Evidence

News & Analysis as of

2015 Federal Rules of Civil Procedure Amendments: A Powerful Discovery Tool

The amended rules aid in controlling the scope of discovery and managing its risks. Two months have passed since the effective date of the 2015 amendments to the Federal Rules of Civil Procedure, which are applicable to...more

Guide to ESI Preservation Responsibilities 2016

Abstract - A guide for clients, lawyers, information technology staff and others interested in the litigation-related obligation to preserve electronically stored information (ESI) in United States litigation. The...more

Presenting and Recording Evidence During a Deposition

Lawyers and their support staff are usually familiar with basic trial technology. However, they don’t always consider the possibilities offered by using these technologies earlier — in the deposition setting. With some...more

A Change in Direction for Change in Condition?

On January 20, 2016, the South Carolina Court of Appeals handed down its opinion in Russell v. Wal-Mart Stores, Inc., 2016 WL 231216, and held that claimant is not required to prove a change of condition by objective...more

Is Discovery of Private Facebook Postings On Equal Footing With General Discovery Principles?

Are private Facebook postings entitled to more stringent protections from civil discovery? A significant string of New York Appellate Division decisions seemed to suggest that they are. But a divided panel in Forman v....more

Preserving the Chain of Evidence After an Auto Accident

The moments immediately following an auto accident can be stressful for drivers and passengers, especially when they sustain injuries. An accident scene can become a confusing hub of activity when police officers, tow trucks,...more

Amendments to FRCP 26(b) Put Significant Emphasis on Proportionality

Revisions to several key provisions of the Federal Rules of Civil Procedure took effect on December 1, 2015, and will have a significant impact on discovery procedure and practice in federal court. The aim of these revisions...more

Rule 26: What’s New, What’s Old, and What Still Needs to be Litigated

The amendments to Rules 26(b)(1) and 26(b)(2)(C) of the Federal Rules of Civil Procedure have been in effect for almost two months now. They are expected to change the way lawyers manage discovery and the way courts resolve...more

Can Plaintiffs Seek an Adverse Inference from Defendant Corporations' Privilege Assertions?

The attorney-client privilege benefits society by encouraging clients' frank disclosure to their lawyers, but it undeniably conceals highly relevant communications. Surprisingly, only a few courts have addressed plaintiffs'...more

Attorneys Must Become Scientists to Defend Against Bad Science

It’s true that science and law are systems intended to discover truth, the two don’t always work well together. Too often, in fact, subpar science can corrupt the judicial system, where it’s a lot easier to posit shaky...more

3 Ways to Improve Trial Pacing

One of the cornerstones in trying a good case is pacing. The attorney who proves everything proves nothing. It’s imperative that your case be pared down to its essential elements and presented concisely. Here...more

Court of Appeal of Alberta Allows Sharing Self-Incriminating Evidence Given in Securities Proceedings with Foreign Authorities

For many years, there has been a growing concern in Alberta and elsewhere as to what might happen when the subject of a compelled examination under Alberta securities law faces potential scrutiny in other jurisdictions; can...more

Evidence and Social Media: Notes from the Canadian Twitter Trial

On Friday, January 22, 2016, the Ontario Court of Justice released reasons in R. v. Elliott, 2016 ONCJ 35. The case involved allegations that the accused engaged in criminal harassment of two women by repeatedly communicating...more

T&H Case Study: Reconstructing the History of a City Block

Much of the work we do in support of environmental law and toxic tort cases involves compiling comprehensive site histories. We work with our clients to come up with cost-efficient research strategies to compile these site...more

A Roadmap for Summary Judgment in Alberta

In Hryniak v. Mauldin (Hryniak), the Supreme Court of Canada (SCC) opened the door for courts to grant summary judgment whenever the record provides “the evidence required to fairly and justly adjudicate the dispute[.]” In...more

Counts v. Meriwether USDC, C.D. California, January 5, 2016

District court grants defendants’ motion for summary judgment on copyright infringement claim brought by two screenwriters against creators of Fox sitcom “New Girl,” finding no evidence defendants had access to plaintiffs’...more

Freezing Injunctions In Support Of International Arbitration – The Role Of The English Courts

Arbitration is based on consent. An arbitral tribunal derives its powers from an agreement between the parties. Tribunals also take time to form and their orders are not binding upon third parties. Whilst this grants...more

Blog: Part VII Transfers – When Is The Independent Expert Obliged To Disclose The Documents He Relies On, As He Prepares His...

In Excess Insurance Company Limited & others, the Court was asked to sanction the transfer of an insurance business from three different insurers to a fourth. The Prudential Regulation Authority and Financial Conduct...more

Court dismisses application for mis-selling “fishing” exercise

The High Court has dismissed an application by a firm that alleged Barclays had mis-sold a swap, to require Barclays to disclose documents relating to other allegations of mis-selling involving two specific Barclays...more

California Appellate Court Clarifies Proper Amount of Evidence Required to Support Restitution Order

Question Considered in Graffiti Abatement Case - A recent California Appellate Court decision regarding restitution evidence in a graffiti abatement case clarifies the sort of evidence cities should present in...more

Court Finds Sanctions Inappropriate Following Plaintiff’s Failure to Establish Prejudice (Georgia)

West v. Talton, 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015) - In this case, the court granted the defendants’ motion to exclude plaintiff’s use of any argument or evidence of alleged spoliation. The plaintiff discovered that...more

Pro Te: Solutio Vol. 8 No. 3

Dear Client - Coming to a court near you (and soon): In our first article, “The 2015 Amendments to the Federal Rules of Civil Procedure: What You Need to Know,” we highlight upcoming changes that will impact discovery...more

Second Circuit Broadens Scope Of Expert Testimony Admissible In White-Collar Fraud Trials

In United States v. Litvak, 14-2902, the U.S. Court of Appeals for the Second Circuit vacated the conviction of a securities trader after concluding that the district court erroneously excluded his proffered expert witnesses....more

The Hong Kong Competition Ordinance - December 2015, the D Day

On 14 June 2012, the Hong Kong Legislative Council passed the first cross-sector competition law in Hong Kong, the Competition Ordinance (Ordinance). The Ordinance created the Competition Commission (the Commission), which...more

Recent Decision Clarifies Availability of Defences at the Leave Stage in Statutory Securities Class Actions

The Ontario Superior Court of Justice’s (Court) recent decision in Rahimi v. SouthGobi Resources (Rahimi) confirms that courts will consider and evaluate defences at the leave stage of a statutory secondary market disclosure...more

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