Constructive Fraud/Fiduciary Duty: Ray's claim for constructive fraud depended on Kingsdown owing her a fiduciary duty, because the existence of a fiduciary relationship is an element of a constructive fraud claim. Ray's counsel argued that since Ray was an officer of Kingsdown, and thus owed the corporation a fiduciary duty, that the corporation therefore owed her a reciprocal fiduciary duty. Judge Bledsoe rejected this argument in a footnote, stating that this was "simply not the law." Op. ¶42 & n.9. … [Read more...] about North Carolina Business Court On A Barely Ever Referenced Rule Of Civil Procedure And A Host Of Employment-Related Claims
Federal rules of civil procedures
North Carolina attorney sanctioned for failing to disclose umbrella policyLast December, the United States District Court for the Western District of North Carolina sanctioned an insurance defense lawyer with a $1,000 sanction because the Court found that she failed to properly discuss and review the applicable insurance her client had for a claim. Further inquiry would have revealed a $10 million umbrella policy above the first $1 million layer of commercial general liability insurance. Palacino v. Beech Mountain Resort, Inc., 2015 WL 8731779 (W.D.N.C., Dec. 11, 2015). … [Read more...] about Sanctions for Failing to Investigate Insurance under Federal Rule 26
In its decision, the Eighth Circuit acknowledged that in interpreting Rule 8’s pleading standard, courts must not “ignore the significant costs of discovery in complex litigation and the attendant waste and expense that can be inflicted upon innocent parties by meritless claims.” However, the court further emphasized that in applying Rule 8, courts must be “attendant to ERISA’s remedial purpose and evident intent to prevent through private civil litigation ‘misuse and mismanagement of plan assets.’" Moreover, the court recognized that ERISA plaintiffs often (and perhaps most of the time) lack important information necessary to plead their claims in detail. Accordingly, the court essentially held that the intent behind ERISA requires courts to interpret Rule 8 loosely for ERISA plaintiffs: … [Read more...] about Federal Courts Adopt a Liberal Pleading Standard for Erisa Plaintiffs Under Federal Rule of Civil Procedure 8
1.340 (Interrogatories to Parties) and 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes): The Rules now authorize production of ESI under a party’s option to produce business records, in the “form or forms in which they are ordinarily maintained or in a reasonably usable form or forms” (Fla. R. Civ. P. 1.340(c)) and provide a procedure for determining the form of ESI to be produced (Fla. R. Civ. P. 1.350(b)).1.380 (Failure to Make Discovery and Sanctions): A new subsection (e) explicitly bars a court – “absent exceptional circumstances” – from imposing sanctions on a party for failure to provide ESI that was lost as the result of the “routine, good faith operation of an electronic information system.” The Committee Notes emphasize the “good faith” language, which aims to prevent knowing or reckless destruction. See also Petition of the Fla. Civ. P. R. … [Read more...] about eDiscovery Alert: New Amendments to the Florida Rules of Civil Procedure
Great-West is a good example of how FRE 502(d) orders can protect against the possible adverse effects of the disclosure of privileged information, even when the party to whom it was disclosed later seeks to get out of the agreement. In Great-West, the party who received the privileged documents brought a motion asserting that the production effected a waiver of privilege. In its argument it sought to convince the court to interpret the FRE 502(d) agreement as a general non-waiver provision written to express the parties’ intent not to subject themselves to strict waiver. Id at 30. In other words, the receiving party argued that the waiver agreement simply incorporated the protection of FRE 502(b), and so the court should undertake a reasonableness determination. Id. The disclosing party argued that if that was the intent, no agreement was needed because FRE 502(b) applies to all federal cases. Therefore, it argued, the … [Read more...] about Protect Your Privilege With Federal Rule of Evidence (FRE) 502(d): Lessons From Great-West Life & Annuity Ins. Co. v. Am. Econ. Ins. Co.