, a few amendments to the Federal Rules of Appellate Procedure went into effect last December 1. Nothing major. FRAP 25(a)(5), on privacy protection, was tweaked to add a provision for appeals in benefits cases from the Railroad Retirement Board. And FRAP 42, on voluntary dismissal, was amended to make it easier to dismiss an appeal on agreement of the parties. To see the amendments in redline, follow this link.


New rules for La. courts of appeal

A reminder: On January 1, a new set of Uniform Rules for the Louisiana Courts of Appeal went into effect. While there were no revolutionary changes, many rules were updated to account for electronic filing (now available in all five circuits) and to abolish obsolete provisions. You can find the new rules on the First, Second, Fourth, and Fifth Circuits’ web sites. For a comparison between the current and prior versions of the Uniform Rules, see this Dec. 16, 2022 blog post.