http://www.elinfonet.com/fedindex/14 Articles discussing issues involving the practice of employment law, labor law, immigration law and employee benefits. Sat, 21 Nov 2009 22:11:09 EST en-us http://www.elinfonet.com/newscount.php?popID=8663 Article: 8663 Wed, 11 Nov 2009 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) As employers transition daily business and human relations practices into the digital world, their electronically stored information increasingly is playing a critical role in the litigation process. In many jurisdictions, however, the rules of discovery (the compulsory disclosure of pertinent facts or documents before trial) have not kept pace. Few, if any, state discovery rules account for information technology systems, computer networks, and personal digital assistants (PDAs). While litigants in the federal court system are guided by specific rules addressing electronic discovery, or “e-discovery,” litigants and judges in state courts often are forced to rely upon rules and principles that pre-date recent technological advancements. In many state courts, a litigant’s e-discovery obligations are guided, on a practical level, by recent judicial decisions. http://www.elinfonet.com/newscount.php?popID=8390 Article: 8390 Tue, 18 Aug 2009 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), a case that initially garnered little attention when it was decided, the United States Supreme Court, emphasized and elaborated on the "plausibility" standard first injected into Rule 8 of the Federal Rules of Civil Procedure two years earlier in Bell Atlantic Corp. v. Twombly1 an antitrust case. The importance of understanding the resulting enhanced requirements for pleading a claim under Rule 8 cannot be overstated. Together, the Twombly and Iqbal decisions radically change the rules of pleading in all civil cases and make it much easier for a federal judge to dismiss a complaint in the initial stage of the lawsuit. The preparation of an adequate complaint for relief in a federal court - one that will withstand a Rule 12(b)(6) motion to dismiss - is now a far more demanding task than has previously been the case. http://www.elinfonet.com/newscount.php?popID=8195 Article: 8195 Thu, 11 Jun 2009 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court “failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.” http://www.elinfonet.com/newscount.php?popID=7844 Article: 7844 Tue, 03 Mar 2009 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) Hopefully, nothing in this article about the dangers of e-mails, memorandums, etc. will be news to you. You may even say to yourself "Who didn't know that?" Well, apparently some folks "forget" from time to time that information in e-mails, memorandums, and other documents is discoverable in litigation and may be the basis for large amounts of money changing hands. The information in them may or may not convey the author's actual beliefs or motivations – but it may be a jury who decides. http://www.elinfonet.com/newscount.php?popID=7223 Article: 7223 Wed, 27 Aug 2008 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) As companies increasingly, and sometimes needlessly, store excessive volumes of electronically stored information (ESI), preparing for litigation has become more complex and particularly diffi cult for the IT personnel charged with executing legal hold directives. The 2006 amendments to the Federal Rules of Civil Procedure (the “Amended Federal Rules”) codifi ed the view that ESI is discoverable and subject to various retention requirements. The Amended Federal Rules require that, early in the litigation, litigants assess their data and confer about issues relating to the discovery of ESI.1 Because of the breadth of information stored in corporate technology environments and because of potential pitfalls involved in preserving ESI, in-house legal and technology departments must work together and communicate well in order to develop policies that will help them prepare for a Rule 16 “econference,” as well as admissibility issues that may arise during the litigation. http://www.elinfonet.com/newscount.php?popID=7003 Article: 7003 Wed, 11 Jun 2008 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) In this attorney authored article, A. Michael Weber of Littler's New York office explains the intricacies of electronic discovery in employment-related litigation and how this type of litigation is the primary vehicle for the development of E-discovery laws. "There are sui generis aspects to employment disputes that tend to incubate the growth of e-discovery problems," says Weber. Although e-discovery has proven to be detrimental to employers, Weber also explains how the preservation of electronic records may benefit the employer. http://www.elinfonet.com/newscount.php?popID=6922 Article: 6922 Thu, 15 May 2008 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) Last year, the Supreme Court affirmed the grant of a motion to dismiss in a putative antitrust class action, holding that the complaint failed to allege sufficient facts to show that the plaintiffs could plausibly win at trial. In Bell Atlantic v. Twombly, the Court expressly rejected the standard long used by the lower federal courts that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Instead, the Court held that, while the factual allegations of a complaint need not be "detailed," they must "possess enough heft" so as to "plausibly" suggest that the plaintiff can prevail. http://www.elinfonet.com/newscount.php?popID=6470 Article: 6470 Thu, 25 Oct 2007 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) On December 1, 2006, Congress amended the Federal Rules of Civil Procedure to address the developing area of electronic discovery ("e-discovery"). The amendments were designed to modernize the Rules and provide guidance to litigants and attorneys on their obligations to preserve and produce electronic documents. http://www.elinfonet.com/newscount.php?popID=6354 Article: 6354 Tue, 21 Aug 2007 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) In this Littler attorney-authored article, Michael Brewer discusses five effective motions in limine specific to employment trials. Brewer says that these "are favorites among defense attorneys and offer significant strategic benefits both at trial and on appeal." Some of the motions Brewer discusses include "Evidence of Misconduct Against Plaintiff's Co-Workers," and "Testimony of Employee's Own Opinion of His or Her Job or Job Performance." http://www.elinfonet.com/newscount.php?popID=6309 Article: 6309 Thu, 02 Aug 2007 00:00:00 EST elin@elinfonet.com (Employment Law Information Network) Reading through the many eDiscovery vendor whitepapers on the topic, one would think that instant message (“IM”) retention and archiving should be the focus of every good eDiscovery preparedness initiative. In a thinly veiled effort to boost demand for their products, these vendors have made the blanket assertion that all companies must retain IM for discovery purposes as a result of the amendments to the Federal Rules of Civil Procedure (the “Amended Federal Rules”), which went into effect on December 1, 2006. According to these vendors, this is so because IM falls within the definition of electronically stored information (“ESI”) as set forth in the Amended Federal Rules. While organizations must account for the Amended Federal Rules in their eDiscovery undertakings, the impact of IM on information management policies is debatable.