Litigation & Trials Proposed Changes to Rule 30(b)(6) Spark Support, Pushback, and New Suggestions By Brian A. Zemil If adopted, those changes would impose ongoing meet-and-confer obligations in connection with depositions of organizations.
Litigation & Trials Spoliation Trial by Jury By Brian A. Zemil Sanction litigation of lost ESI has evolved into a cottage industry.
Environment Appeals Court Embraces An “Issues Class” By Andrew J. Kennedy Broad view suggests trend toward more class actions.
Litigation & Trials From Witness Prep to Dep: Temper Your Inner Coach By Brian A. Zemil There is a fine coaching threshold that all lawyers must toe when prepping a witness for deposition.
Intellectual Property Do “Costs” Equal “Fees” Under Rule 41(d)? It Depends on the Court By Anthony R. McClure Circuit court chooses sides in circuit split over attorney fees after voluntary dismissal.
Civil Practice & Procedure A Skeptical View of Rule 36 By Charles S. Fax Boilerplate objections of Requests for Admission are themselves objectionable.
Civil Practice & Procedure Why Do Lawyers Still Make Boilerplate Objections to Civil Discovery? By Charles S. Fax The law is clear: Boilerplate objections are disallowed.
Employees Failure to File Surreply Leads to Waiver on Appeal By Matthew S. Mulqueen Appellate court cites trial court’s local rules in decision.
Civil Practice & Procedure Why Don't Federal Judges Follow the (Discovery) Rules? By Charles S. Fax Learn how to manage the discovery process to achieve proportionality.
Discovery Guidelines Emerge with Rise in E-Discovery of Employee Devices By Andrew J. Kennedy The Sedona Conference provides principles for companies grappling with BYOD.
Litigation & Trials Foreign Online Sales Extends Personal Jurisdiction Across the Atlantic By Andrew J. Kennedy Decision opens door to potential deluge of website based personal jurisdiction claims.
Civil Practice & Procedure Cost-Shifting in Discovery after the 2015 Amendments to Rule 26 By Charles S. Fax What has happened to cost-shifting in discovery since December 1?
Litigation & Trials Federal Circuit Sets New Venue Test Martha L. Kohlstrand Now a remote employee's place of residence alone is not sufficient to establish patent venue.
Civil Practice & Procedure Rule 26 to Change: Limited Privilege for Draft Reports and Communications By Charles S. Fax Since it was last amended, Federal Rule of Civil Procedure 26(a)(2) has bedeviled lawyers.
Litigation & Trials Confusion over Preliminary Injunction Standard Clarified, but Not Settled Kelso L. Anderson Third Circuit reasons only two of four elements dispositive.
Civil Practice & Procedure The Perils in Appearing Pro Hac Vice By Charles S. Fax In-state counsel and pro hac counsel must be thoroughly familiar with the precise requirements in their locale.
Civil Practice & Procedure When Overbilling Leads to Disciplinary Sanctions By Charles S. Fax Pop quiz: Those of you who have never had a fee dispute with a client, raise your hands. I’m waiting. How about those of you who haven’t had a fee dispute in the past year? I suspect I’ll see only a few hands.
Litigation & Trials What Can You Disclose in Moving to Withdraw as Counsel? By Charles S. Fax Advice on how much to tell your judge when you're making your motion to withdraw
Civil Practice & Procedure The Parameters and Pitfalls of Payments to Fact Witnesses By Charles S. Fax There are ethical concerns relating to the compensation of fact witnesses, and the rules can vary from state to state.
Civil Practice & Procedure The Hole in Rule 30 By Charles S. Fax Rule 30 lacks language concerning where a deposition should be held. Here's what to do in the absence of guidance in the rule itself.
Civil Practice & Procedure A Primer on Rule 12(f) Motions to Strike By Charles S. Fax If you are contemplating a Rule 12(f) motion—or must defend against one—it would be well to review the Blevins opinion closely.
Discovery Outside-the-Box Discovery Sanctions Reversed for Lack of "Clear Notice" By Charles S. Fax Discovery abuse is widespread and requires corrective action by the judiciary.
Discovery Serial Abuse of Discovery Rules Warrants Disbarment By Charles S. Fax Attorney disbarred after serial misconduct over a protracted period of time.
Civil Practice & Procedure Supreme Court Reminds Bar of Limits on Counsel's Duty to the Client By Charles S. Fax What happens when counsel dictates a petition and counsel signs it?
Civil Practice & Procedure Qualcomm Lives! Lawyers Beware By Charles S. Fax Judges should proceed carefully when considering arguable misconduct by lawyers under Rule 26(g).
Civil Practice & Procedure Outside-the-Box Sanctions Imposed for Abusive Defense of Deposition By Charles S. Fax Judge imposes sanctions after meticulous application of rules.
Civil Practice & Procedure Standing Committee Approves Proposed Rules: The Judicial Conference Is Next By Charles S. Fax Proposed Rule 37(e) promises to bring rationality and consistency to the developing law of spoliation.
Civil Practice & Procedure Less Is More: Proposed Rule 37(e) Strikes the Right Balance By Charles S. Fax The new Rule 37(e) is based on the common law duty to preserve relevant information when litigation is reasonably foreseeable.
Civil Practice & Procedure Big Changes on the Horizon for the Federal Rules By Charles S. Fax Major changes are in the works for key provisions of the Federal Rules of Civil Procedure, including limitations on discovery and spoliation sanctions.
Civil Practice & Procedure Proposed Changes to Federal Rules Prompt Pushback By Charles S. Fax The Civil Rules Advisory Committee, in response to criticisms, withdrew some of its recommendations for changes to the Federal Rules.
Civil Practice & Procedure A Tale of Discovery under the Hague Convention: Was the Expense Worth It? By Charles S. Fax Rule 30(b) of the Federal Rules of Civil Procedure authorizes the taking of a deposition in a foreign country. But is the expense worth it?
Civil Practice & Procedure When Is a Motion to Dismiss Not a Motion to Dismiss? By Charles S. Fax When may 'extrinsic' exhibits that have not been pled in the complaint be used to support or oppose a Rule 12(b) motion to dismiss?
Civil Practice & Procedure A Trend Toward Cost-Shifting in Discovery? By Charles S. Fax In a growing number of discovery decisions, judges have invoked Rule 26 to impose cost-sharing.
Civil Practice & Procedure Federal Spoliation Rule Moves Forward By Charles S. Fax There is a need for a uniform standard for rules to guide counsel in all federal courts.
Civil Practice & Procedure Taking the Fun Out of Rule 45 By Charles S. Fax Proposed amendments to Rule 45 will become effective in 2013 absent congressional action.
Civil Practice & Procedure Why You Must Read the Local Rules By Charles S. Fax Consulting local rules ultimately saves time and expense.
Civil Practice & Procedure A Modest Proposal: Discard Spoliation Sanctions By Charles S. Fax District courts have recognized the duty to preserve and the concomitant availability of sanctions for spoliation.
Civil Practice & Procedure Does Federalism Work for the Federal Rules? By Charles S. Fax Is "federalism," as it is understood, a good thing?
Civil Practice & Procedure One E-Discovery Trap and How to Avoid It By Charles S. Fax Zuckerberg suit moves forward, framing important e-discovery issues concerning authenticity of documents.
Civil Practice & Procedure Does the Proposed Congressional Amendment to Rule 11 Solve a Problem or Create One? By Charles S. Fax The Rules Enabling Act is the best means of ensuring that any modification of the rules achieves its intended purpose.
Civil Practice & Procedure Privilege Logs and Inadvertent Waiver: Lawyer Beware By Charles S. Fax Tread carefully in areas where judicial opinion is divided.
Civil Practice & Procedure To Tell the Truth By Charles S. Fax What do you do when your client testifies falsely during a deposition?
Civil Practice & Procedure Proportionality in E-Discovery: Wishful Thinking? By Charles S. Fax Can “proportionality” be applied to a duty to preserve that arises before the lawsuit is filed?
Discovery Instead of Revising the Rules, Why Not Simply Enforce Them? By Charles S. Fax Recent studies recommend making significant changes to the Federal Rules.
Civil Practice & Procedure Greater Efficiency in Civil Procedure By Lorna G. Schofield Reform is needed, but what tools are available now to ease pretrial and trial burdens on counsel and clients?
Civil Practice & Procedure Professionalism Undermined by Misconduct in Deposition By Charles S. Fax Professionalism and collegiality among adverse counsel are essential to the litigation process.
Civil Practice & Procedure Technical Amendments to Rules in 2009 Presage Further Changes in 2010 By Charles S. Fax Changes to the Federal Rules of Civil Procedure went into effect on December 1, 2009.
