Civil Procedure

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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.

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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.

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Cherished lunch box of Justice Holmes.

* Harvard Law’s Langdell Library hosts a bevy of legal treasures. Including the personal lunchbox of Justice Oliver Wendell Holmes Jr. [The Harvard Crimson]

* Per a new survey, watching the Kardashians makes one twice as likely to want an aggressive lawyer. When I have to watch the Kardashians I become an aggressive lawyer. [Avvo]

* The Supreme Court spent Cyber Monday denying review to two cases challenging the imposition of sales taxes on Internet purchases. [The Blog of the Legal Times]

* New York State Attorney General Eric Schneiderman cracked down on fake Yelp reviewers. Apparently, reviewers who gave a pet groomer 4 stars are a bigger priority than the reviewers who gave subprime-backed securities AAA ratings. [Corporate Counsel]

* Not exactly breaking news, but Philly has caught on that law firms are merging because the market is so terrible with a new piece on the merger craze. Specifically, they’re looking at the planned merger of BakerHostetler and Philly’s own Woodcock Washburn L.L.P. we mentioned last week. [Philadelphia Inquirer]

* Lakers guard Steve Nash’s ex-wife is battling him for child custody. She’s hired a Phoenix law firm whose most famous attorney is jacked up NFL ref Ed Hochuli. For now Hochuli isn’t working on the case directly. For now. [TMZ Sports]

* Congratulations to Kobre & Kim on being named Law Firm of the Year by the National Asian Pacific American Bar Association. [Newsday]

* Who says Civil Procedure isn’t sexy? Some UNLV Law students take to YouTube to bring (Civ Pro) SexyBack. [You Tube]

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This grading system is a total train wreck.

If law students want one thing in their grading system, it’s clarity. This is especially true for first-year law students; 1L grades are too important for future job prospects to have a confusing and muddled set of rules.

Well, maybe not Yale law students. Famously, Yale doesn’t have traditional letter grading. A few top schools have followed Yale’s lead in recent years, but Yale is the OG of meaningless grading systems. (Berkeley students to start bitching in 3, 2, 1….) The meaningless of Yale’s Honors/Pass grading system doesn’t matter because all Yale students get jobs. No grades + Good jobs = “I don’t understand why humans cry.”

Yale students have such good job prospects that they can get jobs as law professors at other Ivy League law schools right after they graduate from Yale. But bringing happy-clappy Yale concepts of grading to “normal” law schools is not without its problems….

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Suing a school for giving you bad grades seems ludicrous. On the other hand, there’s something respectable about filing a 60-paragraph complaint in response to a law school telling you that you’ve failed Legal Writing and Civil Procedure. It’s kind of meta when you think about it.

The crux of the story is that a the law school demanded that a 3L retake CivPro II: Electric Boogaloo because he got a D the first time around. This interfered with his plans for his 3L year, so he decided to take them to court. In the process, every complaint he has about the school worked its way into the filing.

Which law school is getting sued?

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Martin Lipton?

* Former SCOTUS clerks earn more money for having clerked at the high court than SCOTUS justices earn for their yearly salaries. Consider how ridiculous that is. [The Economist]

* As it turns out, the National Security Agency oversteps its legal authority thousands of times each year, but that’s only because it’s a “human-run agency.” [Washington Post]

* Federal judges have come together to bemoan sequestration. “We do not have projects or programs to cut; we only have people.” Eep! Don’t give them any ideas. [National Law Journal]

* Ready, set, lawgasm! The comment period for proposed amendments to the Federal Rules of Civil Procedure opened up yesterday, and yet again, e-discovery rules are on the table for debate. [Forbes]

* NYU professors want Martin Lipton to step down from the school’s board of trustees, but the Wachtell Lipton founding partner has had a honey badger-esque response — he don’t give a s**t. [Am Law Daily]

* As was widely expected, Mayor Michael Bloomberg’s army of New York City lawyers will soon take the first step to appeal Judge Shira Scheindlin’s stop-and-frisk ruling. [New York Law Journal (sub. req.)]

* A West Virginia judge was federally indicted for attempting to frame his secretary’s husband with drug charges. Did we mention that the secretary is the judge’s ex-lover? Quite dramatic. [Charleston Gazette]

* Consortium: Not just for straight couples. A same-sex couple in Pennsylvania is trying to appeal the dismissal of a loss of consortium claim in light of the Supreme Court’s Windsor ruling. [Legal Intelligencer]

* Christian Gerhartsreiter, aka poseur heir Clark Rockefeller, was just sentenced to 27 years to life in prison in a California cold-case murder. Maybe Lifetime will make a sequel to that god-awful movie. [Toronto Star]

* Jacques Vergès, defender of notorious villains and perpetual devil’s advocate, RIP. [New York Times]

Hey 2Ls, you might want to pay attention to this one. You’re really going to want to pass the July 2014 Bar Exam, because by February 2015 the exam is going to be new.

Really new. In the biggest change to the bar exam in decades, the February 2015 exam will have a new section: Civil Procedure.

I’ll pause now until the groaning subsides….

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So I went to the annual conference of the Association of American Law Schools in New Orleans this past weekend. The place was lousy with law school deans and I had a ton of interesting, off-the-record conversations that I can’t report on. I also spent a weekend in New Orleans that involved all sorts of other things I can’t report on. It was fun and informative, you just have to trust me.

One thing I can report on was an AALS panel I attended, “The 75th Anniversary of the Federal Rules of Civil Procedure: Looking Back, Looking Ahead.” Now… I know that doesn’t scream “drop your panties,” but the panel was moderated by Arthur Miller. Yeah, that Arthur Miller, the famous law professor who wrote Death of A Civil Procedure Rules Salesman or something. And the all-star panel he was moderating included Justice Antonin Scalia… a person Miller doesn’t really agree with when it comes to rules. I had to go. Literally, I had to.

Unfortunately, the conversation was completely over my head. I’m not embarrassed to say that. Other people in my position may pretend that they got the most out of this discussion between Miller, Scalia, Biglaw partners, district judges, and others who have advised the Rules Committee. To me it sounded like, “TWOMBLY wha wha whaa, but in IQBAL wha wha wha wha! Wha? Given TWOMBLY’s wha and IQBAL’s wha, how could you wha wha whaaa?? [Laughter]”

That doesn’t mean I didn’t learn anything….

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The only people who hate final exams as much as students are the professors who must eventually grade them. Some professors look at finals with open disdain. It takes them away from scholarship and they don’t even get the thrill of hearing themselves talk in a packed lecture hall.

Maybe it’s because so many professors hate giving exams that there seem to be so many screw-ups. Mistakes will happen, but often it doesn’t seem like schools have a clear plan of fixing mistakes in a way that is fair to all students.

NYU Law School has had its fair share of exam mishaps. It’s a long and embarrassing list.

But maybe NYU Law is finally starting to learn from past mishaps. Oh, the faculty still make mistakes when it comes time to administer exams, but this time the solution is that the professor is going to do extra work.

Then again, maybe it’s working extra hard after you’ve made an error that separates this famous NYU professor from the rabble….

double red triangle arrows Continue reading “NYU Law Comes to Reasonable Resolution After Latest Exam Screw-Up”

Of course not! But the headline got your attention, didn’t it? The notion of Judge Richard Posner as being anything other than a genius will certainly make people sit up and take notice. There’s a reason why there’s a Facebook group called Richard Posner for Philosopher King (of which I am a proud member).

It should be noted, however, that Judge Posner’s opinion in Gonzalez-Servin v. Ford Motor Co. was not 100 percent perfect. It initially contained some infelicitous wording — which has since been fixed.

Let’s look at the language that was perhaps imprecise….

UPDATE (4 PM): Additional comment from Judge Posner, added after the jump.

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