Evidence

News & Analysis as of

Is That Covered? Lost Insurance Policy

Many liability policies are triggered when an event giving rise to a covered claim occurs, rather than when the claim is asserted or filed with the court. This is often true of the most common type of liability coverage -...more

Pretrial Motions Are Decided Before Trial

Helios Software, LLC, et al. v. Spectorsoft Corporation, C.A. No. 12-81-LPS -MPT, May 22, 2015 Stark, C. J. The court makes various pretrial rulings in advance of a June 15, 2015 jury trial. ...more

Status Updates: Facebook Posts—Reliable Evidence?; Quora Post Costs Applicant a Job; a New Ephemeral Messaging App

Facebook: Fact or fiction? These days, courts are more and more frequently faced with disputes over whether, as part of the discovery process, a litigant should be entitled to view the opposing party’s social media posts. As...more

ITC Affirms Joint and Several Liability of Counsel for Payment of Monetary Sanctions Based on Client's Spoliation of Evidence

On April 30, 2015, the International Trade Commission issued the public version of its opinion reviewing ALJ Thomas B. Pender’s Initial Determination in Investigation No. 337-TA-883, finding the Respondents in default due to...more

The $5 Million CAFA Question: Can You Provide Evidentiary Proof?

In December, we wrote about the recent Supreme Court decision in Owens v. Dart Cherokee Basin Operating Co. In Owens, the Court held that class action defendants need not provide evidentiary submissions in support of their...more

Effort to Hide Facebook Evidence by Deactivating Account Ends Badly for Louisiana Man

As social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts. In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff...more

“After” What? Subsequent Remedial Measures Excluded In Zimmer Evidentiary Win

Last weekend, we celebrated Mother’s Day. As we contemplated the text message and the Tufts University mug we received from the Drug and Device Rock Climber, it occurred to us that we could hardly remember a time before that...more

Daubert In Virginia State Court: Where Do Things Stand Now?

The past few months have seen a flurry of developments as to the extent to which Daubert and its progeny are authoritative in Virginia state court proceedings....more

Aquaplane accidents – what is sufficient evidence to prove causation? Tinworth v Haydon & NRMA

NRMA have successfully defended to the High Court a claim for personal injuries as a result of a single vehicle aquaplaning accident. A roadside pedestrian alleged the driver had been negligent in travelling at the speed...more

Laptops, Border Checks and The Fourth Amendment

Developments in law are sluggish compared to the rapid rate of technological advancement, and courts must constantly apply old legal principles to technologies which were not contemplated at the time the laws were enacted. ...more

Missouri Appellate Court Rejects Evidentiary Hearing, Reinstates Asbestos Class Claims

Finding that only a narrow evidentiary review is appropriate when certifying a class under Missouri state law, a Missouri appeals court reversed a trial court’s decision to deny class certification in a suit alleging asbestos...more

The Preliminary Merits Test for Secondary Market Claims is Not Just a “Speed Bump” to Certification: The Supreme Court of Canada...

Following amendments made in the last decade to various provincial Securities Acts to include statutory causes of action in the secondary market against public issuers for misrepresentation and/or failure to make timely...more

April 2015: Trial Practice Update

Admissibility of Third Party Postings on Social Media Pages. This article focuses on whether statements posted by a third party on a person’s Facebook “wall” or similar social media page are admissible for their truth...more

Lone Pine Order Reversed: Rocky Mountain Low

We think Lone Pine orders are fair and useful tools, and we believe that courts should use them more often, not less. We learned last week that the Colorado Supreme Court disagrees, at least when reviewing the particular...more

The “Totality of the Specification” Can Override a District Court’s Factual Findings - Enzo Biochem Inc. v. Applera Corp.

Giving little deference to the district court’s factual findings, the U.S. Court of Appeals for the Federal Circuit reversed a district court’s claim construction in a long-running dispute relating to a patent for labeled and...more

Colorado Supreme Court Rejects Orders Requiring Plaintiffs to Present Early Evidence Supporting Their Toxic Tort Claims

In an April 20, 2015, decision that was highly anticipated by the energy industry, the Colorado Supreme Court rejected a procedural device called a “Lone Pine” order that requires plaintiffs to make a threshold evidentiary...more

California Court Explains the Interrelationship Between the Resolution of Necessity and Project in the Manner Proposed in an...

One of the issues often disputed between public agencies and property owners in eminent domain actions is the assessment of severance damages, and in particular, whether damages should be based upon (i) the terms of the...more

SCC Clarifies Law on Admissibility of Expert Evidence

The Supreme Court has released its decision in White Burgess Langille Inman v. Abbott and Haliburton (2015 SCC 23) in which it considered whether the standards for admissibility of expert evidence should take into account the...more

Trademark Review | April 2015

The Supreme Court Rules TTAB Findings May Have Preclusive Effect in Later Federal Court Proceedings - B&B and Hargis have long contested each other’s rights in the mark "SEALTIGHT" for fasteners. B&B was the first to...more

LabMD Litigation Updates

We have been following this case closely. On April 16, the administrative law judge in the FTC v. LabMD case denied LabMD’s request to exclude the FTC from introducing new evidence into the proceeding regarding how Tiversa...more

Wilson v. The Walt Disney Company - USDC, N.D. California, April 16, 2015

In copyright infringement action concerning trailer for Disney’s blockbuster film Frozen court denied both parties’ motions for summary judgment, finding that plaintiff established genuine factual dispute as to Disney’s...more

State v. Bernstein - Arizona Supreme Court Clarifies Court’s Gatekeeping Role In Determining Admissibility Of Expert Evidence...

Eleven defendants charged with aggravated driving under the influence had their blood tested by the Scottsdale Crime Laboratory. Defendants moved to exclude the evidence of their blood alcohol (BAC) results under Rule 702,...more

Texas Justice Provides an Evidence Solution

Have you ever been in a situation where you have reliable information that an organization has infringed your intellectual property rights, but you do not have actual “evidence” in-hand? This article discusses a procedure...more

USPTO makes changes to AIA post grant proceedings

The U.S. Patent and Trademark Office will be making a series of rule changes to America Invents Act reviews. Some will be effective immediately, others will be implemented in phases. The rule changes are a direct response to...more

Plaintiff in Foreclosure Action Snared by Evidence of Damages, Attorney’s Fees & Costs

In Colson v. State Farm Bank, F.S.B., Case No. 2D13-5526, Florida’s Second District Court of Appeals just reversed a final judgment of foreclosure entered in favor of the plaintiff, finding that a “total lack of evidence as...more

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