Archives for June 2023

June 26, 2023

Depositions are a key discovery practice in litigation to obtain testimony, clarify the facts of the case, and directly speak with the deponent. Depositions are a tool used during discovery where a witness or party to the lawsuit gives testimony under oath outside the court. Conducting depositions is an effective way to try and strengthen the client’s case by learning more about the deponent’s position, evidence, and arguments.

Some of the benefits of conducting depositions include:

  1. Providing an opportunity to question witnesses under oath to evaluate credibility.
  2. Gathering relevant information and evidence.
  3. Preserving testimony and evidence that could be lost given lapses of time.
  4. Obtaining evidence to support a motion for summary judgment, which if granted would conclude the case and save both parties time and expenses.
  5. Providing an opportunity to request and obtain documents from parties and non-party witnesses.

Conducting thorough depositions is an essential aspect of litigation, as the testimony provided during depositions can be used later in trial for evidence, to prove an allegation, or to challenge the other party’s position.

To read how Castaybert PLLC can assist you in litigation and arbitration, click here.

 

June 23, 2023

Kaye Spiegler PLLC just published a helpful article about the most prominent legal disputes of art and antiquities in the United States in The Art Law Review. The article focuses on landmark cases and laws relevant to the United States.

The main art-law related concerns discussed include:

  • Issues of title defects in art sales and transactions.
  • The differing statute of limitation periods depending on the type of art law claim being pursued.
  • Claims for repatriation of Nazi-looted art.
  • The lack of a formalized alternative dispute resolution forum for art restitution in the United States, whereas most European nations have implemented such forums.
  • The landmark Federal Republic of Germany v. Philipp case in 2021 which granted restitution of the medieval-era Guelph Treasure to its rightful owners from a German agency.
  • The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) which aims to prevent the trade of looted and illicit antiquities.

To read the full article from Kaye Spiegler PLLC, click here.

To read how Castaybert PLLC can help with art law matters, click here.

 

June 22, 2023

On June 7, 2023, the New York State Senate passed Senate Bill 3100A prohibiting most non-compete agreements in employment contracts. Shortly after on June 20, 2023, the bill passed in the New York State Assembly. This Bill has not been officially enacted yet, but if it is signed by Governor Hochul, it will become law and have a significant effect on business practices and employment contracts.

Subsection 1 of the Bill defines a non-compete agreement as “any agreement, or clause contained in any agreement, between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment, after the conclusion of employment with the employer”. It further declares “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”.

In essence, this Bill prevents employers from restricting where a terminated employee can get employment after their employment ends. The New York State Senate stated the justifications for this Bill are:

  • Non-compete agreements have a negative effect on the labor market and economy of New York State. They prevent workers from seeking employment at entities that may be a better fit, and they provide employers from providing more competitive benefits and wages because their workforce cannot seek employment elsewhere.
  • In certain industries, they can have a detrimental impact on consumers.
  • Recently, the federal government has announced an interest in banning such agreements nationwide via an FTC regulation, so this bill would codify such a ban in state law.

The scope of S 3100A is solely the restrictions of the non-compete after the conclusion of employment. Any non-compete agreements related to the present duties of an employee or independent contractor currently employed are still valid and enforceable. This bill does not affect non-solicitation agreements or non-disclosure agreements. Further, otherwise valid contracts will be enforced notwithstanding an unenforceable non-compete provision.

These changes will only take effect if Governor Hochul signs the Bill and will not retroactively apply to any previous non-compete agreement agreed upon prior to enactment.

While other states have similarly restricted the scope of non-compete agreements for employment contracts, New York could now become the fifth state to ban nearly all non-compete agreements for employees, following Minnesota, Oklahoma, North Dakota, and California.

To read the S 3100A Bill, click here.

To read how Castaybert PLLC can assist you with Employment Counseling and Disputes, Executive Separation and Severance, Trade Secret Protection, and Noncompetes click the respective link.

 

June 12, 2023

As each dispute is unique, the mediation session itself is flexible and can occur in a few different formats. The mediation can involve a mix of joint sessions and private, individual caucuses.

The joint session is a format for mediation that places all parties in the same room to facilitate direct communication and discussion between participants. Often an initial joint session will be followed by independent caucuses between only a party and the mediator, allowing a more private discussion to take place. We will discuss the use of independent caucuses in the mediation procedure in a future post.

If a party feels strongly about a preference for the approach of the mediation in the use of joint sessions and/or caucuses, they may make that request directly to the mediator in a pre-mediation conference, statement, or confidential side letter.

Three common ways joint sessions can be used in mediation are:

  1. After the mediator’s opening statements, the parties may stay convened in a joint session and address the other participants and make opening statements. Opening statements can be made by the party, counsel, or both. Opening statements typically touch on a party’s position and overall goal for the session, and hearing the other party’s statement presents an opportunity to listen to find common ground. After opening statements are made, a larger discussion of the dispute and central issues and concerns can begin facilitated by the mediator.
  2. After the mediator’s opening statements, the parties may remain in a joint session and address questions and concerns together, without making opening statements.
  3. After independent caucuses with a party and the mediator have met, the mediator may suggest all parties convene to engage in a joint session to navigate specific concerns and issues.

Joint sessions have several benefits including:

  • The open dialogue between participants of the mediation permits the parties to directly speak to each other and facilitates clear communication of the parties interests, concerns, and goals.
  • Having all the parties in the same room to hear each other may build trust and empathy and increase the likelihood of finding a mutually beneficial solution.
  • Joint sessions promote a high level of engagement between the participants where parties can ask questions and share individual insights into the dispute.
  • Joint sessions can be efficient in saving time and money as they bring all parties together in one session, rather than two separate caucuses.
  • Joint sessions allow the mediator to observe the dynamics between the participants, which can aid in the mediator’s understanding of each party’s position and finding a mutually beneficial solution to the dispute.

Either party or their counsel may want to avoid a joint session when there is a power imbalance between parties, or when face-to-face discussions may lead to more arguments and unpredictable emotions. A 2015 JAMS survey reported that there has been “a decline in the use of joint sessions,” and litigators and mediators believe this change is occurring because in certain instances upfront communication can increase hostility and be “counter-productive”.

But, in other cases, upfront dialogue between parties can build trust and empathy as it allows each side to see the concerns and goals of the other more clearly, and to work together with the mediator to find a mutually beneficial solution to the dispute.

To read how Castaybert PLLC can assist you with mediation, click here.

June 12, 2023

In a discussion of the decision by the U.S. District Court for the Northern District of California in the In re Google Play Store Antitrust Litigation Case, a recent article from Davis + Gilbert highlights the obligations parties face to preserve important documents and information during litigation.

Google was sanctioned and required to pay the Plaintiff’s reasonable attorney fees due to its failure to preserve relevant chat messages on its internal platform Google Chat. The default Google Chat settings typically only keep messages for 24 hours, but the settings may be updated to retain messages for longer periods. Google became involved in this litigation in September 2020, and it had the capability to preserve the history of messaging for the relevant employees, but it failed to do so. The Court sanctioned Google under Federal Rules of Civil Procedure 37(e) for failure to preserve relevant information.

Ensuring all key documents are preserved is paramount to ensure all available resources and evidence are available to all parties to the case to maximize fairness, consistency, and due process.

It is advisable to consult with an attorney before and during litigation to ensure the appropriate measures have been taken to preserve essential documents and information (standard and/or electronic) to avoid later sanctions during litigation.

To read the full article from Davis + Gilbert, Sanctions Against Google Show Importance of Litigation Document Preservation, click here.

To read how Castaybert PLLC can assist you in litigation and arbitration, click here.

 

 

June 6, 2023

A new article from Practical Law The Journal investigates how generative artificial intelligence tools like ChatGPT present new legal issues in different practice areas, including labor and employment, intellectual property, commercial transactions, and data privacy and cybersecurity.

ChatGPT is the most well-known generative AI mechanism that uses a simple chatbot interface, allowing users to ask questions on any given topic and ChatGPT responds using dialogue-based artificial intelligence. While ChatGPT can provide profound responses to certain questions, legal experts have noted its responses to legal questions can be inaccurate. The rise of the use of ChatGPT and similar generative AI functions by the public and in practice has raised both legal and ethical questions in its applicability to legal practice.

The Practical Law article explores numerous key issues associated with generative AI including:

  • Claiming copyright ownership of ChatGPT’s output and general copyright infringement risks of using generative AI.
  • The risks for companies, employees, and employers when using ChatGPT, including data privacy concerns and potential bias in responses from generative AI.
  • Applicable data privacy laws and regulations to the use of generative AI tools and potential security risks of artificial intelligence given the methods of data storage and general data collection.

To read the full article from Practical Law The Journal, ChatGPT and Generative AI: Key Legal Issues, click here.

June 5, 2023

Before the mediation, at the invitation or suggestion of the mediator, a party may elect to send the mediator a confidential side-letter in addition to the pre-mediation statement exchanged with the other party. The side-letter for the mediator’s eyes only is an opportunity to communicate additional private or sensitive information, interests, concerns, or requests to the mediator without disclosing it to other participants. These letters typically inform the mediator about the party’s settlement preferences, financial concerns, personal information, or information about the other party that might impact the mediation but which for one reason or another the party does not want to share with the other party at the time of mediation. Confidential side letters to the mediator are private and are not shared with any other participants of the mediation, unless permission is explicitly granted to do so. The mediator is prohibited from sharing any aspect of the confidential letter with any other participant of the mediation as they are bound by the rules of confidentiality, and a party is not required to submit a confidential letter even if other participants do.

The purposes of the side-letter to the mediator are to provide the mediator with a deeper awareness of a party’s position and concerns, to allow the mediator to better understand the potential hurdles or proposed solutions or settlement offers, and to allow the mediator to understand the parameters of the negotiation and potential alternative solutions or paths to settlement than the opening positions set forth in the pre-mediation statements.

Among other things, the confidential side letter to the mediator may allow a party to:

  • Disclose sensitive information or concerns privately so that the submitting party’s position is more transparent for the mediator.
  • Allow the mediator to understand the party’s underlying preferences and financial and emotional interests which the party is hesitant to express to the other side.
  • Suggest alternative negotiation strategies or settlement proposals that the party may not want to share with the other participants at the outset of the mediation but that may be relevant later in concluding a deal.
  • Allow the party to make its position clear to the mediator although the information cannot or should not be shared with the other party because of a disparity of information or an imbalance in leverage or bargaining power between the participants.
  • Providing context related to a participants cultural or religious background, allowing the mediator to better assess the dispute and satisfy the most pertinent interests and concerns.
  • Allow the party to share sensitive information with the mediator that might alienate or even infuriate the other party and derail the mediation at the outset in order to preserve a working relationship with the other party during the mediation and thereafter should the mediation prove to be successful.

There are potential downsides to the side-letter to the mediator:

  • A confidential letter to only the mediator reduces transparency between the parties themselves and could hinder trust and open communication.
  • Not sharing key concerns with the other side doesn’t allow the other party to fully hear your position and interests and the ability to find a mutually beneficial resolution.

Different mediators have different preferences for confidential letters, so it is advisable to consult with the mediator directly to determine the mediator’s preferences for the format and nature of the statement. In any event, the side letter itself should make clear that it is confidential and for the mediator’s eyes only and is not to be shared with the other party.

As the mediator is a neutral third party between the participants, sharing sensitive and private concerns and interests with the mediator before the mediation begins can highlight the deeper dynamics of the participants and the dispute, helping the mediator in finding a beneficial resolution for both parties. It may also be a useful tool to further advocate for your position in mediation, and ultimately to avoid litigation.

To read how Castaybert PLLC can assist you with mediation, click here.

June 5, 2023

The pre-mediation statement gives each party an opportunity to present background information on the dispute and advise the mediator of its respective position. It also allows you to share your client’s position on the facts and the law with the other party so that all participants gain a comprehensive understanding of the parties positions and goals before the mediation begins.

A Pre-Mediation Statement typically has six parts:

  1. Background of the dispute
  2. A summary of the facts
  3. A narrative of the party’s legal position
  4. A recitation of settlement negotiations
  5. A description of the settlement position
  6. Attachments of strong evidence as exhibits

The parties may consent to disclose their statements to the other party prior to the scheduled mediation, or the statements can be confidential and only seen by the mediator. As will be explained in a future post, often the parties exchange pre-mediation statements, sometimes responses, and are invited to submit separate side-letters for the mediator’s eyes only. Confidential side-letters allow a party to share information with the mediator that they are reluctant to share with the potential adversary in mediation.

Occasionally, a mediator may request each party to include certain information in their pre-mediation statement, such as acceptable settlement terms, information from previous settlement conversations, or a specific format for the statement. If the mediator does not mention their preferences in the pre-mediation conference, it is advisable to consult with the mediator directly to determine the mediator’s preferences for the format and nature of the statement. The process of drafting a pre-mediation statement allows the parties to each consider their goals and potential solutions before the mediation begins. Considering different settlement positions in advance of the mediation increases the likelihood of finding a mutually beneficial solution and ultimately will promote a more productive and effective mediation. While the pre-mediation statements exchanged by the parties are confidential to the outside world, it is advisable for the statement to include an explicit sentence that makes it clear that the statement is confidential and submitted for settlement purposes only.

The pre-mediation statement is a crucial step in the mediation process to educate the mediator, but also the parties, and to identify the issues and goals that matter to each side. Review of the parties’ pre-mediation statement will allow the mediator to prepare for the mediation and think beforehand of potential creative solutions and proposals for the parties to consider, both as a matter of process for the mediation, and for creating a framework for settlement discussions.

To read how Castaybert PLLC can assist you with mediation, click here.

 

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