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The latest developments in ethics, discovery, attorney-client privilege, trial practice, and more—written by litigators, for litigators.

2017

Careful review of policies and reservations of rights letters is critical.

National survey summarizes ethical rulings related to social media use by attorneys.

Relief defendant must show valid claim to funds to avoid enforcement forfeiture.

Consumer agreements that prohibit public injunctive relief violate public policy.

Court properly denied continuance preventing replacement of conflicted expert.

Sanction of $500K reversed notwithstanding lack of diligence.

Lawyers should engage in fact-based assessments to determine what efforts are reasonable.

Rule limits number of appearances and allows trial court to examine non-resident lawyer.

Work-product protection upheld where there was no act in furtherance of a crime.

Growing circuit court split confuses appropriate time to address element.

Past representation will bar involvement in "substantially related" case.

Sanctions reversed despite repeated sustained objections regarding mental history.

Be sure your objections comply with specificity required by amended rules.

Court finds arbitration agreement from attorneys' emails containing essential terms.

Rulings serve as harsh reminder to pay heed to statutes of limitation and contract clauses.

Opinion joins growing body of cases interpreting recent Supreme Court decision.

Choice of forum to resolve a discovery dispute may preclude effective appeal.

Abstention does not apply to ecclesiastical dispute.

Ongoing relevancy objections no basis for halting proceedings, even if questions aimed at separate case.

Arms-length negotiations involving third parties can become subject to discovery.

Advertising rule revisions aim to reduce ethical risks of online communications.

Statutory rapist can continue to seek visitation with child.

AUSA’s relationship with FBI agent violates misconduct and conflict of interest rules.

Decision refuses to apply prior-knowledge exclusion for claims based on past wrongful acts.

D.C. Circuit gives president power to fire CFPB director, but says agency can still operate.

Appeals dismissed when merits brief argued different issue than petition of certiorari.

Florida Supreme Court resolves insurance coverage split.

New formal opinion enhances protection to referring attorneys.

Clause in retainer agreement providing 15-day billing entry objection found unenforceable.

Arbitrator exceeds authority interpreting silence as ambiguity.

D.C. ethics committee urges caution when expressing views on social media.

Focus on proportionality and forget “reasonably calculated,” court says.

Court adopts “related question approach” in requiring party to answer discrete subparts.

DWI felony conviction in another jurisdiction triggers instant disbarment.

Counsel must advise clients regarding weak cases.

Law clerk cannot act as judge without running afoul of ethical rules.

Lawyer's interviews with former employees are fully discoverable under new bright-line ruling.

Federal circuit decision applies Iqbal to patent complaints.

Trend continues as Sixth Circuit reaches same conclusion as First, Third, and Tenth.

Rule amendments streamline proceedings, but some needed changes remain unaddressed.

Holding bench trial not appropriate sanction for failing to file pretrial disclosures.

Federal court relies on plain language of Rule 44.1 to resolve issue of first impression.

 


2016

Arbitration agreement informs court who decides if class arbitration is available.

Medicare Secondary Payer Act creates private cause of action against law firms.

Tenth Circuit says injunction and disgorgement are not penalties subject to time bar.

Amended rule prohibits lawyer harassment and discrimination.

Court continues trend on waiver validity and widens circuit split.

Decision widens jurisdictional split and highlights conflict over marijuana law.

Decision emphasizes severity of punishment possible when senior managers destroy evidence.

Client cannot obtain communications between attorneys and law firm's general counsel.

Terminating sanctions reversed in favor of a prohibition on the presentation of evidence.

Plaintiffs may be required to pay attorneys' fees from prior action when refiling.

Expert's violation of smoking testimony ban insufficient to sanction counsel.

Proffer of expert opinion based on private data raises strategic suggestions.

Court remands case to district court to apply elevated standard for trademark infringement.

State ethics committee cracking down on comparative attorney advertising.

Failure to follow California procedures for determining privilege causes disqualification.

Decision follows trend and seeks to eliminate ambiguity in clock-triggering event.

Court finds that attorneys can be prosecuted for social media investigation tactics.

Rule does not require parties to produce all potentially relevant information, court says.

Court abused its discretion by not considering declarations, appellate court finds.

Non-compliance with court orders to acquire technological proficiency leads to discipline.

Circuit court applies Supreme Court's nerve center test for principal place of business.

Appellate court expands scope of FMLA liability to individual supervisors.

Law firm has no duty of care absent intent to benefit a non-client plaintiff.

Expert's violation of smoking testimony ban insufficient to sanction counsel.

Proffer of expert opinion based on private data raises strategic suggestions.

Court remands case to district court to apply elevated standard for trademark infringement.

State ethics committee cracking down on comparative attorney advertising.

Failure to follow California procedures for determining privilege causes disqualification.

Decision follows trend and seeks to eliminate ambiguity in clock-triggering event.

Court finds that attorneys can be prosecuted for social media investigation tactics.

Rule does not require parties to produce all potentially relevant information, court says.

Court abused its discretion by not considering declarations, appellate court finds.

Non-compliance with court orders to acquire technological proficiency leads to discipline.

Circuit court applies Supreme Court's nerve center test for principal place of business.

Appellate court expands scope of FMLA liability to individual supervisors.

Disclose extent of research to venire or don't do it at all, judge says.

A difference of opinion among physicians does not establish fraud.

Ruling on release of overtime is one of first impression.

Court awards sanctions of higher attorney fees than charged.

Employer may terminate employee for use of medical marijuana though legal in the state.

Advisory opinion addresses where to keep flat fees and related issues.

Juror's relationship with Facebook friend too attenuated to be misconduct.

Malpractice involving illegal sentence only requires post-judgment relief.

Bar association says LinkedIn pages are attorney advertising only if certain criteria met.

Intentional mislabeling claim not preempted by federal statute.

Police may replicate private search of phone but can go no further without a warrant.

State Bar recommends amending rules to permit representation in marijuana industry.

Impossibility preemption precludes drug manufacturer from changing FDA-approved formulation.

Amended federal rules now mandate that discovery be proportional to case needs.

Economically adverse interests relating to similar inventions is not unethical.

Rules 4, 16, 26, and 34 accelerate discovery and may promote earlier settlement.

Waiver of privilege is prerequisite to employee's assertion of advice-of-counsel defense.

Swift action required by affected companies to comply with EU privacy laws.

Privileged mediation discussions cannot be used to defend malpractice claim absent waiver.

Copyright holders must consider fair use prior to takedown notice for online videos.

Limiting scope of deponent's relevant knowledge is no defense for an unprepared witness.

Bar cannot prohibit lawyers from truthfully advertising expertise.

Insurer's reservation of rights may create conflict.

Amended FRCP Rule 37(e) provides a uniform standard for analyzing ESI discovery violations.

Agreement with client for interest in patent in lieu of legal fees violates ethics rule.

Second Circuit breaks with Fifth Circuit and concludes reporting to SEC not necessary.

Staffing agencies and clients have independent obligations to disabled employees.

Court follows trend to apply "holistic" approach to award $4.1 million in attorney fees.

Florida high court rejects referrals from non-lawyer-owned agencies.

Increased risk of future harm and harm mitigation expenses establish Article III standing.

Court increases special master's award recommendation and rejects partner fee discount.

 


2015

Privilege not compromised by referencing investigation in deposition or pleadings.

The International Trade Commission found Denton's "Swiss verein" is one firm.

Substantial pleading burdens imposed for asserting a false advertising claim.

Court adopts new primary beneficiary test.

Court approves attorney's warning that criminal plea could result in deportation.

Federal court equates airplane to a ship because the plane, prior to crashing, flew over the sea.

Interpreting "electronic storage" proves difficult in the face of evolving technology.

Limited local counsel representation agreements may not also curtail ethical obligations.

First change in 57 years would affect citizenship of unincorporated entities, such as LLCs.

Uber decision will likely force rethinking of arbitration agreements.

Discovery misconduct warrants new trial under Rule 60 but not Rule 59.

Court strikes redacted hours and time spent on media communications and clerical tasks.

ABA Section of Litigation's Rules Amendments Roadshow explains changes.

District court concludes that state consumer protection laws advance federal scheme.

SCOTUS says Bankruptcy Code does not exempt costs of fee-litigation from American Rule.

"Death penalty" discovery sanctions issued for repeated contempt of discovery orders.

Court approves a class action settlement with payout cap and ascertainability issues.

Is it a problem when jurors introduce their own theories into a case?

Permanent injunction not required for prevailing plaintiff to collect under California law.

Employee names not mandatory as purpose of pleadings to provide defendants notice.

Defendant has no privacy right over cell phone records that do not reveal communications.

State supreme court holds actual conflict is necessary for attorney disqualification.

Battle over constitutional right to trademark "disparaging" terms heats up.

Public's interest in court records is enough to allow intervention.

In-house attorney ordered to disclose source of information for breach of contract claim.

Law firms' merger causes incurable simultaneous representation of adversaries.

Vicarious liability limited where employer has effective anti-harassment policy.

Attempt to prevent domestic resale of foreign-made goods deemed "copyright misuse."

No sanctions for a nonparty that did not retain nine-year-old documents.

Fee award for post-judgment work reversed by the Sixth Circuit.

Corporate charter does not supersede prior LLC agreemen''s arbitration requirement.

Federal court sanctions firm for prosecuting baseless and time-barred claims.

Company's discussions with risk management are unprotected by the attorney-client privilege.

Court resolves conflict over trial court's authority in dismissed, settled cases.

Court cites attorney lack of credibility justifying $1 million sanction for causing mistrial.

District court dismisses Commodity Exchange Act claim, citing CFTC order.

Despite receipts, million-dollar judgment vacated after defendants deny knowledge of suit.

If awards are not issued within 120 days, arbitrators face fee reductions.

Court finds intent to release security interest is not required under the UCC.

Superimposed text renders previously admitted photos inadmissible.

State appellate court finds law firm had possession because it directed work.

Internal distribution is insufficient to protect privilege.

District court decision follows trend allowing attorneys to advertise past results.

Standing order allows attorneys or self-represented parties to conduct voir dire.

California court finds attorney-client privilege applies to intra-firm communications.

Second Circuit dismisses foreign fraud claims under CEA; U.S. transaction is required.

In a negligence action against a health-care provider, HIPAA may provide standard of care.

Attorney fee award for frivolous legal arguments questioned.

Defendant must produce archived email even if plaintiff cannot do the same.

Insurance coverage barred despite three year delay in serving complaint on defendants.

Class members who opt out prior to class certification decision do not forfeit tolling.

Employers face uncertainty in seeking to satisfy FMLA notice provisions.

Proactive measures are essential to avoid costly expert fee disputes.

Continued at-will employment and revocable promise to arbitrate insufficient consideration.

Fifth Circuit holds that partial company disclosures can cumulatively show causation.

 


2014

Court places burden on defendant-attorneys to show uncollectibility of underlying judgment.

Costs of search and production exceed benefits, court finds.

Punitive damages cap invalidated on state constitutional grounds.

Court OKs substitute service via social media profile.

Employer retaliation—not employee resignation—triggers constructive discharge claim.

Allegations of wrongdoing abrogate attorney-client privilege and work product protection.

Third Circuit is latest to rule class arbitration is for the court to decide.

Counsel's misrepresentation to court causes case dismissal and possible attorney fees.

Ninth Circuit finds collection does not violate California consumer privacy law.

Employer retaliation—not employee resignation—triggers constructive discharge claim.

State Supreme Court adopts higher pleading standard in fiduciary duty case.

Losing parties may pay attorney fees in patent infringement cases more often.

Dismissal is proper sanction when closely fitted to objectionable conduct.

Failure-to-warn claim against drug company unsuccessful for post-label change injury.

Discipline for unethically threatening to provide and destroy evidence against firm.

Defendants may challenge market efficiency to defeat class certification.

Evidence of notice and acceptance of terms of use are crucial to enforcement.

Lack of a written agreement led to multi-million dollar fee dispute.

Decision sets high bar for operator liability.

Debate intensifies over ethics of non-lawyer professionals in law firms.

Judge Posner rebukes counsel for "selling out the class."

Eighth Circuit lacked jurisdiction to review untimely removal attempt.

Client's false testimony raises questions about appropriate remedial measures.

Court criticizes lower courts' resolving fact questions to grant summary judgment.

Disclosure of name and web history does not violate the Electronic Communications Privacy Act.

Supreme Court implies Internet provider is a cable company under the Copyright Act.

Tread carefully when agreeing to selective privilege waiver.

Rules seek to balance business and ethical concerns.

Extraordinary retrial motion granted two years after jury verdict.

Employer retaliation—not employee resignation—triggers constructive discharge claim.

Standard for recusal remains a high hurdle to overcome.

U.S. Supreme Court gives police more leeway.

Marketing falls within commercial speech exception to state anti-SLAPP law.

Ruling reflects continued federal policy favoring arbitration.

Class actions can proceed even though only the fraudster bought a "covered security."

State supreme court finds caps violate equal protection.

Firm can recover unfinished business profits from partners who left firm prior to dissolution.

Counsel's secretive actions raise ethical concerns.

Motion to dismiss denied in benchmark FTC v. Wyndham Worldwide Corp. case.

Courts reject BP's claimed interpretation of settlement agreement.

Ruling leaves door open to suits alleging negligent aid.

Courts struggle to apply Stored Communications Act to modern email systems.

Courts explore alternatives to monetary sanctions.

Recovery available despite agreeing to merger prior to issuance of misleading reports.

Even absent a formal motion, courts must address claims of vexatious conduct.

Circuits split on whether audio tapes may be replayed to jury in defendants' absence.

Employer retaliation—not employee resignation—triggers constructive discharge claim.

Corporate parent's executives may not interfere with subsidiary's contract.

In-house attorney's assurance to "protect" employee at deposition leads to malpractice claim.

Parties can contract around default rule or segregate communications to avoid waiver.

Circuit court reaffirms high standard for appealing a district court's remand decision.

Decision highlights direct and circumstantial options for email authentication.

Eighth Circuit affirms ruling taking judicial notice of GPS technology.

Abstention by federal courts appropriate only in exceptional circumstances.

Ruling protects state jurisdiction over remanded cases.

Wrongful download is enough to state claim for misappropriating trade secrets.

Absent a settlement offer within policy limits, insurers have no duty to settle.

Duty of confidentiality trumps whistleblower rights.

Employers warned of stricter enforcement of laws governing payroll cards.

Court affirms $1 million default judgment for discovery abuses in defamation case.

Complaint filed with insufficient filing fee does not toll statute of limitations.

Duty to protect clients' interests necessitates firms' review of emails.

 


2013

Case highlights the importance of preparing a clear and well-supported fee petition.

Attorneys must not assist others, including spouses, if actions are adverse to a client.

Appeals court says Pampers' class action settlement stinks.

Texter who knows recipient is driving and driver's texting habits has duty not to distract.

Flexible nature of Rule 19 analysis allows abuse of discretion or de novo review.

Ruling reflects trend in favor of allowing third-party evidence.

Court should have allowed inquiry into juror-witness Facebook contact.

Deletion of laptop files leads to monetary sanctions and inference of bad faith.

Sixth Circuit clarifies scope of recent U.S. Supreme Court ruling on class certification.

Whistleblower requirements are the same under anti-retaliation and bounty provisions.

Trial presentation technology can help make a case, but the expense is a drawback.

Payment networks may face hurdles in charging banks when merchants are hacked.

NY District Court ignores other circuits; holds unpaid interns are employees under FLSA.

Client waived advance conflicts despite never signing letter.

Are demonstrative exhibits helpful to the jury or misleading and unfair?

High court leaves negligence standard for the legislature to decide.

Court finds terms of parties' arbitration agreements and class action waivers binding.

Even after the conclusion of a proceeding, lawyers must take action.

Other states watch closely as tort reform struck on constitutional grounds.

No conflict of interest to pursue consumer protection claims for the state.

Motions for summary judgment–not motions in limine–terminate claims.

Ohio high court finds text messaging an acceptable form of attorney advertising.

State appellate court finds that messages are authentic and not hearsay.

Non-taxability of discovery expenses costs winning litigant more than $100,000.

Doctrine promotes zealous client advocacy.

Judge orders forensic expert to review Facebook posts.

Court focuses on prejudice to class members or compromising integrity of the lawsuit.

Divided Ninth Circuit limits attorney fees to a percentage of value of redeemed coupons.

In rare cases, a trial court may investigate whether racial bias affected a verdict.

Stipulation limiting damages inadequate to defeat federal class action jurisdiction.

Stipulation limiting damages inadequate to defeat federal class action jurisdiction.

Sample form satisfies the pleading standards of notice and plausibility.

Expansion of the rule beyond its products liability origins proves unworkable in practice.

District court imposes sanctions for delaying case without a finding of bad faith.

Lawyers must take steps to fully enforce protective orders after a case settles.

Lack of expert testimony prevents plaintiffs from satisfying predominance requirement.

Securities fraud plaintiffs win, but is the victory pyrrhic?

Sophisticated company gave informed consent for lawyer to represent future adverse client.

Ohio court rules municipality's home rule preempted by state regulatory scheme.

Virginia high court finds blog is not protected political speech.

Ruling fuels class actions against retailers following similar California suits.

Private parties cannot seek interlocutory appeal for issues reserved for state actors.

Potential defamatory statements may be subject only to a qualified privilege.

Plaintiff may exit trademark lawsuit by filing broadly worded covenant.

Plaintiff's choice of counsel stymied by defense counsel's casual consultation.

Insured's assertion of attorney-client privilege upheld against insurer.

Insured's assertion of attorney-client privilege upheld against insurer.

D.C. Circuit orders retrial over "golden rule" statements, furthering split among circuits.

Federal courts divided on implied right, and the Supreme Court remains silent.

Second Circuit limits district court's discretion to grant relief from untimely appeal.

Employer retaliation—not employee resignation—triggers constructive discharge claim.

Court imposes adverse inference instruction despite lack of actual malice.

District court "fully explains" spoliation sanction that rendered patents unenforceable.

Nature of claims and language in long-arm statutes may explain different outcomes.

Duty to advocate zealously is not license for uncivil conduct, says Indiana high court.

Unsettled issue of law is not a silver bullet against attorney's inaction.

Requirements of Copyright Act not satisfied by informal email agreement between attorneys.

Second Circuit deals blow to FDA attempts to restrict off-label marketing.

Ethics Commission balances protection of former client against attorney defending his reputation.

Report points to a pending Supreme Court decision and fewer available cases.

Contingency fee firm's quantum meruit claim may proceed against former cocounsel.

Attorney's failure to inform secondary court of withdrawal violates ethics requirement.

Ethical duty trumps policy that prohibits admission of liability.

The Tennessee Judicial Ethics Committee says judges must proceed with caution on social media.

Court orders disclosure of paid commentators making statements on issues in case.

 


2012

ESI of a nonparty attorney is discoverable if it does not unreasonably burden the attorney.

Establishing a right to recovery is simple, but calculating the award is more difficult.

Reporting an insured's illegal conduct, which voided coverage, negated the litigation privilege.

Conflict not imputed to firm that outsourced work to contact attorney.

Federal agencies are required to cooperate on search protocols.

Objecting party need not request remediation; courts' curative responsibility is mandatory.

Commercial coverage policy extends to cyber claim.

Timing of valuation makes a huge difference under federal act.

A district court bucks the trend of allowing broad discovery of social media.

Florida allows judge-elect to finish testimony before taking the bench.

In fee disputes, recognize, evaluate, and know the risks before gambling on litigation.

Massachusetts' high court announces rule protecting judges' deliberations in cases.

Law firms cannot assume communications with their own in-house counsel are privileged.

Rule of professional conduct is unconstitutional as applied to attorney's comments.

"Egregious" conflict of interest leads to forfeiture of attorney fees in class action.

Attorneys can be subject to sanctions even for inadvertent violation of protective orders.

Supreme Court finds salesmen are exempt under FLSA even when they don't "sell."

Witness statements afforded qualified protection; no protection for identity of witnesses.

The Ninth Circuit decision extends California law but leaves extent of duty largely undefined.

The state and federal rules are similar, but federal jurisprudence is rejected.

New Jersey court broadens pool of available qualified medical experts.

Permissible versus impermissible financial advances depends on its purpose.

Test for compulsory counterclaims opens the door to balancing of the equities.

Abusive tactics and juvenile antics get attorney and firm disqualified.

Plaintiff's lawyer disavows last-minute settlement after learning jury would have awarded $9 million.

Proposals target technology, lawyer mobility, and outsourcing.

The courts' acceptance of computer-aided search could reduce review costs.

Preservation orders differ over scope of relief granted.

Dissolved corporation has no principal place of business under diversity jurisdiction test.

Attorneys should exercise care in preparing flat-fee agreements.

Lawyers must be cautious of ethical pitfalls in question-and-answer websites.

Federal Circuit allows discovery of settlement negotiations in patent dispute.

Supreme Court finds diagnostic test an unpatentable law of nature.

Limited access to multiple computers with similar file structures is an acceptable ultimate issue opinion.

Sovereign immunity bars relief under the self-care provision.

French-blocking statute did not excuse foreign corporation from U.S. discovery obligations.

Legal advice to law firm is protected from disclosure to firm's client.

Supreme Court upholds interrogation about other crimes in "normal" prison environment.

Chancery court rules that duty owed unless modified by parties, but Supreme Court may rule otherwise.

Federal Circuit holds claims are not patent-eligible, but definition of "abstract ideas" remains murky.

Repeal contained in footnote to Omnibus Health-Care Bill.

After Citizens United, state and federal lawmakers take action.

Louisiana case against bond counsel underscores value of proper limits on scope of representation.

Failure to swear translator not necessarily a reversible error.

Court holds 2–1 that statute only protects employees of public companies over sharp dissent.

Courts consider whether intervenors must establish Article III standing under FRCP 24.

Majority view allowing all changes to depo erratas is adopted by state high court.

Employee's advance notice of potential maternity leave triggered FMLA rights.

Court adopts "learned intermediary" defense, but refuses to apply it.

Strict liability is not necessarily extended to manufacturer for incorporated component products.

The $95 million penalty is "pocket change," the judge says.

Lawyer should not commingle release of claims against firm with settlement of client's underlying lawsuit.

Courts debate proof versus plausibility at pleadings stage.

Should a court sanction an attorney for helping pro se litigants draft and file petitions for review?

Court overrides parties' agreement requiring broad retrieval of data in unallocated space.

Accountants' testimony on preparation of proofs of loss is lay opinion.

The Food and Drug Act trumps non-conforming state laws.

Court concludes discouraging witnesses from speaking with opposing counsel is improper.

Two-to-one growth rate may be due to federal reforms increasing potential liability.

 


2011

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