No good deed goes unpunished. A State Farm policyholder had a serious home fire caused by a defective kitchen appliance. State Farm responded within a day and sent in a fire investigator who determined that a toaster oven instigated the fire. State Farm preserved the toaster oven and other potential igniters and authorized a demolition repair company to come i ...

Last week, Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York filed in the Second Circuit a response to the mandamus petition of KPMG challenging the District Court’s order refusing to dismiss the complaint filed by former KPMG partners seeking advancement of costs to defend a highly publicized criminal prosecution. Un ...

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 expe ...

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 responde ...

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 effec ...

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 ca ...

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 malplpr ...

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 judgme ...

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“ doct ...

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 ex ...