Category: Evidence

Deliberate Without Documents? Denying a jury’s request for exhibits without a substantive justification might be reversible error in some courts

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Jurors are factfinders. In many deliberation rooms, however, jurors must begin their discussions without ready access to the exhibits admitted during trial. If a jury requests particular exhibits or evidence, then a trial court may exercise its discretion to decide whether to provide the requested materials. And in some courtrooms, a jury’s requests to review specific exhibits are routinely denied.

Abuse of discretion is a challenging standard of review for any appealing party. What would a party need to show to establish that a trial court abused its discretion? A recent opinion from Pennsylvania Superior Court, Schrader v. Ameron International Corporation, No. 2609 EDA 2018, 2020 WL 1460697 (Pa. Super. March 24, 2020), sheds some light.

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All in the Corporate Family: Attorney-Client Privilege Applies Between Parent and Subsidiaries

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The District of New Jersey confirmed that members of a corporate family all are represented by the same in-house counsel, whether that counsel occupies an office within the parent company or within a subsidiary, because corporate family members are considered joint clients. Accordingly, emails sent between in-house counsel employed by a subsidiary and an executive or representative from a parent company are protected by the attorney-client privilege. See Trzaska v. L’Oreal USA, Inc., No. 2:15cv-02713 (D.N.J. January 6, 2020).

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Hierarchy of Scientific Evidence Reigns Supreme: NJ Appellate Division Affirms Exclusion of Experts in Accutane Litigation

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In In re: Accutane Litigation (A-4952-16T1) — an appeal decided just 10 days after oral argument — the New Jersey Appellate Division applied the New Jersey Supreme Court’s landmark decision In re Accutane Litigation, 234 N.J. 340 (2018) (Accutane 2018), arising from the same multicounty litigation, to affirm exclusion of two of plaintiffs’ experts and dismissal of more than 3,000 cases.

The Accutane multicounty litigation involves thousands of cases in which plaintiffs claim the prescription acne medication caused inflammatory bowel disease (IBD). The litigation has been divided into two parts, based on the sub-type of IBD injury alleged: cases in which plaintiffs claim Accutane caused Crohn’s disease (CD) and cases in which plaintiffs claim it caused ulcerative colitis (UC).

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Overview of Amendments to New Jersey’s Evidence Rules, Effective July 1, 2020

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The increasing use of electronic discovery in litigation and the attendant high risk of inadvertent disclosures has led the New Jersey Supreme Court to adopt amendments to New Jersey’s Evidence Rule 530 (Waiver of Privilege by Contract or Previous Disclosure). The Court also adopted amendments to N.J.R.E. 608 (Evidence of a Witness’s Character for Truthfulness or Untruthfulness), and has ordered the restyling of 46 other Rules of Evidence. These amendments are effective July 1, 2020.

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Authenticating Social Media Evidence at Trial

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Social media is ubiquitous in our cyber-connected world. For many, the first thing a person does when they wake up, and the last thing that person does when they go to bed is read, post, or otherwise interact with platforms such as Facebook, Twitter, Instagram, LinkedIn, and the like. For litigants in a lawsuit the potential to unwittingly post something online that is not thought through or carefully composed can be a trap. Attorneys look at social media presence in their quest for evidence, and discovery requests for social media posts are commonplace in deposition notices, preservation requests, fact sheets, interrogatories, and requests to produce.

Social media is subject to Rules of Evidence principles, including relevancy, authenticity, hearsay, and the probative value of evidence in light of its potential for unfair prejudice. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007). Of these, authentication at trial is thought to be the “greatest challenge.” Hon. Paul W. Grimm, et al., Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433, 439 (2013). Authentication of social media evidence is more complicated than showing a witness a printout with an account name and photo alongside the commentary − and for good reason. As the Third Circuit has recognized, social media evidence presents special challenges because of “the great ease with which a social media account may be falsified or a legitimate account may be accessed by an impostor.” United States v. Browne, 834 F.3d 403 (3d. Cir. 2016).

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Whither Roberti? The Cockroach Precedent − An Exercise in Magical, Wishful Thinking

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Amateur philosophers, bar flies, and eulogists, among others, are known to wistfully observe that nothing dies so long as it is remembered and discussed. That’s a comforting sentiment when it comes to loved ones and legacies, but it can be mischievous and bothersome when applied to fallen case law. The long, drawn-out demise of Roberti v. Andy’s Termite & Pest Control. Inc., 113 Cal.App.4th 893 (2003) is a case in point, so to speak.

Pre-Roberti Expert Admissibility Standards – The Kelly/Frye Rule and a Suggestion of Daubert

Roberti is part of a much longer story about California’s journey to adoption of Daubert-style reliability gatekeeping for the testimony of expert witnesses.

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