Subject: Pennsylvania

The Ethics of Social Media “Friendship”

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Social media information that reflects a person’s physical condition, activity level, and emotional state is a particularly valuable source of discovery in product liability and personal injury cases. See, e.g., Forman v. Henkin, 30 N.Y.3d 656 (2018). Lawyers must take great care to collect that information ethically.

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The Key to a Trade Secret Is Secrecy: Third Circuit Agrees Ownership Is Sufficient but Not Necessary to Maintain a Trade Secret Misappropriation Claim

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In a case telling a “sorry story of disloyalty and deception piled upon deception,” the Third Circuit has held that licensees, not only owners, have standing to protect the confidentiality of trade secrets and the right to be compensated for their unlawful use and disclosure.

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En Banc Third Circuit Sends Online Marketplace Liability Issue to Pennsylvania Supreme Court

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Last week the Third Circuit made its most recent move in the Oberdorf v. Amazon case: asking the Pennsylvania Supreme Court whether an e-commerce business – such as Amazon – is strictly liable for a defective product that was sold on its platform by a third-party vendor that the e-commerce business did not possess or own. Given the lack of clarity, and the “substantial public importance” of this issue, the Third Circuit asked the Pennsylvania Supreme Court to weigh in.

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Dire Consequences: Avoiding Waiver in Pennsylvania Jury Selection

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Practicing law at a socially appropriate distance has forced many litigators to broadly consider the value of face-to-face interaction—and what may be lost in its absence.  A recent Pennsylvania Supreme Court opinion highlights the importance of face-to-face interaction between a trial court judge and prospective jurors during voir dire.  It also unfolds a cautionary tale about waiver for counsel who would challenge a prospective juror based on actual bias.

In Trigg v. Children’s Hospital of Pittsburgh of UPMC, 2020 WL 1932639 (Pa. Apr. 22, 2020), the Court found a medical malpractice plaintiff waived her objection to the procedure by which the trial court had evaluated an objection to a juror’s actual bias.  The plaintiff challenged the juror for cause at trial, but argued for the first time in post-trial motions that the judge did not have the chance to observe the person’s “demeanor” because jury selection was overseen by the court clerk, with the challenge evaluated by the judge based only on the transcript record.

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Rejection of Improper “Attorneys’ Eyes Only” Disclosure Process Relating to Attorney-Client Privilege Challenges

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The attorney-client privilege is one of “the most revered” privileges established to protect certain communications. The Pennsylvania Superior Court recently held that it was improper for a trial court to order the disclosure of information, which a party claimed was privileged work product, on an “attorneys’ eyes only” basis to counsel for the opposing party.

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Third Circuit Holds Online Retailers May Be Liable for Defective Third-Party Products Under Pennsylvania Product Liability Laws

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The Third Circuit Court of Appeals has held that online retailers such as Amazon could be held liable for allegedly defective third-party products sold through its website.
In a 2−1 panel decision in Oberdorf v. Amazon.com, Inc., — F.3d —, 2019 WL 2849153 (3d Cir. July 3, 2019), the Third Circuit Court of Appeals reversed the district court’s ruling that Amazon was not a “seller” under § 402A of the Restatement Second of Torts, and therefore could be held strictly liable under Pennsylvania products liability law.

Pennsylvania has adopted Restatement Second of Torts § 402A, which “specifically limits strict products liability to ‘sellers’ of products.” Because the Pennsylvania Supreme Court has not yet addressed whether an online sales listing service such as Amazon Marketplace qualifies as a “seller” under § 402A, the district court was tasked with predicting what the Pennsylvania Supreme Court would decide under Pennsylvania law.

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