Counsel taking a pre-certification dismissal of a class action must file a statement which includes:
(1) the reason for dismissal, (2) the personal gain received by the plaintiffs in any settlement, (3) a statement of any other material terms of the settlement, specifically including any terms which have the potential to impact class members, (4) a statement
Defendants’ contention was that they were entitled to reformation of a contract because a page was inadvertently left out of the asset purchase agreement. The missing page detailed long term liabilities which Defendants claimed the Plaintiff was obligated to pay. Defendants argued that the failure to pay constituted a violation of the accompanying Promissory Note and
Business Court Rule 9.2 says that "the movant shall have a good faith basis for requesting any . . . extension of time and, except in extraordinary cases, the movant shall first consult with any opposing party and reflect that party’s position in the motion and indicate whether the opposing party wishes to be heard
The Business Court dismissed on a Motion for Judgment on the Pleadings an unfair and deceptive practices claim stemming from a dispute between members of a limited liability company.
CDC, a minority member of the LLCs, argued that the member owning a 70% interest, Grimmer, had removed CDC as a manager and had made unnecessary
In cases in the Business Court, the lawyers are often assisted by computer forensics experts in dealing with electronic discovery issues. That’s becoming almost essential in complicated business cases.
Anyone can do this type of work right now. I get regular phone calls and emails from people pitching this type of work. But there is regulation in the
Novo Nordisk Pharmaceutical Industries, Inc. v. Carolina Power & Light Co., 2008 NCBC 16 (N.C. Super. Ct. Sept. 15, 2008)(Jolly)
As the North Carolina Business Court framed the issue in its opinion yesterday in Novo Nordisk Pharmaceutical Industries, Inc. v. Carolina Power & Light Co., it was "whether and to what extent a public utility contractually
There’s going to be a new Federal Rule of Evidence, approved by voice vote in the House this week and unanimously by the Senate earlier this year. It’s on President Bush’s desk for signature (that’s him signing the baseball in the picture at the left), and should be on the books in the next few weeks.
The new addition to the Rules is Rule 502, titled "Attorney-Client Privilege and Work Product: Limitations on Waiver." New Rule 502 covers the scope of a waiver of privilege and the issue of inadvertent production of privileged documents, among other waiver related issues.
The full text of the Rule is at the bottom, but here’s a synopsis:
The new Rule resolves conflict between courts throughout the country on whether an inadvertent production results in waiver. North Carolina’s District Courts had reached different conclusions on that issue. Scott v. Glickman, 199 F.R.D. 174 (E.D.N.C. 2001) and Parkway Gallery v. Kittinger/Pennsylvania H. Group, 116 F.R.D. 46 (M.D.N.C.1987) followed the flexible approach espoused by the new Rule, but the Western District had held that even an inadvertent production waived privilege, in Thomas v. Pansy Ellen Products, Inc., 672 F. Supp. 237 (W.D.N.C. 1987).
The Rule takes effect immediately upon the President’s signature. It applies to all cases filed after its enactment, and applies to pending cases "insofar as is just and practicable."
I read about Congress’ passage of the Rule on the Electronic Discovery Law blog. The full text of the Rule is below, the explanatory note is here.Continue Reading New Federal Rule of Evidence 502 Deals With Attorney-Client Privilege, Waiver, And Inadvertent Production
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In North Carolina Superior Court, there is no civil procedure tradition more respected than the courtesy of a thirty day extension of time to answer a Complaint or to respond to discovery. Like it or not, motions seeking the extra month are granted almost without exception, and are so routine that the requesting party usually doesn’t even bother
https://youtube.com/watch?v=ujVCpOv9IZQ%26hl%3Den%26fs%3D1
This is a follow-up to the most read post on this blog. That’s the one about the lawsuit brought by the University of Louisville against Duke University when Duke backed out of its contract to play four football games against the Cardinals. Louisville sought a contractual cancellation fee of $150,000 per cancelled game, but Duke won the case on a Motion for Judgment on the Pleadings.
You can read the earier post here, but a quick synopsis of Kentucky Judge Phillip Shepherd’s decision is that Louisville was not entitled to damages because the contract said that Louisville could not get damages if it was able to replace Duke with teams of "similar stature." The Court observed that at oral argument, Duke . . . persuasively asserted that this is a threshold that could not be any lower." The Court adopted Duke’s argument that any football team playing in former Division 1-A and many in former Division 1-AA were of "similar statute" to Duke, and dismissed the case.
Since then, I’ve been wondering: what exactly did Duke’s lawyers say to Judge Shepherd to so "persuasively assert" that Duke football is so bad?
Well, not only can I fill you in on that, you can watch and see for yourselves. The Court in Franklin County, Kentucky, videotapes some of their hearings, and a video excerpting the highlights of the Louisville v. Duke hearing is at the top of this post. (There’s no criticism of the lawyering here, Duke’s lawyer did a great job, and after all, she won the case for her client.). The video takes a few seconds to get going.
If you don’t want to take the time to watch the video, you can keep reading to see exactly what was said.Continue Reading The Law And Duke Football: The Video
The small Arizona town of Sedona is one of the centers of the e-discovery universe, and the Sedona Conference’s Best Practices for dealing with electronic discovery issues have been favorably referenced by many Courts, including the North Carolina Business Court (see here and here).
Now, the Conference has put out a Commentary on Preservation, Management and Identification of Sources of Information that are not Reasonably Accessible. Why should you care about that?
The answer is that the term "reasonably accessible" is contained in Rule 34 of the Federal Rules of Civil Procedure, governing document production, which says that "a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost." (North Carolina Rule 34, last amended twenty-one years ago with a quill pen, contains no such language).
The new Commentary contains detailed guidelines for determining how to make the determination of accessibility, and when electronic information should be preserved. The Guidelines themselves are below, from the Electronic Discovery Law blog (which is a great resource for court decisions on e-discovery matters) but the Commentary itself contains many useful examples and case citations and is worth reading. Continue Reading Electronically Stored Information: New Sedona Principles On Preservation Of ESI