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When product liability actions involving one or more common issues of fact (e.g., an allegedly harmful product or chemical) are filed in multiple jurisdictions, they are typically consolidated for pretrial proceedings in a multidistrict litigation (MDL). 28 U.S.C. § 1407(a). In an MDL, the lawsuits are transferred from their filing courts to a single “transferee” Court (the MDL Court) chosen by the Judicial Panel on Multidistrict Litigation (JPML). The purposes of this centralization are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. For example, overarching issues of law, such as preemption admissibility of common-issue expert opinions, are often resolved by the MDL Court instead of needing to be re-litigated in several different courts. Additionally, MDL Courts can hold bellwether trials to help the parties structure a global settlement process to resolve many or all of the filed cases.

Addressing an issue of first impression, and one that is becoming increasingly important as the legal industry has become more comfortable with and dependent on video conference technology in the aftermath of the pandemic, the Ninth Circuit has ruled that the 100-mile limitation under Rule 45(c) of the Federal Rules of Civil Procedure applies to remote testimony.

In In re John Kirkland, et al. v. USBC, Los Angeles, the petitioners, Mr. and Mrs. Kirkland who resided in California before relocating to the U.S. Virgin Islands, moved to quash subpoenas commanding them to testify via video conference at a trial before a bankruptcy court in the Central District of California. The bankruptcy court denied the motions finding that “good cause and compelling circumstances” existed to warrant the petitioners’ remote testimony pursuant to Rule 43(a), which provides that “[a]t trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise[; and f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” The bankruptcy court also concluded that Rule 45(c)’s “place of compliance” should be based on where a witness is located as requiring a witness to testify remotely from the witness’s home is not contrary to the purpose of Rule 45(c), which is to protect witnesses from the burden of having to travel extensively to testify at a trial or other proceeding.

A three-way circuit split has long plagued the realm of attorney-client privilege on how to treat communications that implicate both legal and non-legal concerns (known as “dual-purpose communications”). Namely, if a lawyer communicates with their client, simultaneously providing legal advice and business advice, is the entire communication protected by the attorney-client privilege? How substantial must the legal advice be for the communication to be privileged? The Supreme Court recently had the opportunity to resolve this split, but in a strange turn of events, dismissed the previously granted writ of certiorari as improvidently granted two weeks after hearing oral argument. Before delving into the oral argument and subsequent dismissal by the Supreme Court, it is worth reviewing a brief history of the existing circuit split.

Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

A proposed amendment to Federal Rule of Evidence 702, which governs the admissibility of expert testimony in federal court, could clarify the evidentiary burden on proponents of expert testimony and a court’s role regarding its admissibility. Motions under Rule 702, frequently called Daubert motions after the Supreme Court’s opinion Daubert v. Merrell Dow Pharmaceuticals Inc., are used to limit or otherwise exclude an expert’s testimony to a jury. These motions are often critical to a case’s success, especially in fields that rely heavily on experts such as antitrust, product liability, toxic torts, and environmental litigation. An amendment to Rule 702 currently under consideration looks to clarify the proper evidentiary standard for such motions.

During trial, lawyers make many strategic decisions to try to appeal to a jury.  For example, they consider not only the substance of the evidence they present, but also the emotional impact of that evidence.  But the impact of a witness’ testimony can be blunted if your jury is not following the testimony, so the use of demonstrative exhibits can be a useful tool to ensure the jury remains focused on the testimony.

In the United States, the scale of trade secret theft is estimated to be between $180 billion and $450 billion annually. Among the targets of this theft are pharmaceutical companies, which are some of the most research-intensive institutions in the world. Pharmaceutical research generally requires extensive work and often generates…

On June 30, 2021, pop star Kesha was reportedly handed a victory by a New York state court, which ruled that the state’s new anti-SLAPP legislation applied retroactively to music producer Dr. Luke’s lawsuit, in which he claims Kesha defamed him by allegedly falsely accusing him of rape.

The court’s decision means that Dr. Luke will face an elevated burden of proof at trial, needing to prove by clear and convincing evidence that Kesha acted with “actual malice” when she made her allegations against him. Previously, a New York state trial court held that Dr. Luke was not a public figure and therefore only had to prove that Kesha either knew her statements were false or acted with reckless disregard for the truth. That court did not take into account the new anti-SLAPP law, which was passed on November 10th, 2020.