Identifying Expert Witnesses
Anyone who has handled a custody or equitable distribution case knows that expert witness testimony may be necessary at trial with regard to the disputed custody or valuation issues. The Civil Practice Law and Rules require counsel to lay a preliminary foundation for the introduction of expert testimony at trial, if a proper demand is made. However, many attorneys never make such a demand, so their adversary is free to offer such testimony. Attorneys who serve a demand are often successful in precluding such testimony when their demand goes unanswered.
Grandparent Custody
On Oct. 8, 2003, Governor Pataki signed into law a bill, #S422A, which amended FCA '651(b) and DRL '72(2)(a) (b) (c), codifying jurisdiction to hear and determine petitions filed by grandparents for custody of their grandchildren. The amendments became effective Jan. 5, 2004. When the governor signed the legislation into law, it was lauded as an example of his commitment to New York State's children and families. Assemblyman Roger Green said, "In some cases, grandparents are the best viable guardian of a child. I therefore commend Governor Pataki for signing this law into effect on behalf of the many grandparents who work hard to provide a safe, nurturing home for their grandchildren. This is a wonderful day for grandparents and their grandchildren and the great State of New York."
Steering e-Discovery's Course
A group of vendors, attorneys and other electronic-discovery services "consumers" hopes to use public input to develop a reference model that would help set e-discovery standards and guidelines.
Subpoena For e-Mail
e-Mail is a rich source of e-discovery and it is being used more often in legal and regulatory actions. It was a significant source of evidence in the Enron scandal, in Martha Stewart's case and in hundreds of other cases. According to the ePolicy Institute, 21% of companies have been ordered by courts to produce employee e-mail. A critical consideration for counsel is that when a client receives a subpoena for company e-mail, the client will either be surprised and dismayed, or confident in its awareness and control of e-mail content. The latter situation, of course, is the better one in which to find oneself.
The Dangers Of Electronic Discovery
The <i>Morgan Stanley</i> case is the most recent example of the perils that corporate defendants face in the era of e-discovery. Electronic evidence, and especially e-mail, now plays a starring role in litigation and investigations involving large corporations, particularly in areas such as employment discrimination, fraud and corporate mismanagement. Judges are increasingly familiar with electronic discovery, and are increasingly willing to impose heavy sanctions on corporations that do not comply with electronic discovery requests. As the Morgan Stanley case shows, the consequences of these sanctions can be dire. It is important, therefore, that companies take heed of the lessons of the Morgan Stanley case, and ensure that they have in place a comprehensive and effective system to recover and produce electronically stored documents.
Flat CAM Charges in Shopping Centers
Don't look back, but the gross lease of the not-too-distant past is making a comeback, as shopping center owners and retailers continue to seek absolute truth in the never ending uncertainty of budgeting and recovering common area maintenance ("CAM") charges. The latest and greatest chapter in this continuing saga has the parties establishing flat CAM charges with set percentage increases, in lieu of the variable cost recovery method that has been somewhat industry standard over the past quarter century.
