News & Analysis as of

Real Property, Financial Services & Title Insurance Update: Week Ending October 9, 2015

REAL PROPERTY UPDATE - Certiorari; discovery: Certiorari review was not available to an owner of property seeking review of a trial court’s order denying his discovery requests, where the order did not completely...more

Success in Discovery Requires More Than the Best-Laid Plans of Mice and Men

According to popular legend, in 1786, Scottish poet Robert Burns wrote that the “best-laid plans of mice and men often go awry” as part of his apology to a mouse whose nest he destroyed while ploughing a field. These words...more

Chicken Sandwich Recipe, Name Not Eligible for Copyright Says First Circuit - Colón-Lorenzana v. South American Rest. Corp.

Neither a chicken sandwich recipe nor its name is eligible for copyright protection. Colón-Lorenzana v. South American Rest. Corp., Case No. 14-1698 (1st Cir., Aug. 21, 2015) (Howard, C.J.)....more

A Perfect Storm for Automotive Patent Disputes?

As the automotive industry rebounds from its recessionary levels to an all time record level of spending on vehicles and healthy profitability, one of the key drivers of the increased vehicles sales has been increased...more

Nature of Company's Defenses Can Expand Scope of Discovery

There is no question that, in a books-and-records action, the scope of discovery is limited and such discovery is not an appropriate means of obtaining the same books and records sought in the action. In Chammas v. NavLink...more

District Court Rules That Smartphone Passcodes Are Testimonial; Protected by Fifth Amendment

In Securities and Exchange Commission v. Huang, the district court held that the Fifth Amendment protected two former employees against having to disclose their personal passcodes for company-issued smartphones to government...more

Appellate Court Rejects Claim That Borrower Must Be Permitted to Conduct Life of Loan Standing Discovery or Examine Bank Policies...

Standing is one of the top issues in foreclosure case law. So it comes as no surprise that the issue of standing is also a common focal point for discovery disputes in foreclosures. It has become common foreclosure defense...more

E-Discovery Update: Email Threading Cuts Costs, Reduces Production of Irrelevant, Potentially Privileged Documents

Email threading is becoming more and more prevalent in the world of e-discovery. It can be a valuable tool for cost-saving and efficiency in document review and production. Many parties are not familiar with or do not...more

Proposed Changes to Federal Rules of Civil Procedure for ESI

With the widespread use of electronic communication methods, discovery is often the most onerous, time-consuming and costly aspects of litigation. Case law has established that a party has a duty to preserve information when...more

Finding the Smoking Gun: 4 Search Tips for Quickly Finding Relevant Documents

In a recent survey conducted by Exterro, 39% (the largest group of respondents) said that searching through large amounts of data was the biggest obstacle they face in locating responsive data. To help legal professionals...more

Enablement: Multiple Measurement Methods Can Lead to the Same Result - Ethicon Endo-Surgery, Inc. v. Covidien, Inc.

Addressing the issues of indefiniteness and non-infringement for both utility and design patents, the U.S. Court of Appeals for the Federal Circuit reversed and vacated in part the district court’s grant of summary judgment...more

You’ve Got Mail! But Can You Get It Into Evidence?

With the advent of electronic discovery, emails and web pages are now common and fertile areas of discovery. However, until its 2014-2015 term, the Rhode Island Supreme Court had not addressed the means by which emails and...more

Be Thoughtful In Your Rule 30(b)(6) Deposition Preparation to Avoid The Threat of Sanctions

Failing to adequately prepare a corporate witness for his or her 30(b)(6) deposition can have serious consequences. In fact, courts treat an unprepared 30(b)(6) witness as a witness who simply never bothered to show up for...more

Reducing Your Company’s Exposure to Trade Secret Litigation when Key Employees Come and Go

THE NIGHTMARE SCENARIO - Within the span of two weeks, Mr. Smith and Mr. Wilson, two top managers from your $2 billion corporation, resign. Both managers had complete, unfettered access to your corporation’s trade...more

The Apex Doctrine: Protect Your Corporate Executives From Harassment

Because few cases proceed to trial, discovery and, more specifically, depositions are the focal point in most civil litigation. The permissible scope of discovery is usually very broad – permitting a party to discover...more

3rd District Issues Favorable Decision for Defendants Regarding Plaintiff's Discovery of Defendant's Work Product

In Seaboard Marine Ltd. v. Clark, 40 Fla. Law Weekly D2164 (Fla. 3d DCA Sept. 16, 2015) (copy attached), the Third held that the trial court erred in compelling the defendant to produce 91 relevant post-accident photographs....more

SEC Proposed to Amend Rules Governing its Administrative Proceedings

On September 24, the U.S. Securities and Exchange Commission (the “SEC”) proposed to amend rules governing its administrative proceedings. Key changes to the SEC’s rules of practice include: adjustment of timing of the...more

Important Changes in Litigating Oil and Gas Cases in Federal Court: What the 2015 Amendments to the Federal Rules Mean for Oil and...

Many oil and gas disputes are litigated in federal court. In recent years, federal litigation has undergone significant changes in discovery practices and rules. For example, with the increase in electronically stored...more

Indiana Tax Court Reverses Property Tax Ruling Based on Assessor’s “Trial by Ambush”

Even in a small claims proceeding, the Indiana Board of Tax Review must “uphold the fundamental tenet of our judicial system that neither party be subjected to a trial by ambush.” In RJK Trust v. LaPorte County Assessor...more

Proven Strategies For Handling Difficult Deposition Questions

When we prepare 30(b)(6) corporate representatives and executives for their depositions, they are often fearful that the questioning attorney will try to trick them into admitting something that is not entirely accurate. They...more

Discovery Rules Continue to Evolve for Cases Involving Social Media

Your social media content is not only susceptible to hacking; it’s also susceptible to disclosure requests from civil litigants (see our Sept. 14 blog post for more details) and even prosecutors without your consent if they...more

“That’s [Not] Privileged”: A Corporation’s Duty to Prepare a 30(b)(6) Witness Includes Sharing Knowledge of Legal Counsel

When a company is noticed for a deposition, it has a duty to prepare its witnesses to fully and unevasively answer questions about the designated subject matters. Companies may not realize, though, that the preparation must...more

KBR And Maintaining Privilege Throughout Investigations

Last month, for the second time, the D.C. Circuit in In re Kellogg Brown & Root Inc., No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), granted a writ of mandamus sought by KBR and vacated a series of district court orders...more

US Courts Affirm Expansive Discovery Under 28 U.S.C. § 1782

International litigants continue to rely on 28 U.S.C. § 1782 in disputes with US-based parties. While the statute was considered relatively obscure not long ago, it is now an important and frequently-used tool to obtain...more

Turf Wars: District Court Permits Expert to Use Replicas of Athletic Fields in Front of Jury

The plaintiffs, Fieldturf USA and Tarkett Inc. (collectively, "Fieldturf") filed a patent infringement action against Astroturf LLC ("Astroturf"). In defense, Astroturf intended to present expert testimony on anticipation...more

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