In today’s complex work of insurance, many insurance risks are “reinsured” by a separate insurance carrier. In those instances, it is not unusual for insurers and reinsurers to have regular communications concerning the insured, and in particular, concerning matters about which they both have an interest. Most of the time, the insurer and reinsurer consider such communications to be confidential, and not subject to discovery. However, whether seemingly confidential communications between insurers and reinsurers is discoverable in litigation involving an underlying insured is not a clear cut question. Outside of Texas, there is a split of authority regarding the issue of discoverability of reinsurance communications. A recent order issued by the Northern District of Texas demonstrates that such communication can be discoverable if an insured can persuade the court that the sought after information is relevant to his or her underlying claims.
Posts by Kristina Tsamis
Ed note: This post originally appeared on Global Regulatory Enforcement Law Blog.
Seemingly every day, new types of wearable devices are popping up on the market. Google Glass, Samsung’s Gear, Fitbit (a fitness and activity tracker), Pulse (a fitness tracker that measures heart rate and blood oxygen), and Narrative (a wearable, automatic camera) are just a few of the more popular “wearables” currently on the market, not to mention Apple’s “iWatch,” rumored to be released later this year. In addition, medical devices are becoming increasingly advanced in their ability to collect and track patient behavior.
Ed note: This post originally appeared on Peter S. Vogel’s Internet, Information Technology & e-Discovery Blog.
A Judge ruled it was unreasonable to ask Apple “to execute a search warrant” which “could pose problems, as non-government employees, untrained in the details of criminal investigation, likely lack the requisite skills and expertise to determine whether a document is relevant to the investigation” according to a report in Computerworld. On August 7, 2014 Chief Judge Richard W. Roberts (US District Court, District of Columbia) in the case of In the Matter of the Search of Information Associated with [REDACTED]@mac.com that is Stored at the Premises Controlled by Apple, Inc. reversed an earlier decision by a Magistrate Judge which “refused to allow a two-step procedure whereby law enforcement is provided all emails relating to a target account, and is then allowed to examine the emails at a separate location to identify evidence.”
Insurers and reinsurers regularly communicate regarding matters they view as confidential. These communications often relate to claims, both routine and litigated, by the underlying insureds. Insureds, in turn, seek discovery of these communications when claims become contentious and litigated. Recent federal court decisions in Minnesota and Texas demonstrate the willingness of courts to permit discovery of communications between insurance companies and their reinsurers. Conversely, a federal court in Indiana recently rejected requests for reinsurance communications. These cases illustrate the difficultly faced by insurers and reinsurers in understanding the discoverability of their communications prior to litigation. Although insurers and reinsurers may view their communications as confidential, they must be mindful of the potential discoverability of these communications, particularly when litigated claims are involved.
Text messages, once the exclusive domain of teenagers and college students, are increasingly used in business communications. These communications are, unsurprisingly, also discoverable in a wide variety of litigation contexts, from employment lawsuits to products liability actions. Most importantly, courts, such as the Eastern District of Louisiana in U.S. v. Mix (United States v. Mix, 2013 U.S. Dist. LEXIS 146848)and the District of Colorado in Christou v. Beatport, LLC (Christou v. Beatport, LLC, 2013 U.S. Dist. LEXIS 9034), have issued sanctions against litigants who have failed to preserve text messages.
Ed note: This post originally appeared on Ad Law Access.
That the FTC has announced another weight loss settlement is no news at all. The FTC averages about six new weight loss orders per year. The new settlement, nevertheless, is notable as a reminder of the following points.
The FTC has the power to impose bans. The Order against the marketers of Double Shot diet pills “permanently restrain[s] and enjoin[s]” them from advertising or selling “any weight-loss product.” The FTC does not frequently impose bans in weight loss cases, but bans have been used before in similar instances where extreme Gut Check claims (discussed below) have been made.
Ed note: This post originally appeared on InfoLawGroup.
Last week, the FTC released a study it conducted in connection with price-comparison apps, deal apps and apps that allow people to pay for purchases using their mobile device while shopping in brick-and-mortar stores. The newly released study is the latest commentary from the FTC in a long line of workshops and reports that started in 2012 on the issue of mobile apps, mobile payment mechanisms and related matters, such as mobile cramming and mobile security. Here are the key takeaways from the latest study:
The United States Supreme Court has tackled the issue of cell phone privacy and ruled that data is different from other forms of technology. In late June, the Supreme Court issued an opinion: those of David Riley, a California man whose smartphone police officers searched, and Brima Wurie, a Massachusetts man who was carrying an older “flip phone” when he was arrested.2 The Riley and Wurie cases presented a straightforward, common question: “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”3 In Riley, police stopped the defendant for driving with an expired registration and discovered that his license had been suspended.4 After arresting Riley and impounding his vehicle at the police station, loaded firearms were discovered during a routine inventory search of Riley’s car. The police used this discovery as motivation to rummage through the defendant’s cell phone data, where they found photos and videos potentially linking him to gang activity, including a shooting for which he was later charged. In Wurie, the defendant was arrested on suspicion of selling drugs. At the police station, two cell phones were seized from Wurie. One of the phones, an antiquated “flip phone,” received repeated calls from a number identified as “my house.” After accessing the call history and phone directory, the police were able to identify the caller’s phone number and address. The address did, in fact, turn out to be Wurie’s house, from which they seized illegal drugs, a firearm, and cash attributed to the defendant. In neither case did police obtain a warrant before searching the phones.
Past Disparagement Results in Present Cancellation: REDSKINS Marks Cancelled by TTAB
The Trademark Trial and Appeal Board (“TTAB”) cancelled six registrations for marks consisting in whole or in part of the term REDSKINS for use in connection with a professional football team, because the marks were found to be disparaging to Native Americans at the time they were registered (between 1967 and 1990).
The Board found that when used in connection with football services, REDSKINS retains the meaning of “Native American.” Videos of football games, newspapers, and press guides created between 1967 and 1990 established that the respondent “made continuous efforts to associate its football services with Native American imagery.”
Supreme Court Sets New Indefiniteness Standard
In Nautilus, Inc. v. Biosig Instruments, Inc., Appeal No. 13-169, the Supreme Court vacated and remanded Federal Circuit’s reversal of summary judgment because the Federal Circuit’s definiteness standard was too lenient.
Biosig filed a patent infringement suit claiming Nautilus’ exercise machines infringed its patent. Biosig’s patent claims a heart rate monitor that includes a “live” electrode and “common” electrode “mounted . . . in spaced relationship with each other.” The district court granted Nautilus’ motion for summary judgment on the basis the claim term “in spaced relationship with each other” failed the definiteness requirement of 35 U.S.C. § 112, second paragraph. The Federal Circuit reversed and remanded, finding a patent claim meets the definiteness threshold so long as the claim is “amenable to construction” and the claim is not “insolubly ambiguous.”
The Supreme Court held the Federal Circuit’s test does not satisfy the statute’s definiteness requirement and can leave courts without a reliable compass. The Court held a patent is invalid for indefiniteness if its claims, read in light of the specification and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention. The Court emphasized this standard not only takes into account the inherent limitations of language, but also requires a patent must be precise enough to afford clear notice of what is claimed. The Court vacated and remanded to the Federal Circuit for reconsideration under the proper standard.