From the category archives:

Procedure

Mister Softee Bitten By Waiver Under FRCP 50

January 18, 2010

I’ve written before about how dangerous waiver is for lawyers.  It lurks everywhere, like sharp coral just a few inches beneath the water off an inviting tropical beach. In Microsoft’s recent loss to i4i in federal court in Texas affirmed by the Federal Circuit, Mister Softee (stock trader slang for Microsoft), found itself hung up

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Hey, It's Not Like President Bush Isn't Doing Anything Important These Days! or, Fresh Evidence That the True Course of Civilization is Upward

September 24, 2008

Here is the text of new Federal Rule of Evidence 502, eliminating waiver resulting from inadvertent disclosures of attorney-client privileged or work-product materials in federal litigation: Federal Rule of Evidence 502 (signed into law September 19, 2008) The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by

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It Gets Harder (possibly much harder) to File a Lawsuit in Massachusetts

July 29, 2008

One of the things that drives people crazy is how easy it is to file a lawsuit, and conversely how difficult it is to persuade a judge to dismiss a lawsuit before the defendant incurs the costs of discovery and summary judgment. It has long been the law in Massachusetts that a complaint should not

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Traps for the Unwary – Waiver

July 23, 2008

What do lawyers fear the most? Spiders, snakes, public speaking, death by auto de fe? Well, I’ll be darned if I know, but one thing that scares the bejesus out of all thinking lawyers is waiver. Lawyers start to become vaguely aware of this horror in law school. Once they go out into practice it

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ESI and Admissibility

July 22, 2008

After writing the post immediately below it occurred to me that although there is much talk about the discovery of electronically stored evidence (ESI), the admissibility of ESI is addressed far less often. In fact, in the two day conference I linked to in that post, the topic is not even mentioned. For the interested,

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Quick Hits – Antitrust

July 14, 2008

The Federal Trade Commission has asked for en banc review of the D. C. Circuit’s decision in the FTC’s Rambus proceeding. I expect this case to be appealed to the Supreme Court, and given the Court’s propensity to accept antitrust cases over the last several years and the importance of this case, the case stands

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The Agony of Inadvertant Disclosure

June 8, 2008

Sometimes being a lawyer is like being an airline pilot – hundreds of hours of tedium, interrupted by moments of sheer panic. In the case of lawyers, the panic can hit from a number of sources: a missed court filing date or statute of limitations, the discovery during trial that your client has failed to

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Amazon Caught in Common Settlement Trap

January 16, 2008

If you’re in the middle of a trial, don’t tell the judge that you’ve settled the case unless you absolutely, positively mean it. Amazon fell into this trap in its recent litigation with Basis Technology, a Massachusetts linguistics software company. On the third day of trial over a dispute arising out of a contractual relationship

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What Did You Say Your Trade Secrets Were?

March 27, 2006

Trade Secrets, Procedure. Warning: if you’re seeking discovery in a trade secret case in the Suffolk Business Litigation Session make sure that you have (a) provided the court with a detailed description of your trade secrets, and (b) filed a protective order that strictly complies with the Uniform Rules of of Impoundment. For a recent

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