LJN Newsletters

When Congress passed the Class Action Fairness Act ('CAFA') in 2005, committee reports showed that several legislators believed the Act would shift from defendant to plaintiff the burden of proof with respect to the existence of federal removal jurisdiction. CAFA's legislative history contains statements from several members of Congress indicating that a plaintiff opposing removal under the Act would have the burden of establishing the absence of federal jurisdiction. For a short period following CAFA's passage, certain federal district courts found this legislative history controlling and held that CAFA shifted the burden of proof.

Part One of this article discussed the proposed new amendments to the Federal Rules of Civil Procedure addressing discovery of electronically stored information, scheduled to have taken effect on Dec. 1, 2006. The conclusion advises about sanctions, safe harbor, and production issues.

This article addresses a recent decision of a New York state appellate court concerning the admissibility of expert medical testimony to establish causation in a case involving injuries allegedly incurred from treatment with a prescription medication. In Zito v. Zabarsky, 28 A.D.3d 42 (2d Dep't Jan. 24, 2006), the appellate court held that expert testimony that a plaintiff's injury was caused by a prescription medication was admissible when that testimony was based on a single case report indicating a link between the medication and the injury. The court's holding is inconsistent with other New York appellate decisions addressing the admissibility of expert testimony concerning medical causation and threatens to dilute New York's standard for making that assessment, and could have the same effect in other states that apply the same standard.

On the first of this month, the long-discussed and much-awaited amendments to the Federal Rules of Civil Procedure (FRCP) were scheduled to go into effect. This issue and the changes to the rules affect most particularly counsel advising clients in e-discovery matters, but e-discovery and the treatment of information and communications ' before discovery is developed or consider, or before lawsuits are filed ' are issues critical to e-commerce, and that will become more important as this segment of the economy grows, for businesses and for law firms.
This article describes how non-traditional sources of electronic data may provide important evidence in investigations. These data sources, including instant messaging (IM), voice mail, Web-based e-mail and sales-management systems, present unique challenges in terms of procuring and analyzing raw data.

The recently released 2006 Altman Weil Law Department Compensation Benchmarking Survey of U.S. corporate law departments, published in partnership with LexisNexis Martindale-Hubbell, shows base salaries up across the board for in-house lawyers in 2006.

Revised Federal Rules of Civil Procedure have likely gone into effect as you read this. They place a very early focus on existing retention practices and the preservation and discovery of information. For companies without modern enterprise retention programs and robust legal holds processes, a thoughtful gap analysis and readiness plan should be completed immediately.

Highlights of the latest commercial leasing cases from around the country.

As retailers like to say, 'The three most important factors in retailing are location, location, location.' The real value of a retail lease, however, resides in the volume of sales produced at the location; therefore, the provider of the location — namely, the landlord — is a key player in the retailer's success. That is why percentage rent has developed in retail leases as a way by which the landlord that provides a successful location might share to some degree in that success.