Evidence

News & Analysis as of

Friend (or Foe) Requests: Using Social Media In Employment Litigation

Seyfarth Synopsis: Social media is a potential goldmine of information when it comes to defending against employment lawsuits—pictures, status updates, location markers, “likes,” groups, and associated friends, all from the...more

Don’t Get Tagged – Avoiding Ethical Missteps with Social Media Investigations

As the number of people who interact on social media surpasses the one billion mark, attorneys are catching-on and turning to various platforms for investigative purposes and as informal discovery tools. We all know that the...more

Off The Record. Or Not?

In November 2007, an article titled “Off the Record,” which was co-authored by one of this article’s authors, was published in this Journal. It began by saying “[e]very good appellate lawyer knows that an appeal is...more

With No Proof of Duty to Preserve or Bad Faith, Plaintiffs’ Request for Sanctions is Denied: eDiscovery Case Law

In Reyes et. al. v. Julia Place Condominiums Homeowners Association, Inc., et. al., No. 12-2043 (E.D.L.A., Oct. 7, 2016), Louisiana District Judge Carl J. Barbier, in denying the plaintiffs’ request for sanctions, stated that...more

Swearing Behind A Reference With Reasonably Continuous Diligence

In Perfect Surgical Techniques, Inc. v. Olympus America, Inc., the Federal Circuit vacated and remanded a USPTO Patent Trial and Appeal Board decision in an Inter Partes Review proceeding, finding that the PTAB imposed too...more

Benedict’s Maritime Bulletin: Discovery and Disclosure: Civil Litigation Tools for Obtaining Evidence in the United States,...

The ever-increasing cost of civil litigation was once thought to be a unique trait of the United States civil justice system. However, the expense of civil litigation is on the rise across the globe, due in no small part to...more

No Winners in Rolling Stone Verdict

A verdict was announced November 4, in Nicole P. Eramo v. Rolling Stone, LLC, et al., Civil Action No. 3:15-CV-00023, striking a legal and financial blow for the publication and its journalist, Sabrina Rubin Erdely. A...more

The PTAB Review - November 2016

New Testimonial Evidence with Preliminary Responses: Panacea or Placebo? Just over three years ago, during a keynote speech at the AIPLA annual meeting, the Patent Trial and Appeal Board (PTAB) was criticized as a...more

Federal Circuit Weighs in on Evidentiary Challenge in IPR, Reversing PTAB

More often than not, evidentiary issues in IPR proceedings fail to make headlines because the Board will structure its Final Written Decision to avoid evidentiary challenges. Findings that a party’s motion to exclude is...more

Evaluating a Project’s “Exacerbation” on Existing Environmental Hazards

Substantial Evidence Proving “Exacerbation” Required, California Appellate Court Says - A significant decision interpreting the scope of the California Supreme Court’s ruling in California Building Industry Association...more

Evidence From LinkedIn, IMDB Used to Support Denial of Benefits

Be careful what you ask for. The Plaintiff in a recent case from the Central District of California learned that lesson when the Plan’s re-evaluation of her claim for benefits revealed that she was apparently working as a...more

Court Reverses No-Evidence Summary Judgment On Fiduciary Duty Claim Because Motion Was Not Sufficiently Precise

In Neurodiagnostic Tex, L.L.C. v. Pierce, the court reviewed a summary judgment entered regarding an employer’s breach of fiduciary duty claim. No. 12-14-00254-CV, 2016 Tex. App. LEXIS 11754 (Tex. App.—Tyler October 31, 2016,...more

Trump University Class Action Roaring Towards Trial

This is a big week for U.S. President-elect Donald Trump. The champagne glasses won’t be dry and put away before Trump’s lawyers will be arguing a series of pre-trial motions in Low v Trump University, a U.S. class action...more

Broadening of Indiana Collateral Source Statute

The issue comes up a lot in personal injury cases: may the defendant introduce the discounted amount the provider actually accepted for medical services as evidence to be weighed against the undiscounted bill the plaintiff...more

Growing Small Satellite Market Spawning Litigation

Virgin Galactic expanded and continued its attack on its former VP of Propulsion, Thomas Markusic, and his new company, Firefly Space Systems, this month. Markusic co-founded Firefly around the time he left Virgin Galactic,...more

Another Modest Proposal (This Time, About Discovery)

Bexis recently attended the “Emerging Issues in Mass-Tort MDLs Conference” sponsored by Duke Law School (those of us from Philly remember Duke as part of “Black Saturday” back in 1979). Several panels discussed various...more

The Death of Frye: The District of Columbia Embraces Daubert

In a landmark decision, the District of Columbia Court of Appeals recently adopted the Daubert standard, superseding the District’s nearly century-long application of the Frye test. In its October 20 decision on Motorola,...more

Five Considerations When Taking Depositions in Japan

Depositions in Japan involve a few extra logistical details. With proper planning and adequate lead time (at least 6 weeks, generally speaking), the following five special requirements mustn’t be a barrier to successful...more

Use of long-term climate projections for bearded seal listing not necessarily a bellwether for Endangered Species Act decisions

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a...more

Rolling Stone Rolls With Early Favorable Rulings

Rolling Stone is not the first media outlet to defend itself in a multi-million dollar trial this year. Gawker Media was recently hit with a $140 million judgment resulting from a suit by Terry Bollea (a.k.a. Hulk Hogan) for...more

Moore v. Mercer – What Defendants in Personal Injury Cases Need to Know

Although the amount a medical finance company pays for a lien might be relevant evidence of the value of services provided to an injured plaintiff, courts have discretion to exclude such evidence if it is minimally probative...more

Ready for Your Close-up? Five Tips for Using Videoconferencing Technology at Trial

From a technological standpoint, it is now relatively simple to present live video and audio testimony during a court proceeding of a witness located anywhere in the world. There are many advantages to presenting testimony in...more

California Court of Appeal Affirms Decision to Exclude Evidence of the Amount Paid by a Medical Financing Company to a Personal...

In Moore v. Mercer (filed October 21, 2016, C073064), the California Court of Appeal, Third Appellate District, ventured “down the rabbit hole into the upside-down world of health care billing” and held that evidence of the...more

Potential Secondary Effects of Regulatory Examinations: Evidentiary Issues and Preclusion in Parallel Litigation

Increasingly aggressive and adversarial examinations by state regulators can expose insurers to troubling evidentiary issues in subsequent individual and class action litigation. Plaintiffs’ counsel may seek to admit into...more

Court Rejects EEOC’s EPA Lawsuit Theory

Seyfarth Synopsis: The EEOC sued an employer for Equal Pay Act violations, claiming that Maryland Insurance Administration failed to pay three female fraud investigators the same wages as comparable male fraud investigators....more

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