Last year, we explored the Federal Judiciary’s new safeguards and procedures to protect sensitive court records in light of the SolarWinds Orion cybersecurity breach. Now, as a result of increased hostilities between Russia and the United States, the New Jersey Judiciary is taking steps to ramp up cybersecurity by blocking web traffic from outside the United States.
Category: Practice of Law
The California Supreme Court Shrugs Off a Settlement to Provide Important Guidance on Admissibility of Former Deposition Testimony by Company Witnesses
We reported back in December [California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions] on a case then pending before the California Supreme Court, Berroteran v. Superior Court. The case involves the former testimony exception to the hearsay rule, Evidence Code section 1291(a)(2), as applied to the deposition testimony of company witnesses taken in prior litigation. [Disclaimer: I wrote an amicus brief in support of the petition for review and another on the merits.]
Oral argument did not go well for the plaintiff. Consequently, it was not surprising that within a few days the parties notified the Court that they had reached a settlement. The Supreme Court could have dismissed the appeal at that point and left the issue unresolved. But because its core mission is “to secure uniformity of decision” and to settle important questions of law, Cal. Rule of Court 8.500(b), the Court went ahead and decided the appeal. 2022 WL 664719 (Cal. Mar. 7, 2022). And, as Larry David might say, the decision is pretty, pretty good.
Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers
For many litigators, sworn testimony today looks much different than it did two years ago. As the COVID-19 pandemic has required parties to limit travel and in-person proceedings, remote testimony for depositions, arbitrations and even trials has become the rule rather than the exception. With this transition, litigators have been confronted with unique circumstances and felt compelled to ask questions to confirm that the witness’s testimony is that of the witness, and only the witness. For example, is anyone else present in the room with the witness? Does the witness have any unauthorized lines of communication that could be used while the sworn testimony is proceeding? It has now become critical to ask a witness to swear under oath that there is no one else in the room with the witness and that no person is authorized to communicate with the witness during her or his testimony. Several recent decisions solidify this practice point and illustrate the consequences to litigants and lawyers when a witness surreptitiously communicates with others during the course of remote testimony.
California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions
The California Supreme Court will soon decide an evidentiary issue that could significantly impact how company witnesses are defended at deposition.
The Court heard argument December 7 in Berroteran v. Ford Motor Co., No. S259522, a class action opt-out case alleging consumer fraud claims based on purported defects in a Ford truck engine. The appeal involves interpretation and operation of California Evidence Code section 1291 — an exception to the hearsay rule for former testimony — and specifically how it applies to the deposition testimony of company employees taken in prior cases.
Ford moved in limine to exclude as hearsay the deposition testimony of nine current and former Ford employees taken in similar cases. In response, Plaintiff relied on section 1291.
District of New Jersey Clarifies New Local Civil Rule Regarding Third-Party Funding Disclosures
Over the last four months, we have tracked the District of New Jersey’s proposal and adoption of a new Local Civil Rule – L. Civ. R. 7.1.1 – requiring lawyers to disclose details about third-party litigation funding. The Clerk of the District of New Jersey has now issued a Notice to the Bar clarifying that this new Rule only requires the filing of a statement where third-party litigation funding exists.
New Jersey Ethics Committee: Beware Marketers that “Lead” to Ethics Violations
Increasingly popular online “lead generation” services offering to connect attorneys with potential mass tort plaintiffs may expose counsel to ethics violations, the New Jersey Advisory Committee on Professional Conduct cautioned in two recent advisory opinions.
New Jersey attorneys are charged with the affirmative responsibility to “question whether the marketing company is improperly labeling its services,” the committee stated in a June 21, 2021 joint opinion with the Committee on Attorney Advertising. On the same date, the Advisory Committee issued another joint opinion with the Committee on the Unauthorized Practice of Law offering further insight on the circumstances in which a permissible client lead becomes an improper for-profit referral.
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