So Maybe You Should Think About This Ahead Of Time

Tue, 24 Feb 2009 04:19:27 GMT

Good planning makes for less litigation

By Tim Cedrone

Hagenbuch v. 3B6 Technologies, LLC, 2006 U.S. Dist. LEXIS 10838 (N.D. Ill. 2006)

Employee/Employer Implicated: Management

eLesson Learned: Reach an agreement with the other party on how documents will be produced.

What happens when a company accused of patent infringement agrees to certain electronic discovery procedures and then fails to follow those procedures? continue…

Instant Messaging to Instant Jail

Fri, 20 Feb 2009 03:26:21 GMT

By Tanya Basu

State v. Voorheis, 844 A.2d 794 (Vt. 2004)

Employee Implicated: A (Perferted) Defendant

eLesson Learned: Instant messaging, or IM, may provide realtime convenience and conferencing capabilities, but it creates a written business record that may be subpoenaed and used as evidence in litigation or regulatory investigations.

E-mail use is on the decline as businesses rely more on continue…

Thou Shall Pit-Stop Before Requesting Metadata

Wed, 11 Feb 2009 15:00:48 GMT

By Evan Harris

Kentucky Speedway, L.L.C. v. National Association of Stock Car Auto Racing, Inc., 2006 U.S. Dist. LEXIS 92028 (E.D. Ky.)

Employees implicated: Counsel

eLesson Learned: Courts have recently become more reluctant to order a party to produce metadata unless the requesting party can show it’s necessary to the case. Thus, a party should limit its metadata requests continue…

Court: “TTYL texters, we r going 2 review ur msgs!”

Sun, 01 Feb 2009 05:18:46 GMT

Storing electronic communications, such as text messages, with a third-party does not remove a party’s discovery obligation to produce relevant, non-privileged electronic communications within its control, custody or possession.

By Liza Montesano

Flagg v. City of Detroit, 253 F.R.D. 346 (E.D. Mich. 2008).

Employees Implicated: Various city employees and officials.

eLesson Learned: The content of text messages and other continue…

The Price of Fame

Wed, 28 Jan 2009 21:35:46 GMT

By Daniel J. Ross

Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).

Employees Implicated: In-house counsel and retained attorneys, as well as anyone involved in the oversight of legal action or proceedings

eLesson Learned: Make sure that your company has a clear case review and discovery protocol to ensure that attorneys continue…

Think Before You Search, You May Have To Do It Again

Mon, 26 Jan 2009 01:22:07 GMT

Before conducting a search through electronic documents, the parties should consult with one another on the permissible scope of the keyword search. Failure to do so can result in an insufficient search and an additional search may be required at a substantial cost.

By Scott Paterson

Digicel Limited v. Cable & Wireless Plc, 2008 EWHC 2522 continue…

The Twombley Standard

Sat, 24 Jan 2009 22:25:14 GMT

Before conducting a search through electronic documents, the parties should consult with one another on the permissible scope of the keyword search. Failure to do so can result in an insufficient search and an additional search may be required at a substantial cost.

By Scott Paterson

Digicel Limited v. Cable & Wireless Plc, 2008 EWHC 2522 continue…

How Chickens and Eggs Relate to Patents and Infringement

Fri, 23 Jan 2009 12:00:08 GMT

By Daniel J. Ross Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008). Employees Implicated: Everyone, from management to individual employees to in-house counsel to independent contractors eLesson Learned: During discovery, make sure you and your employees give attorneys complete access to company email records, guiding them towards the accounts of relevant employees continue…

Keeping Safe from E-Discovery Pitfalls

Tue, 20 Jan 2009 12:00:07 GMT

By Nima Ashtyani Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008) Employee Implicated: Owner/Executive eLesson Learned: Use metadata to organize electronic information. Something as simplistic as a pre-set list of keywords to denote what is discoverable and what is privileged is a very good place to start. A lawsuit can occur continue…

C.A. Confirms that If Principal Claim Prescribed, So Are FLA Claims

Fri, 28 Nov 2008 22:05:36 GMT

In a very brief decision, the Court of Appeal today said, in Godoy v. 475920 Ontario Ltd., that “if the principal claim is statute-barred the derivative claim under the Family Law Act is also barred”. Here, the principal claim was subject to the limitation period under s. 38(3) of the Trustee Act: two years from [...]

In a very brief decision, the Court of Appeal today said, in Godoy v. 475920 Ontario Ltd., that “if the principal claim is statute-barred the derivative claim under the Family Law Act is also barred”. Here, the principal claim was subject to the limitation period under s. 38(3) of the Trustee Act: two years from the date of death. The discoverability principle does not apply to that limitation period. Claims under the Family Law Act, being derivative of the cause of action of the person injured or killed, stand in no better position, even though in another case (say, one involving personal injury rather than death), the discoverability principle might postpone the commencement of the limitation period.

The fact that no claim had actually been advanced on behalf of the deceased was held to make no difference.

Limitation Period for MVA Pecuniary Claims Follows That of Non-pecuniary Claims Says Superior Court

Wed, 15 Oct 2008 17:59:02 GMT

Hard on the heels of the Court of Appeal’s decision in Grewal v. Ivany, released last Friday, Mr. Justice Paul Perell has delivered reasons in Ng v. Beline that address one of the issues considered in Grewal: in personal injury claims arising out of motor vehicle accidents, are claims for pecuniary damages prescribed if not brought [...]

Hard on the heels of the Court of Appeal’s decision in Grewal v. Ivany, released last Friday, Mr. Justice Paul Perell has delivered reasons in Ng v. Beline that address one of the issues considered in Grewal: in personal injury claims arising out of motor vehicle accidents, are claims for pecuniary damages prescribed if not brought within two years?

In Grewal, the Court of Appeal said that “the issue whether [the plaintiff's] pecuniary damages claim is statute-barred is best resolved on a full record. This will ensure that any consideration of this important issue by this court will be informed by a reasoned analysis in the courts below.” We posted a commentary about that decision yesterday.

Today, Justice Perell released his decision in Ng, apparently without being aware of the ruling in Grewal. He also sent his case on to trial. But in doing so, he decided the legal issue that had been left open by the Court of Appeal in Grewal: whether a claim for pecuniary damages can be prescribed, even though a claim for non-pecuniary damages arising out of the same accident is not, by reason of the discoverability principle.

Ng was a claim that arose under the Bill 198 regime of the Insurance Act. The defendant moved for summary judgment, raising the following question:

When a person is injured in an automobile accident and suffers both (a) pecuniary (special) damages, which are not subject to any statutory threshold and also (b) non-pecuniary damages, which are subject to a statutory threshold, is a claim for pecuniary damages statute-barred if the person’s action is commenced more than two years after the discoverability of the claim for pecuniary damages?

Justice Perell referred to an earlier Court of Appeal decision, Chenderovitch v. Doe, which had also been cited in Grewal. In particular, he cited Moldaver J.A.’s conclusion, that in enacting s. 267.5 in the Bill 59 version of the Insurance Act, the legislature had intended to create separate causes of action for pecuniary and non-pecuniary damages claims (para. 23 of Chenderovitch). (Section 267.5 of the Insurance Act deals with the treatment of claims for damages for income loss, health care expenses and non-pecuniary damages. It sets out the “threshold” and deductibles in relation to the latter.)

Justice Perell felt that, applying common law principles, the plaintiff’s claim for pecuniary damages was certainly statute-barred, because the plaintiff had known, within days of the accident, that she had suffered economic loss but she did not sue until about 28 months after her accident.

But His Honour went on to hold that because of the legislative creation of more than one cause of action in motor vehicle cases, a conventional common-law analysis was inappropriate. Rather, injured plaintiffs should, he said, have the benefit of the most favourable treatment possible:

In my opinion, the spirit and thrust of the Chenderovitch judgment is that with respect to the operation of limitation provisions, a plaintiff with an automobile accident claim should receive the most favourable treatment possible, and this means that the measure of whether he or she has a claim is governed by the discoverability of the claim for non-pecuniary damages, which is the claim that is subject to the threshold test. This approach, in effect, continues the approach from Peixeiro. In practical terms, the pecuniary claims may shelter under the limitation period for the non-pecuniary claims if those claims are not statute-barred.

The result of Justice Perell’s analysis was to transform the limitation period issue. The question became one of discoverability: when had the threshold nature of the plaintiff’s claim for non-pecuniary damages been discoverable? If that date was more than two years prior to the commencement of the action, then the claims for both pecuniary and non-pecuniary damages would be statute-barred. But if the commencement of the limitation period for the non-pecuniary damages claims was postponed by discoverability, to a point less than two years prior to the date of issuance of the claim, then the pecuniary damages claims would be rescued as well. A trial will be required to decide the fact-based discoverability issue.

The legal principle decided by Justice Perell was exactly the one that the Court of Appeal declined to deal with in Grewal, saying that it required a “full record” before doing so. In our commentary, we questioned whether a factual background was really necessary in order for this legal issue to be decided. Justice Perell seems to have held a similar view.

C.A. Opens Door to Multiple Limitation Periods in MVA Cases

Tue, 14 Oct 2008 12:36:08 GMT

In Grewal v. Ivany, released last week, the Court of Appeal left open the possibility that a claim for pecuniary damages in an MVA action might be prescribed at the end of two years, even though the discoverability principle has postponed the commencement of the same limitation period for a non-pecuniary damages claim. The Court did [...]

In Grewal v. Ivany, released last week, the Court of Appeal left open the possibility that a claim for pecuniary damages in an MVA action might be prescribed at the end of two years, even though the discoverability principle has postponed the commencement of the same limitation period for a non-pecuniary damages claim.

The Court did not decide the issue though, because the appeal before it related to a motion for summary judgment. It held that the issues on the motion had to be decided on a “full record”.

The motions judge (E. MacDonald J.) had dismissed the plaintiffs’ action (arising out of an accident that occurred under the Bill 59 regime of the Insurance Act) on the basis that the threshold nature of the injuries had been known more than two years before the action was commenced. The Court of Appeal said that the judge had been wrong (on the facts of this case) to make such a ruling on a motion and ruled that there was a genuine issue for trial.

The defendant made a separate argument, that the claim for pecuniary damages was prescribed. (Of course, there is no threshold requirement for pecuniary damages claims, and therefore, nothing to which the discoverability principle would ordinarily apply.) Counsel for the defendant relied upon a 2004 decision of the Court of Appeal in Chenderovitch v. Doe, but the Court distinguished that case, noting that the plaintiff there had abandoned a claim for pecuniary damages, “[t]hus, it was unnecessary for this court to determine whether her pecuniary damages claim was foreclosed by the expiry of a limitation period”.

But the Court then went on to say, “[w]e conclude that the issue whether Gurcharn’s pecuniary damages claim is statute-barred is best resolved on a full record. This will ensure that any consideration of this important issue by this court will be informed by a reasoned analysis in the courts below.” [Emphasis added]

It strikes us as odd that the Court of Appeal could not or would not decide this issue, which seems to be entirely a legal one. Surely the question is whether, as a matter of law, the expiry of the limitation period for claims that are not subject to the discoverability principle is superseded by the postponement of the limitation period that can occur in relation to claims for non-pecuniary damages.

There have been several Superior Court decisions that have considered whether or not a claim for pecuniary damages can be statute-barred independently of a claim for non-pecuniary damages: Burke-Smith v. Sun, Fuller v. McCartney and Richmond v. Hope. Although there has not been, to our knowledge, a definitive pronouncement, the Superior Court judges have consistently refused to find that pecuniary damages claims were prescribed when there was doubt as to whether the claims for non-pecuniary damages had been saved by the discoverability principle. For some reason, none of these decisions was referred to in the reasons of either the Court of Appeal or Madam Justice MacDonald in Grewal.

Now, all bets may be off while we wait for a “full record” on this issue to make its way back to an appellate court.

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So Maybe You Should Think About This Ahead Of Time

Instant Messaging to Instant Jail

Thou Shall Pit-Stop Before Requesting Metadata

Court: “TTYL texters, we r going 2 review ur msgs!”

Storing electronic communications, such as text messages, with a third-party does not remove a party’s discovery obligation to produce relevant, non-privileged electronic communications within its control, custody or possession.

The Price of Fame

Think Before You Search, You May Have To Do It Again

Before conducting a search through electronic documents, the parties should consult with one another on the permissible scope of the keyword search. Failure to do so can result in an insufficient search and an additional search may be required at a substantial cost.

The Twombley Standard

Before conducting a search through electronic documents, the parties should consult with one another on the permissible scope of the keyword search. Failure to do so can result in an insufficient search and an additional search may be required at a substantial cost.

How Chickens and Eggs Relate to Patents and Infringement

Keeping Safe from E-Discovery Pitfalls

C.A. Confirms that If Principal Claim Prescribed, So Are FLA Claims

Limitation Period for MVA Pecuniary Claims Follows That of Non-pecuniary Claims Says Superior Court

C.A. Opens Door to Multiple Limitation Periods in MVA Cases