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We’ve written frequently on ways that parties can recover their costs of suit — particularly deposition-related costs — at the conclusion of civil litigation. Costs related to deposition transcripts used at trial, deposition...more
The California Supreme Court issued its opinion in Ramirez v. Charter Communications, affirming in part that the arbitration agreement contained some substantive unconscionability but remanding the case to determine whether...more
Under what is called the American Rule, winning litigants normally pay their own attorneys’ fees. But in some situations, they can seek recovery of those fees from the losing adversary. Not surprisingly, such efforts...more
Commonly referred to as "excessive fee" litigation, class actions that allege retirement plan investments charge too much and earn too little have increased over the past two decades. Excessive fee cases are difficult to...more
When discovery goes so off the rails that a court declares a party “has stalled the progress” of a case, prejudiced its opponent and “wasted judicial resources,” there’s little doubt the sanctions sure to follow will be...more
Bocock v. Innovate Corp., C.A. No. 2021-0224-PAF (Del. Ch. Dec. 6, 2023) - In this recent letter opinion, Vice Chancellor Fioravanti considered whether the plaintiffs’ failure to provide specific objections to discovery...more
After a “hotly contested” four-year litigation that resulted in mutual, without prejudice dismissals, the plaintiff in Vitaform, Inc. v. Aeroflow, Inc., 2023 NCBC 76, said it would refile and try again. But first, the...more
At a time when remote depositions are commonplace, litigators weigh any number of factors when deciding whether a deposition should be conducted in-person or remotely. Does the case turn on the credibility of the witness, and...more
On April 20, 2023, Magistrate Judge Ann Marie Donio of the United States District Court for the District of New Jersey issued a comprehensive opinion concerning the appropriate level of sanctions for discovery misconduct. ...more
In 2017, three indirect-purchaser antitrust class actions were filed against Johnson & Johnson and Janssen Biotech, Inc., alleging that they engaged in anticompetitive conduct relating to the sale and marketing of J&J’s...more
Winning litigation parties sometimes seek recovery of the money they spent on their lawyers — either as a damage element or under a fee-shifting legal doctrine or contract provision. Not surprisingly, the losers usually seek...more
A recent discovery ruling from an Ohio federal magistrate judge offers a helpful primer on how corporate representatives should prepare for depositions. The ruling, In re FirstEnergy Corp. Securities Litig., No. 2:20-cv-3785...more
The ruling is also a reminder of the circumstances in which the court may order indemnity costs for such failures. On 29 July 2022, the UK High Court ruled in Cabo Concepts Limited v. MGA Entertainment (UK) Limited that...more
As failed commercial property deals go, the one at the heart of Miriam Equities, LLC v. LB-UBS-2007-C2 Millstream Road LLC, 2022 NCBC 3, was not outside the norm for a Business Court transaction autopsy. There was a missed...more
I could not resist writing about a new case that mentions electronic discovery (yes, I have a standing Lexis search), not because it creates any kind of great precedent or anything, but because it involves one of my all-time...more
Ohio- Substantially compliant acknowledgment clause WWSD, LLC v. Woods, 10th Dist. Franklin No. 20AP-403, 2022-Ohio-952- In this appeal, the Tenth Appellate District affirmed the trial court’s decision, agreeing that...more
Since the Supreme Court’s 2014 decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., district courts have had expanded discretion to award prevailing party attorney’s fees in “exceptional cases” under the Patent...more
Discovery in a complex commercial case can feature its fair share of mayhem, particularly where it includes a large document production. Yet, where parties plan and execute information exchanges with reasonable diligence,...more
As if subpoena practice is not expensive and time-consuming already, there are times in which even a subpoena will not suffice to obtain a third-party’s records. Federal statutes may create confidentiality issues, or a state...more
The author presented the following paper at the 2020 Class Actions National Institute of the American Bar Association. What makes mediating a class action different from mediating an individual case? In both settings,...more
Few litigators like discovery. It can be extensive, expensive, and irritating. It can also lead to a motion to compel and the unpleasantries that often surround those motions. In general, Fed. R. of Civ. P. Rule 37(a)(5)...more
Effective September 1, 2020 (the “2020 Amendments”). and January 1, 2021 (the “2021 Amendments”) two sets of amendments to the Texas Rules of Civil Procedure affect three key areas of civil cases filed after those dates: (1)...more
This month’s Friday Five covers cases relating to: a court’s decision to hold an evidentiary hearing where factual disputes precluded summary judgment; dismissal of a claim for life insurance benefits of an ex-spouse who...more
The defendant sought to vacate an arbitration award, arguing that the arbitrator prejudiced the defendant by refusing to order discovery it requested and failed to apply California law to the analysis of attorneys’ fees and...more
A federal judge in California awarded severe sanctions on Dec. 4, 2019 in the case of CrossFit, Inc. v. National Strength and Conditioning Association. CrossFit sued the National Strength and Conditioning Association (NSCA)...more