The Library

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 […]

With the explosion of new handheld mobile devices such as the iPad, many employees want to use their devices in conjunction with their work. Many employers find this attractive; it reduces IT budgets and allows workers to use platforms with which they are familiar. For this reason, many employers allow employees to “Bring their Own Device,” or BYOD. The statistics demonstrate that BYOD is a growing trend. According to a recent study by Cisco, 78% of employees use their own device in connection with their work, and 70% of organizations allow employees to use their own devices. However, despite this […]

There is no question that wage and hour claims continue to be on the rise, and that collective actions, in particular, pose a significant legal and financial risk to employers. However, a recent unanimous decision by the U.S. Supreme Court will likely reduce the number of wage and hour claims filed, particularly against unionized employers who have certain provisions in their collective bargaining agreements. It has long been debated whether employees should be paid for time spent putting on and taking off protective gear (also referred to as “donning and doffing”). The high court has now given us some clarity […]

This article, written by Employment Law Partner Paul Klockenbrink, was written for Gentry Locke’s Virginia OSHA Law News blog at www.VaOSHALawNews.com. If you’re in the construction industry, you’ve already heard many ways in which your business needs protection through its agreements, policies, contracts, and implementing the right OSHA policies. Like any business, you want to stay in business. In addition to what you’ve already read on this blog, labor and employment issues always loom on the horizon threatening to drain your resources from all angles. Fortunately, my colleagues and I will be spending a whole day on these topics at our upcoming […]

As I was watching the Super Bowl last night, it occurred to me that defense matters. Just ask Peyton Manning. So, if you are a lawyer representing an owner or a general contractor who has been sued for a delay claim, then there are some ‘low-hanging fruit’ easy defenses that might apply to your case. A thorough Virginia construction lawyer should always check to see whether any of the following applies to their case: Lack of Proper Notice. The contractor or subcontractor failed to give timely notice of the delay claim as required by the contract or Virginia law. Although […]

When Congress passed amendments to the Americans with Disabilities Act in 2008 (“ADAAA”), it was reacting, in part, to a series of Supreme Court decisions. One of those decisions, Toyota Motors Manufacturing, Kentucky Inc. v. Williams (2002), adopted a strict construction of the term “disability,” and ruled that a “temporary impairment” could not qualify as a disability. Many lower courts applied Toyota Motors to mean that an impairment that did not last for more than 12 months did not qualify as a “disability.” In amending the ADA, Congress made clear it was overruling Toyota Motors and made it clear that […]