Anticipation of Litigation Advisor

Modification of Common Law Contract Interpretation in Breach of Contract Actions by Contractual Default Provisions

June 5, 2019

In a typical breach of contract action, the party asserting breach must prove: 1) the existence of a contract, 2) the existence and nature of the breaching party’s breach, and 3) damages. While seemingly straight-forward, proving a breach can be a tough burden to bear. Further, not every breach entitles the non-breaching party to a remedy. As set forth below, contractual default provisions can…

Lenders Beware -- Liens Don't Float In Bankruptcy, But Are Frozen on the Petition Date

June 5, 2019

Introduction. 

 This article examines the effect on “floating liens” that results when a borrower seeks bankruptcy protection under Title 11 of the United States Code (the “Bankruptcy Code”).  Because the “floating” nature of a floating lien terminates on the date the borrower files a bankruptcy petition, this article includes a general discussion of strategies available to a lender to protect its…

Anticipation of Litigation Advisor

June 5, 2019

Lenders Beware -- Liens Don’t Float in Bankruptcy, But Are Frozen on the Petition Date:

This article examines the effect on “floating liens” that results when a borrower seeks bankruptcy protection under Title 11 of the United States Code (the “Bankruptcy Code”). Because the “floating” nature of a floating lien terminates on the date the borrower files a bankruptcy petition, this article includes…

Jackson Kelly PLLC Blog: Anticipation of Litigation Advisor

April 23, 2019

WHOSE DATA IS IT ANYWAY?
MAKING SURE YOUR CLOUD STORAGE SERVICE
IS LITIGATION READY

In a typical computer network diagram, when a network path leaves the physical premises and goes into the internet, the internet is depicted as a cloud.  This is because it is impossible to map all data traffic that leaves a private network or computer to be handled by an internet service provider. Once…

WHOSE DATA IS IT ANYWAY? MAKING SURE YOUR CLOUD STORAGE SERVICE IS LITIGATION READY

April 23, 2019

In a typical computer network diagram, when a network path leaves the physical premises and goes into the internet, the internet is depicted as a cloud.  This is because it is impossible to map all data traffic that leaves a private network or computer to be handled by an internet service provider.  Once that data is in the internet “cloud,” it has innumerable possible destinations and paths.  For…

<em> IN RE ESTATE OF HORTON</em>: A CASE STUDY IN THE ANTICIPATED ACCEPTANCE OF ELECTRONIC WILLS AND ASSOCIATED LITIGATION

April 23, 2019

Technology is rapidly revolutionizing the way lawyers engage in discovery, analyze data, and formulate case strategy.[i] While the practice of law is quickly evolving to keep pace with an ever-shifting technological landscape, the law itself is often slower to adapt. One shift that seems inevitable, although potentially fraught with danger, is the use of electronic wills. Electronic wills are not…

Sharing Is Caring (Until It's Not): Proper Use Of File-Sharing Sites

March 25, 2019

Today, people share information constantly.  E-mail is the most popular means of sharing information in a professional setting, but many businesses and law firms also use “share sites” to send and receive files, particularly large files.  Law firms often need share sites to collaborate with others on document-intensive projects like transactions or document productions.  Law firms spend significant…

Even Private Facebook Posts Can Come Back to Haunt You: Discoverability of Private Facebook Profiles

March 25, 2019

It’s no surprise that Facebook is king of social media.  Facebook has—as of December 2018—1.52 billion daily active users and 2.32 billion monthly active users.[1]  Twitter, by way of comparison, has 126 million daily active users,[2] and Instagram has around 500 million.[3]  Users post fifty-five million Facebook status updates each day.  Given Facebook’s massive presence in our daily lives, it’s no…

Jackson Kelly PLLC Blog: Anticipation of Litigation Advisor

March 25, 2019

Even Private Facebook Posts Can Come Back to Haunt You:
Discoverability of Private Facebook Profiles

It’s no surprise that Facebook is king of social media.  Facebook has—as of December 2018—1.52 billion daily active users and 2.32 billion monthly active users.[1]  Twitter, by way of comparison, has 126 million daily active users,[2] and Instagram has around 500 million.[3]  Users post…

Jackson Kelly PLLC Blog: Anticipation of Litigation Advisor

February 18, 2019

Can’t We Just Produce in PDF?

There it is:  The fallback position, usually expressed with exasperation.  "Because I don’t understand the words they use in e-discovery.  And I have heard that e-discovery is expensive.  And we all understand how to use PDF."  (Click Here to Read More)

Protect Yourself from Your Protective Order
 

Every litigator has a standard Agreed Protective Order or…

CAN'T WE JUST PRODUCE IN PDF?

February 18, 2019

There it is:  The fallback position, usually expressed with exasperation.  “Because I don’t understand the words they use in e-discovery.  And I have heard that e-discovery is expensive.  And we all understand how to use PDF.” 

Producing emails and other electronically stored information in portable document format (PDF) is certainly permissible if the parties agree to it.  Though printing each…

PROTECT YOURSELF FROM YOUR PROTECTIVE ORDER

February 18, 2019

Every litigator has a standard Agreed Protective Order or Confidentiality Agreement they turn to when it comes time to exchange written discovery and documents.  You try to remember the last case you used it in, find it in your document database, change the caption, and voila!, you are ready to go.  If you are like most, you may have followed that same practice many times over, which means that…