Litigation

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On Dec. 1, 2006, new amendments to the Federal Rules of Civil Procedure addressing discovery of electronically stored information will take effect unless Congress enacts legislation to reject, modify, or defer the amendments. The amendments to Rules 16, 26, 33, 34, 37, and 45, which were approved by the U.S. Supreme Court on April 12, 2006, attempt to bring the discovery rules up-to-date in an Information Age where the majority of new communication and information is now created, disseminated, and stored in electronic media.

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One question that has been raised in pre-emption decisions is the degree of deference to be shown an agency's explicit statement that it intends certain failure-to-warn claims to be pre-empted. For example, in the pharmaceutical arena, the Food and Drug Administration ('FDA') through the Department of Justice ('DOJ') filed amicus briefs in several lawsuits to reiterate its position on pre-emption of state law tort claims. In these briefs, the United States stressed that in the context of warnings, 'more is not always better.' <i>Amicus</i> Brief for the United States, <i>Kallas v. Pfizer</i>, No. 04-00998 (D. Utah Sept. 29, 2005) at 28. The FDA's regulation of prescription drugs ensures each drug's optimal use by requiring inclusion of only scientifically substantiated warnings. <i>Id.</i> Plaintiffs' failure-to-warn claims therefore 'stand as an obstacle' to the FDA's accomplishment of its congressionally mandated purpose of ensuring the public health and are therefore pre-empted. <i>See Id.</i> The FDA has also stated its position on pre-emption in the preamble to its Rulemaking for Labeling requirement, which became effective on June 30, 2006. <i>See</i> 21 C.F.R. '10.85(d)(1) (2006).

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Like most rights, the right to a jury trial can be waived. In general, commercial landlords disfavor jury trials, especially when the opposing party is an individual, finding the outcomes of such trials to be either too uncertain, or if consistent, consistently against the landlord's interest. The general perception is that juries tend to favor individuals in disputes against institutional parties as a way to rectify a perceived injustice that corporations and other institutions allegedly inflict on the public. Jury trials are also more costly than non-jury trials, and parties may waive their right to a jury trial to avoid the added expense.

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Leases keep getting longer and tougher. Unfortunately, sometimes the people drafting them outsmart themselves and include unenforceable provisions.

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Rulings of importance to you and your practice.

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Analysis of recent key cases.

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A look at recent cases.

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The latest cases for your review.