News & Analysis as of

Federal Rules of Evidence

Clawback Agreement Doesn’t Save Documents Inadvertently Produced Twice from Privilege Waiver: eDiscovery Case Law

by CloudNine on

...In Irth Solutions, LLC v. Windstream Communications LLC, No. 2:16-CV-219 (S.D. Ohio Aug. 2, 2017), Ohio Magistrate Judge Kimberly A. Jolson, rejecting the idea that a clawback agreement always protects against waiver of...more

White-Collar Motive, Gun Crazy Movie

In 1950, producers Frank and Maurice King released Gun Crazy, a sometimes surreal Bonnie-and-Clyde story with an introverted, pacifist gun lover (Barton Tare, played by John Dall) and an English femme fatale sharpshooter...more

New Rules Tackle Authentication of Electronic Data

On December 1, 2017, two amendments to the Federal Rules of Evidence came into effect that impact how courts authenticate digital evidence. The addition of two categories to Rule 902’s list of self-authenticating documents...more

The New Rules Of Federal Evidence Have Arrived

by Farrell Fritz, P.C. on

Earlier this year, I wrote about the then-proposed changes to the Federal Rules, and how those changes (if implemented), could impact electronic discovery. (February 15, 2017 blog) Well, the time has come — effective...more

New Federal Rules of Evidence 902(13) and 902(14)

by Foley & Lardner LLP on

You’ve got a case headed to trial in a few short months, and among your exhibits are a number of copies of web pages. You know you need to authenticate them to get them into evidence at trial (and also know your judge is...more

It’s the End of Authentication (of ESI) as We Know It

by BakerHostetler on

Amendments to Federal Rules of Evidence 803 and 902 will become effective on Dec. 1 and will “govern in all proceedings thereafter commenced and, insofar as just, all proceedings then pending.” We previously analyzed the...more

FRE 902 Amendments Go Live in Celebration of E-Discovery Day

by Exterro, Inc. on

Whether or not they intended to give us all an E-Discovery Day gift or not, the federal court system has done just that. Adopted by the Supreme Court earlier this year, Federal Rules of Evidence provisions (13) and (14) will...more

Not So Fast: Limits of "Settlement Negotiation" Protections

by Ward and Smith, P.A. on

Think Twice Before Assuming Your "Settlement Negotiations" May Not Be Used Against You - Most people who are involved in resolving disputes or negotiating deals for their businesses have seen documents labeled...more

Is the Frye Standard Making a Comeback in Florida?

On July 11, 2017, the Florida Supreme Court accepted jurisdiction of a case in which it is expected to finally decide, conclusively, whether Florida courts are to apply the Frye or Daubert standard to determine admissibility...more

Must Class Counsel’s “Proof” that Rule 23 Is Met Satisfy the Rules of Evidence?

All class-action practitioners understand the importance of a court’s decision to certify a class—the pivotal point at which a putative class action can transform into a reality, promising vast settlement pressure on the...more

The PTAB Holds That Testimony Concerning Customer Statements and Their State of Mind Constitutes Hearsay

On September 22, 2017, the United States Patent Trial and Appeal Board (PTAB) issued a final written decision regarding claims directed to a switching regulator comprising a power switch and a control circuit. The PTAB found...more

Asking the Right Questions at the Expert’s Deposition to lay the foundation for your client’s Daubert Challenge (Part 1)

by Wilson Elser on

Deposing your adversary’s liability expert is not only a chance to delve into the details of the expert’s opinions, but the deposition also presents a great opportunity for defense counsel to explore the sustainability of the...more

Despite Clawback, Defendant’s Reckless Abandon of Rule 502 Bites Back

by Zapproved LLC on

Irth Sols., LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017). The court denied the defendant’s request to return privileged documents that it claimed it had mistakenly produced on...more

Court of Chancery Applies Privilege Non-Waiver Rule

by Morris James LLP on

In Re Cellular Telephone Partnership Litigation, C.A. No. 6885-VCL (Aug. 29, 2017) - This is an interesting decision because it applies a recent addition to the Delaware Rules of Evidence, Rule 510(f), which allows a court...more

Federal Circuit Says PTO Submissions can Waive Privilege to Future Communications

On July 20, 2017, the United States Court of Appeals for the Federal Circuit in In re OptumInsight denied OptumInsight’s petition for writ of mandamus on privilege waiver. The court held that the District Court for the...more

Causation Testimony Excluded in Heart-Lung Bypass Machine Death Case – Again

by Reed Smith on

Not even three weeks ago, back on July 28, we discussed the court’s rigorous application of Daubert in excluding expert medical causation opinions in Smith v. Terumo Cardiovascular Sys. Corp., a federal case in the district...more

“Toxic” Hearsay Upends Murder Convictions for Member of Bronx Drug Trafficking Crew

In a rare move, the Second Circuit (Jacobs, Pooler, Hall) overturned Armani Cummings’s convictions for murder, conspiracy, and multiple drugs and firearms offenses. The Court reversed based on violation of the hearsay...more

The Quiet Amendment: How E-Discovery Practitioners Benefit from Upcoming Changes to FRE Rule 902

by Exterro, Inc. on

A year and a half ago, the world of e-discovery was abuzz with Federal Rules amendment talk. And rightly so – the changes then greatly affected the process, particularly with Reasonableness (Rule 37) and Proportionality (Rule...more

Privilege Waiver: Is Your File-Sharing Site a Public Park Bench?

While courts and the Federal Rules of Evidence take an increasingly pragmatic approach to the question of when inadvertent disclosure of privileged information results in waiver, a recent federal magistrate’s ruling serves as...more

Divided Panel Debates a Jury’s Ability to Resist the Persuasive Power of Hollywood

In United States v. Monsalvatge (Nos. 14-1113, 14-1139, and 14-1206), a divided panel of the Second Circuit explored the contentious topic of introducing blockbuster films as evidence in a criminal prosecution. Defendants...more

New Amendments to Federal Rule of Evidence 902 Implicate Electronic Data Collection and Authentication

by Reed Smith on

Two proposed amendments to Federal Rule of Evidence 902 could have a significant impact on the collection of electronically stored information (ESI) and its admission at trial. While these amendments were aimed at reducing...more

And Now – From the Same Court That Gave Us Engle….

by Reed Smith on

That’s Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the most bizarre use of res judicata that we’ve ever seen – giving preclusive effect to a class action verdict despite also finding that the class was not...more

Second Circuit Rules That Defendant Who Pleads Guilty Mid-Trial May Testify as Cooperating Witness Against Former Co-Defendants

On Wednesday, February 15, the Second Circuit issued a published opinion in United States v. Barret, No. 12-4663(L) (Pooler, Hall, Carney), addressing an issue of first impression in the Circuit—whether testimony of a former...more

More Proposed Changes to the Federal Rules that Will Inevitably Impact Electronic Discovery and Federal Practitioners

by Farrell Fritz, P.C. on

The Federal Rules are undergoing more changes! And, effective December 1, 2017, there will be two new Federal Rules of Evidence (Rules 902[13], [14]) that will directly impact e-discovery in the federal courts. These Rule...more

‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception

by BakerHostetler on

Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic...more

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