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Author Archives: Douglas R. Painter

Duty to Preserve Text Messages in Anticipation of Litigation

Under federal law, a party anticipating litigation has an affirmative obligation to preserve relevant documents and other tangible evidence.  With today’s prevalence of electronic data and devices, the scope of that duty as applied to electronically stored information (or “ESI”) is a frequently litigated issue and can give rise to sanctions if a party “fail[s] […]

Expert Retention and Summary Judgment

Summary judgment motions play an important role in business disputes; they can create settlement leverage, narrow trial issues or, if granted for an entire case, achieve a favorable judgment without a trial.  As its name suggests, a motion for summary judgment asks a court to “summarily” adjudicate a claim or lawsuit without the need for […]

Update: The Right to Cumis Counsel

A recurring issue in business litigation concerns when an insured may choose its own counsel in a dispute tendered to its insurer.  A recent California case clarifies the current criteria governing this issue.  St. Paul Mercury Insurance Company v. McMillin Homes Construction, Inc., 2016 WL 5464553, (S.D. Cal. Sept. 29, 2016). Under standard general liability […]