New York courts are trending towards a strict no-tolerance approach in disposing of cases for willful discovery violations. Under CPLR 3126(3), a party may seek to strike its opponent’s pleading for a willful failure to comply with discovery obligations. While this is a drastic remedy, litigants should consider whether to pursue it more aggressively. In a number of recent decisions, New York trial and appellate courts have taken a no-tolerance approach to bad behavior in discovery and have invoked CPLR 3126(3) to strike pleadings. Court are more and more often heeding the directive of the Court of Appeals that “[l]itigation cannot be conducted efficiently if deadlines are not taken seriously” and “disregard of deadlines should not and will not be tolerated.” Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 5 N.Y.3d 514, 521 (N.Y. 2005).

• Discovery
• New York Courts
• Litigation

The Supreme Court’s recent decision in Van Buren v. United States, 141 S.Ct. 1648 (2021), resolves a longstanding circuit split over the scope of the Computer Fraud and Abuse Act of 1986, and appears to have significantly narrowed the reach of a statute that has often been criticized as criminalizing too broad a range of computer-related conduct.  

• Supreme Court

Many ethics attorneys were intrigued by media reports of a complaint filed in February by Elliott Greenleaf, P.C. against four firm shareholder-attorneys and a paralegal who left the firm’s Wilmington office to join Armstrong Teasdale LLP. The complaint alleged that the defendants made secret plans to depart and “secretly copied and transferred out of the Firm certain client files, client correspondence, and Firm work product,” and “destroyed and shredded Firm files.” That was only one side of the story, of course. Hearing nothing about the other side, we checked the docket to see if the case had quickly settled, as many similar cases do. It turns out that the case is very active, and it continues to raise issues of interest to practitioners in this area. 

• Legal Ethics

More than a year into the Covid-19 pandemic, lawyers have become pretty comfortable taking and defending virtual depositions, including preparing a witness remotely. Even though remote depositions will become less frequent as the pandemic subsides, remote witness prep may remain commonplace. Here are a few things we’ve learned over the last year that are worth considering even when preparing for in-person depositions.

• Virtual Depositions

As discussed in Samantha Gerencir’s recent post “Making Mental Health Parity a Reality – the Challenge Continues,” patients seeking coverage for mental health conditions continue to face an uphill battle. For many years, the health care system has prioritized coverage for physical ailments over behavioral health issues.

• ERISA
• Parity Act

With a year of pandemic-fueled work-from-home experience under our collective belts, you can now find numerous helpful guides and horror stories to help you prepare for remote hearings and trials. There are some basics everyone should know by now, like making sure your internet is reliable (ethernet > WIFI); knowing the court’s rules for virtual hearings; and wearing pants. But here are some additional lessons from the virtual trial trenches that will help set you up for success:

• Virtual Hearings

It can be tough to wait for a judge to decide your motion. Lawyers and clients generally want a decision quickly, but sometimes that doesn’t happen.  

A little-known law, though, might help you learn a bit more about when your next motion will be decided. Under the Civil Justice Reform Act of 1990, 28 U.S.C § 476, judges must report motions that have been pending for more than six months twice a year: once on March 31 and again on September 30.  Generally, a motion is considered pending 30 days after it is filed.¹

• Civil Justice Reform Act

The Supreme Court’s recent decision in Ford Motor Company v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021), is the latest entry in the Court’s rulings on personal jurisdiction, and may force lower courts to reevaluate jurisdictional tests that have required a plaintiff to show that a defendant’s actions in the forum state had a causative link to the plaintiff’s claims.

• Supreme Court

To clarify a long-running, hotly-litigated question regarding when a new drug qualifies for exclusive marketing rights intended to reward innovation, Congress has taken an important step toward amending the Federal Food, Drug, and Cosmetic Act (FDCA).

• Food, Drug, and Cosmetic Act
• Hatch-Waxman Act

Maryland is harsh on lawyers who commit dishonest acts. Since Attorney Grievance Commission v. Vanderlinde, 773 A.2d 463 (Md. 2001), the Court of Appeals has stated many times that the presumptive sanction for dishonest acts is disbarment. To oversimplify, the Court reasons that lawyers who commit dishonest acts are dishonest lawyers and therefore cannot be entrusted with client matters.

• Legal Ethics