The Library

When people hear “intellectual property” they often think of complicated software source codes, top-secret formulas or sophisticated patents developed by large tech companies headquartered in the Silicon Valley. What most business owners do not realize is that every company has intellectual property (“IP”) and they do not have to be Google or Facebook to benefit from it. Smaller, closely-held companies of all kinds here in the Roanoke and New River Valleys can, and do, benefit greatly from protecting and taking advantage of their IP. Whether your business is in the market of developing software for use by professional institutions or […]

Dunlap v. Cottman Transmission Systems, LLC — Another Round for Contract v. Tort Claims in Virginia Contracts. Torts. These twin pillars of U.S. jurisprudence are core curriculum at every law school. But just like they are taught separately, courts take pains to keep these theories of liability distinct from one another. The Supreme Court of Virginia is no different. A legion of cases stand for the seemingly straightforward proposition that mere breach of a contract cannot constitute a tort. The practical meaning of this principle, however, continues to be defined and refined. Four years ago, the Supreme Court applied this […]

On March 13, President Obama prominently “used his pen” in a ceremony in which he announced the Administration’s intent to give more Americans the chance to earn the overtime pay that “they deserve.” What the President actually did was sign a memo addressed to the new Secretary of the Department of Labor to consider how the white collar overtime exemptions can be changed in order that more people will be eligible to earn overtime. At present, to qualify for one of three “white collar” exemptions, an employee must be paid at least $455.00 a week on a “salaried” basis and […]

Well, it appears that the Carnell Construction case is not over yet, and it continues to create interesting construction law precedent. The Fourth Circuit is sending the case back down for trial number four! This case is starting to remind me of the famous Zubulake cases, with its several important e-discovery opinions numbered Zubulake I through V. A quick look on Google Scholar shows fifteen Carnell opinions! So, let’s take a look at the latest iteration (perhaps, we should call it Carnell XV) as it relates to construction law. Note that there are many interesting (and apparently controversial – check […]

The Supreme Court’s Expansion of Warrantless Searches in Fernandez v. California Put yourself in the following situation: you hear a knock on the door and open to find the police requesting to search your home for a robbery suspect. Your spouse consents and you refuse. The police then arrest you and take you from the scene. Can the police search after you have been hauled away in cuffs? According to the Supreme Court (and surprisingly) the answer is now yes … so long as the police were justified in removing you from the scene and did not do so solely […]

In my 46 years of practice in the litigation area, I have prepared literally hundreds of witnesses, usually my clients, to be deposed. Among the myriad admonitions I give to such witnesses in preparing them for their depositions is the following: “Listen to the questions, make sure you understand the questions, and then answer only the questions that are asked; do not volunteer information.” To drive home this instruction, I frequently use the following illustration: “I meet you on the street and, being acquainted with you, ask you where you are going. You answer that you are going downtown, to […]

E-Discovery has been a hot legal topic over last several years, and it has impacted most all areas of the law. For the non-lawyers out there, discovery is the exchange of information during litigation, and it has changed drastically because the way we (as a society) keep information has changed. Our important information used to be all on paper, but now it is primarily digital. And, so, we have e-discovery, which is more complicated than just sending the lawyer on the other side a box of documents. Now, we need to be able to understand all of the places where […]

The digital revolution has ushered us into the information age. On a daily basis, we entrust our personal information, from the mundane to the highly sensitive, to a variety of recipients. For the most part, this free flow of information adds to our quality of life. Check-out lines are effortless; rarely do we even have to sign. We can enroll in a yoga class, deposit a check, and pay our utility bill, all from our smart phone. This free flow of information comes with an expectation that those who receive our information will safeguard the privacy and security of the […]

Rule 37(e) of the Federal Rules of Civil Procedure advises courts not to impose sanctions on a party for failing to provide (in discovery) electronically stored information (ESI) that was lost as a result of the routine, good-faith operation of an electronic information system. This “safe harbor” provision allows companies and individuals to delete their electronic information on a routine basis, but this provision only applies when a duty to preserve the information has not been triggered. In other words, if there is a duty to preserve the ESI, then you must stop any routine deletion procedures. Consequently, if a […]