Pens in the Board Room
February 01, 2004
But these are my personal notes ...." Virtually every litigator has heard this plea from an executive responding to discovery. It is an almost reflexive reaction stemming from the popular myth that "personal" somehow equals "protected," and often comes from the most sophisticated of corporate directors and high-level management. Too often lawyers hear executives boast about their note-taking prowess while pointing to rows and rows of historical notebooks that they assembled over the years. Many executives learn too late that very little of their "personal" board meeting notes are privileged, and the privilege that might attach to some portions does not even belong to them. More and more frequently in this post-Enron environment, privileged materials are being disclosed by the owner of the privilege ' the corporation ' due to stricter standards for company cooperation in government investigations, particularly in civil investigations by the U.S. Securities and Exchange Commission and criminal inquiries by the U.S. Department of Justice.
A Policyholder's Common-Sense Approach to Business Interruption Claims
February 01, 2004
The tragic events of 9/11 brought to the forefront a form of insurance that has great importance for the business community, but heretofore has received relatively little attention from the insurance bar — business interruption insurance. The reason is simple: Notwithstanding the high-stakes litigation over the World Trade Center's insurance claims and other claims arising out of 9/11, business interruption claims have been the subject of infrequent litigation when compared with claims involving general liability, products liability, construction, and directors' and officers' coverage.
Spam Filters Raise Ethical Issues
February 01, 2004
Most attorneys rely heavily on e-mail as a primary form of communication with their clients. The accessibility, speed, flexibility and low cost of e-mail have made it a nearly indispensable tool in the business community. However, these same qualities that make e-mail so valuable have enabled unscrupulous marketers to blanket e-mail users with unsolicited e-mails, such as for mortgage refinancing, prescription drugs, obscene invitations and requests for help from fictitious Third World government officials. Spam is the nemesis of nearly every e-mail user, and as spam exceeds the point of accounting for one of every two e-mails transmitted, many feel that without remedial steps, this medium may be in jeopardy. It would seem then that technological enhancements to e-mail communications, such as spam filters, would be a natural and accepted outgrowth of this permissible communications method. However, attorneys are subject to ethical considerations not present in many other industries. Therefore, the specific manner in which a spam filter operates must be examined in order to gauge whether it is appropriate for a law firm environment.
Keep from Drowning in the Sea of Mass Torts!
January 13, 2004
In order to avoid drowning in the sea of mass tort litigation, drug and medical device companies must aggressively and "offensively" defend these actions -- and do so as soon as the mass tort litigation emerges. Critical to stemming the mass tort tide is an understanding of the factors that drive the filing of these actions against pharmaceutical and medical device companies: 1) the ease with which controversial issues relating to drugs and medical devices can be recognized; and 2) complicated causation issues. Armed with that understanding, the single most important pre-trial goal for any defendant must be the early exposure of frivolous claims based on tenuous causation and junk science.
Case Notes
January 01, 2004
Highlights of the latest product liability cases from around the country.
Discovery of Trade Secrets: What Constitutes Protected Information?
January 01, 2004
<i>Part One of a Two-Part Series</i> In a technology-driven economy, the threat to trade secret and propriety information is real and visceral. A recent survey estimated that theft of this information resulted in losses of more than $50 billion to the responding companies, which included Fortune 1000 corporations as well as small and midsized businesses, for the year ending June 30, 2001. The American Society for Industrial Security (ASIS) and PriceWaterhouse Coopers, <i>Trends in Proprietary Information Loss: Survey Report</i> (Sept. 2002). It is perhaps only natural that this threat should find its way into litigation, particularly product liability litigation. Discovery in these cases typically involves the production of some of the product manufacturer's proprietary and technical information. More recently, however, claimants have sought the manufacturer's trade secrets — highly confidential information at the heart of the company's business. The responding manufacturer objects to this discovery as causing irreparable harm if disclosed, and the battle lines are drawn.
Are Public Nuisance Lawsuits Against the Handgun Industry Gaining Ground?
January 01, 2004
Much has been written about the many lawsuits initiated by municipalities against the handgun industry. They are premised on the claim that the gun manufacturers and distributors saturate the market and fail to prevent their retailers from selling to persons who might resell to criminals. <i>See, e.g.,</i> Lawrence S. Greenwald, <i>Municipalities' Suits Against Gun Manufacturers ' Legal Folly,</i> 4 J. Health Care Law & Policy 13 (2000). Plaintiffs typically seek both damages and injunctive relief that would change industry marketing practices. The gun industry has challenged the legal sufficiency of the lawsuits on multiple grounds, with the majority of courts that have considered these issues dismissing the lawsuits. Recent developments, however, suggest that the pendulum may be swinging back in the governmental plaintiffs' favor.
Online: Web Site Offers Conservative, Libertarian Legal Resources
January 01, 2004
D. Jeffrey Campbell and Julie Smith Stypinski in their article this month direct readers to the Web site for The Federalist Society, <i>www.fed-soc.org,</i> for a transcript of a symposium on gun litigation. The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It was founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to the Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
Are You Filing Sales/Use Tax Returns?
January 01, 2004
There is good news for law firms and providers of legal services. Since they are exempt from sales tax in all states, they are not subject to collecting and remitting sales tax. However, because of the use tax (which is the other component reflected on the tax return), law firms and legal service providers should still file sales tax returns in their resident states. More and more law firms and other exempt service providers are being audited by the states for sales and use tax. These audits are resulting in firms being assessed thousands of dollars in use taxes, interest, and, in some instances, penalties.
