The following are observations of Professor Daniel J. Capra, the Reporter to the Advisory Committee on the Federal Rules of Evidence and the Reed Professor of Law at Fordham Law School, concerning the meeting of the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure in Arizona last Saturday, January 13, 2007 dealing with expert reports (see the post, below, dated January 2, 2007): 1. Consideration was g ...
The December 2006 electronic discovery amendments send mixed messages to recipients of document requests and subpoenas. Rule 34(b) permits, but does not require, the requesting party to specify the format in which it wishes to receive electronically stored information ("ESI"). The responding party may object to the requested format. If it does so, the responder is required by the Rule to identify the format in which it intends to produce the ESI. Rule 34(b) ...
The E Government Act of 2002 requires that personal identifiers, such as Social Security numbers, financial accounts to the last four digits, and names of minor children be redacted from federal court filings. The Judicial Conference of the United States has a Privacy Policy in place, the Standing Committee is finalizing rules on the subject that will go into effect on December 1, 2007, and many districts have local rules requiring such redaction. It is critical ...
As discussed in an article on the Recent Articles page ("Internet and Email Evidence"), there is an accepted protocol for authenticating web pages, including archived web pages. A recent decision in the Northern District of Iowa extends this approach to authentication of Temporary Internet Files, which automatically store all accessed images so that the computer can retrieve them more quickly if the user returns to them. United States v. Johnson, 2006 U.S. Dist. ...
In Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 334-36 (2d Cir. 2006), the Second Circuit held that the District Court could exercise supplemental jurisdiction (28 U.S.C. § 1367) over a subsequent legal malpractice claim asserted against plaintiffs' counsel concerning their representation in a federal securities class action because "the present malplpractice claims and the underlying securities claims 'substantially overlap,' creating a common nucleu ...
The Supreme Court's decision yesterday in Medimmune, Inc. v. Genentech, Inc., No. 05-608 (U.S. Jan. 9, 2007), took a surprisingly liberal view of the ripeness of a dispute for case and controversy purposes. The case might be read as standing for the proposition that a party to a contract who is fully performing, but doesn't want to, can sue for a declaratory judgment that it need not perform further simply because, if it did stop performing, it could be sued by t ...
An article entitled ‛The 2000 Amendments to the Federal Rules of Civil Procedure & Evidence: A Preliminary Analysis“ (available on the Recent Articles page) observes that the 2000 amendment to Federal Rule of Civil Procedure 5(d) undercut a prior rationale for public access to discovery materials because it precluded application of the ‛judicial record“ doctrine in most circumstances. In an interesting decision entered on November 14, 2006, Judge Gerard L ...
The Sixth Circuit has largely ended the debate as to whether any communications between counsel and expert are protected from discovery. In Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 717 (6th Cir. 2006), it ruled that: ‛Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.“ Since the line of authority holding to the contrary traces back to the decision of a Dist ...
On January 29, 2007, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York to address possible amendments to Rule 56. The concern is the perceived disparity between practice and the text of the rule. The most significant revision would require: (i) the moving party to file a statement of undisputed facts on which it is relying, (ii) the adversary to file a paragraph-by-paragraph response to each fact asserted ...
The comment period for Proposed Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Waiver By Disclosure) ends on February 15, 2007. It is a very important rule that has four major components: (1) It articulates a test for determining the extent of subject matter waiver of privileged or work product material that is voluntarily disclosed. (2) It resolves a split in the Circuits as to whether ina ...
Yesterday, the Federal Circuit upheld a denial of sanctions by the Central District of California, reasoning that the District Court properly took into account the behavior of defense counsel in exercising its discretion not to sanction plaintiff's counsel: "[W]ith respect to the conduct of [plaintiff's] counsel in the litigation, the court observed that the conduct of both parties' counsel 'fell far short of a model prosecution and defense of a patent action, an ...
New York will have new ethics rules governing the contents of websites and advertisements effective February 1, 2007. They may be found at http://www.courts.state.ny.us/rules/attorney_ads_amendments.shtml. (GPJ) ...
The ABA Standing Committee on Ethics and Professional Responsibility has opined that it is generally permissible under the Model Rules to peel metadata out of documents received electronically. (Formal Opinion 06-442: Review and Use of Metadata (August 5, 2006).) Note that state ethics rules, which often vary from the Model Rules, may impose other obligations. For example, the New York State Bar Association Committee on Professional Ethics has opined that N.Y. ...
On December 26, 2006, the Second Circuit joined the Seventh, Ninth and Eleventh in concluding that the defendant bears the burden of establishing federal subject matter jurisdiction under CAFA. It also remanded to the District Court for explicit findings as to how it calculated reasonably probable damages, given that the $5 million aggregated amount in controversy is jurisdictional. See Blockbuster, Inc. v. Galeno, 2006 U.S. App. LEXIS 31757 (2d Cir. Dec. 26, 20 ...
On January 13, 2007, the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure will be meeting in Arizona to consider whether the expert witness rule -- specifically, Rule 26(a)(2)(B) -- should be amended (1) to protect drafts of expert reports from discovery, (2) to protect some or all communications between counsel and expert form discovery, (3) to require reports from treating physicians, and (4) to require reports from employ ...
(1) The December 1, 2006 Electronic Discovery amendments to the Federal Rules of Civil Procedure and the increasing burden on outside counsel to monitor preservation and compliance. (2) Increasingly stringent class certification requirements culminating in the Second Circuit's decision in the IPO Securities Litigation on December 5, 2006 (In re Initial Public Offering Sec. Litig., 2006 U.S. App. LEXIS 29859 (2d Cir. Dec. 5, 2006)). (3) Increasing imp ...

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