Trial Smarts: Using an Evidence Log at Trial

Building or defending a case at trial is akin to putting together a puzzle.  The well prepared advocate need not “wing it” if pains are taken to organize evidence before the trial begins.

I started my legal career as an assistant district attorney.  As a young prosecutor, I observed that the courtroom deputy or clerk completed a log during trial in which he or she identified exhibits when marked them for identification and noted when the exhibits were admitted into evidence.  I obtained a copy of the “evidence log” and subsequently used one to keep track of evidence during trial.

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Amended Federal Rules Emphasize Proportionality and Cooperation

This is the second post concerning amendments to the Federal Rules of Civil Procedure (“FRCP”), which became effective on December 1, 2015. This post focuses primarily on amendments to FRCP 1 and 26 governing the need for proportionality.

The prior post concerned revisions to FRCP 37(e) governing the preservation of electronically stored information (“ESI”), the remedies for spoliation of ESI where a party has failed to take “reasonable steps” to preserve, and remedies arising from “prejudice” as compared to spoliation of ESI arising from “intent to deprive”.

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Amended FRCP 37(e) Provides Rules Governing ESI Preservation and Sanctions

Amended Rule 37(e) of the Federal Rules of Civil Procedure (“FRCP”), effective as of December 1, 2015, squarely addresses sanctions for the spoliation of electronically stored information (“ESI”) and overrules Second Circuit jurisprudence in the area. Some commentators have called FRCP 37(e) the most significant rule governing eDiscovery since the Zubulake line of cases.

Prior to the adoption of FRCP 37(e), there existed a split among the Circuits as to the grounds for sanctions arising from the spoliation of ESI. In 2002, in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), the U.S. Court of Appeals for the Second Circuit permitted sanctions for negligent failure to preserve. That decision conflicted with less stringent standards in the Fourth, Tenth and Eleventh Circuits, which required a showing of “willfulness” or “bad faith” to support sanctions for spoliation. FRCP 37(e) rejected the Residential standard in favor of a bad faith standard for the imposition of more serious sanctions.

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ADR/Mediation in Bankruptcy Cases

On October 7, 2015, I had the privilege of co-sponsoring a “Brown Bag” lunch meeting at the Nassau County Bar Association on mediation in bankruptcy cases. In conjunction with the ADR Committee, the Bankruptcy Committee that I chair worked with the Honorable Alan S. Trust and the Honorable Louis A. Scarcella, sitting bankruptcy judges in the Eastern District of New York, and practitioners Leslie A. Berkoff, Esq. and Andrew M. Thaler, Esq. to lead the discussion. Topics discussed included procedures for assigning cases to mediation, the role of the mediator, the purpose of meditation and the potential benefits of mediation.

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Supreme Court Hears Oral Argument on “Lien-Stripping” in Chapter 7 Cases

In 1992, the United States Supreme Court came down with a decision in Dewsnup v. Timm that has caused a stir in the Chapter 7 bankruptcy world ever since. The Court held that, under section 506(d) of the Bankruptcy Code, a Chapter 7 debtor could not “strip down” a lien to the current value of the collateral, thereby getting rid of a junior mortgage lien, when the senior debt owed exceeds the value of the collateral. In part, the Supreme Court went against lien-stripping because the Bankruptcy Act (the predecessor to the Code) provided that liens pass through bankruptcy unaffected and the Bankruptcy Code’s ambiguous language was not a clear departure from this principle.

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