Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: Commercial Litigation

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Is a Third Party Entitled to its E-Discovery and Attorney Costs for Responding to a Subpoena?

Although e-discovery has been part of complex commercial litigation for over a decade, there have been only a few federal appellate court rulings about e-discovery topics. On April 7, 2016, in In re Am. Nurses Ass’n, the Fourth Circuit became the latest appellate court to issue such a ruling. The Court upheld a district court’s … Continue Reading

New York’s Highest Court Refuses to Expand the Common Interest Doctrine to Merging Parties

Last Thursday, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not protect their communications. In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., New York’s highest court held, in a … Continue Reading

Follow the Paper “Trial” – Proposed Commercial Division Rule Seeks to Replace Direct Testimony with Affidavits

The New York Supreme Court’s Commercial Division Advisory Council has recommended a rule that it believes would substantially expedite non-jury trials and facilitate cross examination with no adverse effects. According to the Council “such a rule would highlight the availability of a practice … that has been found by some judges and attorneys to streamline … Continue Reading

Running Into a Brick Wall, Who Wears a Black Robe: Tips For Trying a Case Before a Hostile Judge

For trial lawyers, hostile adversaries are par for the course. But judges are supposed to be irreproachably impartial, right? That is, after all, the very cornerstone of our judicial system. So when you find yourself trying a case in front of a judge who is openly hostile to your witnesses or your client’s case – particularly if … Continue Reading

The Supreme Court’s Spokeo Decision and its Potential Impact on Privacy and Data Security Class Actions

On May 16, 2016, the Supreme Court decided Spokeo, Inc. v. Robins, ruling that a plaintiff must sufficiently allege an injury that is both concrete and particularized in order to have Article III standing, and further that a “bare procedural violation” of a plaintiff’s statutory right may not be sufficiently “concrete” under this analysis. This … Continue Reading

To Save Secrecy Lawsuit, Twitter Must Challenge DOJ’s Decision to Classify Surveillance Requests

This month, a federal judge dismissed Twitter’s lawsuit challenging limits on the disclosure of government requests for information on Twitter users, pressing the company to file an amended complaint contesting the government’s decision to classify such requests. The case, Twitter, Inc. v. Lynch, began in 2014 after the U.S. Department of Justice (DOJ) prohibited Twitter … Continue Reading

The Basics of International Privacy Law for Commercial Litigators, Part 2: Global Trends

Although the volume of data that flows between the EU and the U.S. ensures that EU privacy law occupies most of the spotlight on the world stage, other countries have their own privacy laws worth noting as well.[1] Different Types of Privacy Regimes As a preliminary matter, it is important to keep in mind that … Continue Reading

Express Yourself! Ongoing Split Over Class Arbitration Points to Importance of Clear Provisions

Despite the numerous Supreme Court decisions limiting class arbitrations, one central issue remains undecided: who decides whether an arbitration agreement permits class arbitration, the courts or the arbitrators? Entities that want to avoid class arbitration want the question to be decided by the courts, where the appeal process ensures at least one level of review. … Continue Reading

The Basics of International Privacy Law for Commercial Litigators, Part 1: the EU

Let’s say an American commercial litigator is working to defend a multinational client that has been sued in the U.S. The litigator may realize that he or she needs to collect emails or other documents from the client’s office in Germany, perhaps for discovery or investigation. However, the export of the data contained in those … Continue Reading
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