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Tag Archives: discovery

Time’s Up: High court protects time limitations on government enforcement actions (access required)

On February 27, the U.S. Supreme Court made the right call by rejecting the SEC’s attempt to expand the government’s ability to bring civil penalty actions against financial institutions, businesses and individuals. In Gabelli, et. al. v. SEC, the government had taken the unprecedented position that the “discovery rule” applied to statutory enforcement actions covered under 28 U.S.C. section 2462, the five year statute of limitations provision. An SEC ruling would have allowed the government to bring new claims against companies and individuals based upon old activities if the government took the position that it had no knowledge of the conduct.

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Civil Practice – Sanctions – Rule 11 – Rule 7 Specificity – Gatekeeper Order – Discovery Motion (access required)

Fatta v. M & M Properties Management, Inc. Defendant’s motion for sanctions cited Rule 11 and specified that plaintiff’s own motion for sanctions was “frivolous and insufficient as a matter of law.” In addition, defendant’s motion to strike cited Rule 12(f) and specified that plaintiff’s motions “contain[ed] irrelevant outrageous assertions….” Therefore, defendant’s motions did not violate N.C. R. Civ. P. 7(b)(1).

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Domestic Relations – Alimony – Supporting Spouse – Equitable Distribution – Unequal Division – Discovery (access required)

Rochelle v. Rochelle The defendant-husband failed to comply with the trial court’s order compelling discovery, and the husband does not challenge the following finding of fact: “Because Defendant’s cash deposits are always more than enough to cover his fluctuating monthly expenses, it can be inferred that there is additional cash elsewhere to be able to cover additional expenses, such as alimony.” The inferred income surplus adequately supports the trial court’s conclusion that the husband was a supporting spouse.

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Intellectual Property – Copyright Registration – Application Approach – Tort/Negligence – Fraud — Civil Practice – Discovery – Apex Officers (access required)

Performance Sales & Marketing LLC v. Lowe’s Companies The court adopts the “application approach” to determining when a copyright is “registered.” Therefore, plaintiff’s copyright of its online grill parts ordering (GPO) system is deemed to have been registered on the date that plaintiff submitted its copyright application.

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Attorneys – Civil Practice – Discovery – Deposition – Corporate Counsel – Intellectual Property — Patent (access required)

Buyer’s Direct Inc. v. Belk, Inc. Documents produced in discovery show that defendants’ in-house counsel has direct personal knowledge of non-privileged facts relating to another lawsuit in which defendants were accused of infringing on their suppliers’ designs and manufacturing products based on such designs under their own private label. Plaintiff seeks to depose defendants’ in-house counsel as a fact witness, and defendants have not shown that such a deposition would be overly disruptive or burdensome to defendant.

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Civil Practice – Costs – Discovery – Electronically Stored Information – Copying Only (access required)

Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc. Even though defendant (the prevailing party) spent $111,047.75 for the technical, specialized services that were needed in order to “collect, process, preserve, track, copy to digital format, and ultimately produce” the large amount of electronically stored information (ESI) that was utilized in the discovery process in this case, under 28 U.S.C. § 1920(4), defendant is only entitled to recover “fees for exemplification and the costs of making copies….”

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Civil Practice – Discovery – Contract – Aircraft Lease – Expenses (access required)

Rayfield Aviation, LLC v. Lyon Aviation, Inc. Defendant contends plaintiff was having financial difficulties that motivated plaintiff to bring this allegedly frivolous lawsuit. However, since the “motive” for the suit is not relevant to the actual breach of contract claims raised in this case, defendant is not entitled to discover plaintiff’s financing and revenue information.

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Civil Practice – Discovery – Sanctions – Attorneys (access required)

Pitts v. McClanahan Even though, after the court issued an order compelling discovery, plaintiff still failed to provide complete responses to defendants’ discovery requests, plaintiff’s counsel states that he filed this action because of the impending statute of limitations, that he lacks experience litigating in federal court and that much of the information requested by defendants was unavailable at the time.

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