Sanctions Motions

Many sanctions motions arise in the context of discovery. This is because the court system generally relies on the parties to trust each other in the conduct of discovery. There is no judge present for depositions and the parties usually supervise their own document gathering and production. Because of this freedom from direct oversight, there is a lot of opportunity for abuse. Accordingly, parties frequently allege other people violate the rules.

Litigation Software Update

Beyond collaborating on documents, online storage is important to make sure important documents can be easily found in one place and are not vulnerable to destruction if a computer or disk is lost or destroyed. And I understand that online storage is very inexpensive right now.

Employment Separation Agreements

Every negotiation is different and some employers may offer very different terms than others. Some big companies have a lot of money and are generous to outgoing employees. Some employers are less generous and offer very little. There are usually no requirements for the amount of a severance.

Non-Competition Agreements

Courts are often reluctant to enforce non-competition agreements. They recognize that workers need to be allowed to make a living and often do not have the same bargaining power as employers when entering into employment agreements. And so they will not just enforce any non-competition agreement they see. Instead, they only enforce ones with reasonable limits.

The Implied Covenant of Good Faith and Fair Dealing

The implied covenant of good faith and fair dealing is a promise that state law declares is inherent in every contract unless the contract expressly disclaims it. The Uniform Commercial Code, for example, codifies it at UCC 1-304. It basically requires people who enter into contracts to act consistently with the object of the agreement. So, for example, if a sponsor of an apartment building agrees to sell apartments, that agreement contains an implied promise that the sponsor will not wait ten years to do so, making the finances of the building unsustainable.

The Attorney-Client Privilege

Some documents contain both privileged and non-privileged information. For those documents, an attorney redacts out the privileged portion, and produces a redacted version of the document that reveals the non-privileged portion. The attorney discloses details about the privileged portion on the privilege log. Redactions are a big task in document review and document production.

Selecting a Court

A major reason why litigants select one court instead of another is that the court they select is more conveniently located. The court may be near where the plaintiff or other key witnesses live, so they can more easily testify there. Or it may be near where the plaintiff’s attorney works, so she can more easily represent the client and appear for hearings.

Am I Going to Get Sued?

There are numerous examples of completely nonsensical claims that plaintiffs have submitted to court, and each of them technically started a lawsuit. A mentally ill person sued numerous defendants, alleging she was a cyborg with information about a slavery conspiracy. A former president sued a laundry list of people, alleging a conspiracy to make up connections with Russia. A beer drinker sued a brewer, alleging its beer did not help him attract women.

Third Party Subpoenas

After preparing the subpoena, a party needs to serve the subpoena in the same manner that it serves a summons. Often lawyers reach out to the lawyer for the subpoena recipient, who agrees to accept service without the need for the technical service procedure. The serving party usually also needs to serve a copy of the subpoena on each of the other parties to the litigation, which may also give them the opportunity to fight it in court.

Non-Disclosure Agreements

Non-Disclosure Agreements often begin with a definition of what information exactly is “confidential” and therefore should not be disclosed. Usually this is information that one party gives to the other that isn’t already public. Such a broad definition allows a company to re-use the same NDA for multiple situations and permits it to file the NDA in court without fear that the NDA itself will reveal any secrets. But sometimes an agreement may be more specific to avoid any doubt about what the subject matter is.

Strike 3 Lawsuits

In my review of Strike 3 lawsuits, I have seen none proceed to trial. The vast majority that I see settle, which means that Strike 3’s business appears to me to be twofold: First, getting random people to send it money to settle its lawsuits. And second, generally discouraging people from illegally downloading its films.

Choice of Law

Sometimes there are no statutes or precedents from another jurisdiction that directly answer the question that a court needs to consider. In those situations, courts often will apply the law in the way they believe the other state would have applied the law. And, in some situations, courts in one jurisdiction can “certify a question” to the highest court of another state for it to answer so that the local court can apply the law correctly.