What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.
Articles Discussing The Work Of Practicing Labor And Employment Law.
The Top Five Mistakes in Complex Litigation Work Flow
A Primer (Reminder) for Lead (and other) Paralegals
To Retain or Refrain? Legal Record Retention Requirements
Litigation generates a ton of paper – pleadings, motions, drafts, correspondence, legal research – and these materials do not simply vanish once your involvement with a case has ended.
Court Extends Proportionality Principle to Duty to Preserve
In Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR (N.D. Cal. Oct. 29, 2014), United State Magistrate Judge Donna M. Ryu granted the plaintiff’s motion for permission to no longer preserve computer workstations that were peripheral to discovery. The court extended and applied Rule 26(b) proportionality to the issue of ESI preservation, and gave dispositive weight to the plaintiff’s sample-based review of the contents of the devices.
Moonlighting: Perils of Working on the Side
Moonlighting is the practice of working for more than one employer or working for yourself while working for an employer. Professionals who moonlight may be asking for trouble. Many employers have policies forbidding the practice, some going so far as to deem it grounds for immediate termination. A recent case provides an extreme example of moonlighting at its worst.
Federal Court Limits Employer’s Right to Discover Information About the EEOC’s Own Hiring Policies and Expands the EEOC’s Rights on Discoverability
In recent years, the Equal Employment Opportunity Commission has aggressively sought to enforce its April 2012 enforcement guidance concerning how, in the EEOC’s view, Title VII of the Civil Rights Act of 1964 restricts an employer’s discretion to consider criminal records for hiring decisions.1 Despite court rulings favorable to employers in three high-profile EEOC lawsuits against Kaplan Higher Education Corporation, Freeman and BMW,2 a recent decision in Illinois in the EEOC’s suit against Dollar General highlights disagreement among some courts regarding whether an employer can force the EEOC to explain how the EEOC uses criminal records for its own hiring decisions. That same court is also allowing the EEOC access to personal information for the aggrieved employees and unredacted background check program documents. It thus appears that despite three consecutive setbacks, the EEOC is refusing to let criminal record check claims fade into the background.
Who is Really Writing the Expert Report?
Expert reports are a staple in many litigated matters. A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion.
Are Communications with Experts Privileged? Maybe
In general, the attorney-client privilege protects confidential communications between an attorney and her client when made for the purpose of obtaining or providing legal advice.
Read It & Weep: Missed Deadline Leads to Significant Consequences
Your friends at PL Matters aim to keep you updated regarding best practices, especially when it comes to professional obligations. However, sometimes best practices just boil down to the basics, including careful reading of court directives. AT&T recently learned this lesson the hard way. Last week, an appeals court ruled that the telecom giant will have to pay $40 million in connection with a case because its attorneys failed to read a court document.
Unintended Waiver: the “At-Issue” Exception to the AC Privilege
The attorney-client privilege, the oldest of the common law evidentiary privileges, seeks to encourage thorough and truthful communication between attorney and client. Attorneys know, however, that the privilege is not absolute. One such exception is known as the “at issue” exception, a form of implied waiver of the attorney-client and work product privileges. This form of waiver is unique because it is one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. Let’s take a closer look at this often misunderstood exception to the rule.
Second, Third Circuits Tighten FLSA Pleading Standards, Challenge “Barebones” Complaints
Apologies to John Steinbeck, but in some ways, both 2013 and 2014 have been the winters of FLSA plaintiffs’ discontent on the East Coast. Last summer, the Second Circuit (which covers New York, Connecticut, and Vermont) issued a number of decisions tightening pleading standards under the Supreme Court’s decisions in Iqbal and Twombly. In one of those cases, Lundy v. Catholic Health System of Long Island, the court held that “in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek as well as some uncompensated time in excess of the [forty] hours.” In Lundy and other cases, the Second Circuit affirmed dismissals because the plaintiffs had failed to provide any facts or estimates to support the number of hours they worked and had simply “rephrased” the FLSA’s requirements as factual contentions.
Federal Judge Dismisses Claim against University; Failure to Appropriately Monitor Docket Not Excusable Neglect
Executive Summary: A federal trial court in D.C. recently dismissed the Amended Complaint of a former professor at the University of the District of Columbia (“UDC” or “University”) due to his failure to timely oppose a Motion to Dismiss, finding that the plaintiff’s counsel’s reasons for the failure to timely respond to the motion did not rise to the level of “excusable neglect” under Federal Rule of Civil Procedure 6(b)(1).
Five Lessons for Employers from California v. Riley
In the waning days of its current term, the U.S. Supreme Court ruled unanimously in California v. Riley that police officers generally violate the Fourth Amendment’s prohibition against unreasonable searches by conducting a warrantless search of a smartphone seized incident to an arrest. The ruling turned largely on the Supreme Court’s interpretation of a long-established exception to the Fourth Amendment’s warrant requirement. Although the Fourth Amendment and the relevant exception will rarely apply to private employers, the high court’s decision remains highly relevant for private employers whose workplace searches, like police searches, increasingly encounter personal smartphones, whether as part of a bring your own device program or not, and other mobile devices.
D.C. Circuit Court Upholds Attorney-Client Privilege in Internal Investigations
Internal investigations play a lead role in a company’s effective ethics and compliance program. They are one of the best ways for a company to detect, thoroughly understand, and remedy situations that may violate its code of conduct, and they provide a business-friendly solution before misconduct or non-compliance grows deeper or wider.
Court Denies Sanctions, ‘Discovery on Discovery’ Once Defendant Provides Basic Litigation Hold Details
As he promised to do in his State of the Union address, President Obama today signed an Executive Order establishing a minimum wage for federal contractors.