Category: Civil Procedure

Witness Coaching by Whisper Leads to Sanctions for Defense Witness and Attorney

Share

As noted in two prior posts, one on May 15, 2020, and the other on May 29, 2020, the COVID-19 pandemic and the resulting explosion in the use of remote depositions present a number of novel issues for lawyers to consider, whether taking or defending depositions. Regardless of these “unprecedented times,” some things remain the same, including that it is improper for a witness to be coached about answers while the deposition is occurring.

Continue reading “Witness Coaching by Whisper Leads to Sanctions for Defense Witness and Attorney”

Northern District of California Sours Plaintiff’s Claims against “Vanilla” Soymilk Maker

Share

The Northern District of California recently dismissed a Plaintiff’s claim that the term “vanilla” was misleading on the label of a soymilk product, but left the proverbial door open for the filing of an amended pleading.

In Clark v. Westbrae Natural, Inc., Case No. 20-cv-03221, Plaintiff alleged that Defendant’s use of the word “vanilla” on the label of its organic unsweetened soymilk misrepresented to consumers that the product’s vanilla flavor was derived exclusively from the vanilla bean plant. Gas chromatography‒mass spectrometry analyses showed that the flavor came from a non-vanilla source. Plaintiff alleged he would not have purchased the product had he realized the flavor was not derived from the vanilla bean, and asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  He argued that the product should be labeled “artificially flavored.”

Continue reading “Northern District of California Sours Plaintiff’s Claims against “Vanilla” Soymilk Maker”

New Conferral Requirement for Rule 30(b)(6) Depositions Effective December 1

Share

The last month of the year brought changes to Rule 30 of the Federal Rules of Civil Procedure, specifically Rule 30(b)(6), governing deposition notices to organizations. The rule was amended, effective December 1, 2020.

Continue reading “New Conferral Requirement for Rule 30(b)(6) Depositions Effective December 1”

New Jury Selection Procedure in California: Is This the End of Peremptory Challenges? Is This the End of Batson?

Share

Jury selection in California is undergoing significant change. In August 2020, the California legislature passed AB 3070, which was signed by Governor Gavin Newsome on September 30. Beginning in 2022, objections to peremptory challenges in criminal cases will have more teeth, including a list of presumptively invalid reasons for striking a prospective juror and a new standard of review for appellate review of a trial court’s decision. While AB 3070 does not apply officially to civil jury trials until 2026, the significant overhaul in procedure effectuated by this new law is likely to influence a court’s analysis of the civil jury selection process before that time. The new law’s aim is noble: to bring an end to discrimination in jury selection. However, critics, including many within the California judiciary, say the new procedure is “unworkable.”

Continue reading “New Jury Selection Procedure in California: Is This the End of Peremptory Challenges? Is This the End of Batson?”

Illinois Supreme Court Holds Employee’s Office At Home Not Sufficient to Establish Venue

Share

The Illinois Supreme Court recently held that the presence of an employee’s home office was not sufficient to establish venue in Cook County for a negligence action arising out of a vehicle accident in Ohio. Tabirta v. Cummings, et al., 2020 IL 124798 (Ill. Oct. 22, 2020). Reversing the trial and appellate courts, the Court held that having a sole employee with a home office in Cook County did not establish an “other office” of the corporate defendant for purposes of the venue statute, 735 ILCS 5/2-101(a), and that the employee’s activities and the company’s minimal sales in Cook County did not meet the “doing business” prong of the venue statute.

The underlying negligence action arose out of a collision in Delaware County, Ohio, in which the plaintiff suffered severe injuries after his truck was hit by a tractor-trailer owned by the driver’s employer, Gilster-Mary Lee Corporation (GML). The plaintiff, who was a Cook County resident, brought suit in Cook County against GML and the other driver, who was not a resident of Cook County. GML is a Missouri corporation with a principal place of business and registered agent in Randolph County, Illinois.

Continue reading “Illinois Supreme Court Holds Employee’s Office At Home Not Sufficient to Establish Venue”

A Litigator’s Guide to the 2020 New Jersey Rule Amendments

Share

The New Jersey Court Rules were amended in July 2020, effective September 1, 2020. A number of these amendments are important for litigators, and this post provides a summary.

New Jersey Court Rules Governing Motion Practice

Rule 4:6-2: Motions to Dismiss for Failure to State a Claim

Rule 4:6-2 (“How Presented”) governs assertion of defenses. The amendments target the Rule’s provisions governing motions to dismiss for failure to state a claim upon which relief may be granted. Previously, motions to dismiss were calendared on New Jersey’s typical 16-day cycle for motions, with motion papers required to be filed at least 16 days prior to the motion’s return date.  The amended Rule now requires such motion papers to be served in accordance with Rule 4:46-1 – New Jersey’s Rule governing summary judgment motions.

Continue reading “A Litigator’s Guide to the 2020 New Jersey Rule Amendments”