Deposing the Hospital's Librarian and Chief of Staff
December 01, 2003
As part of discovery, the attorney would want to determine the origin of a particular medical record and seek explanations for whatever spoliation has occurred, whether physical (destruction or absence of the record) or content spoliation (an inaccurate account of the medical care). The place to begin, then, is with those responsible for enforcing medical record rules and regulations: the Chief of Staff and the hospital medical record librarian.
Counterclaims: Actionable Retaliation?
December 01, 2003
An employee sues his former employer for ERISA violations and for unpaid commissions. The employer counterclaims, alleging various tort and statutory violations committed by the now former employee. Just another litigant asserting its right to seek redress in court. Right. Not according to the court ...
A Word to the Wise
December 01, 2003
A party moves to compel arbitration. The court grants the motion. Should the court dismiss the action or stay the proceeding? If the court dismisses the action, should the dismissal be with or without prejudice?
COBRA Notice and Disclosure Rules
December 01, 2003
Earlier this year, the US Department of Labor (DOL) published proposed regulations updating the notice and disclosure requirements applicable to health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). These proposed regulations update model notices, give disclosure guidance, and establish two new required COBRA notices.
Retaining Lawyer Negates Equitable Tolling
December 01, 2003
You are unsure of your rights, so you retain a lawyer. Do so at your own risk and detriment, one judge has concluded in the context of a FLSA claim for overtime. <i>Patraker v. The Council on the Environment of New York City</i>, 2003 WL 22336829 (S.D.N.Y. 10/14/03) (Kaplan D.J.)
Further <i>Zubulake</i> Ruling
December 01, 2003
In the context of electronic discovery but with implications beyond that setting, Judge Shira Scheindlin issued a further ruling in the hotly contested <i>Zubulake v. UBS Warburg</i> litigation outlining a defendant's obligation to preserve discovery following notice of a possible litigation. 2003 WL 22410619 (S.D.N.Y. 10/22/03) (<i>Zubulake IV</i>). In doing so, Judge Scheindlin has once again mapped the landscape and advanced the jurisprudence relating to the preservation, production, and payment of the costs of electronic discovery.
What Not to Do in a Hostile Work Environment Case
December 01, 2003
A recent decision, <i>Boggs v. Die Fliedermaus, d/b/a Le Bar Bat</i>, 2003 WL 22299315 (S.D.N.Y. 10/07/03) (Sweet, D. J.), offers many lessons for employers about what to do, and not to do, to position themselves for a successful summary judgment motion in a hostile work environment case.
What To Do When 'Strict' Means 'Strict'
December 01, 2003
It is well known that the doctrine of strict liability imposes responsibility upon manufacturers without regard to their fault or the degree of care they may have exercised in designing their products. Yet, in some jurisdictions the law of strict liability is stricter than in others, and courts in these "strict-strict liability" jurisdictions may prohibit the employment of certain common defenses to product liability claims. Manufacturers that find themselves on the defense in such jurisdictions may face the unexpected and initially unpleasant news that the trial on the horizon really will be about the product, the whole product and nothing but the product, and that the sole question for the jury may be "can someone given 20/20 hindsight fathom a plausible way to make this product safer?" Such manufacturers will often find that what they were hoping to rely upon for the cornerstone of their defense — explaining who, what, where, when, why and how from the company's perspective — is not only irrelevant but also inadmissible at trial.
