08
Nov

All documents filed in a court proceeding in the U.S. District Court for the Western District of Washington (and most places) are available to the public—unless filed under seal. In the Western District, a party can file a document under seal only: (a) where a statute, rule, or prior court order expressly authorizes it or (b) if the party filing the document under seal files a motion to seal (which the court may or may not grant) either before or ...

16
Aug

A previous post addressed the situation where individuals other than the deponent, court reporter, and counsel attend a deposition at the invitation of one party and without notice to the other side. In short, while the best practice is to provide advance notice to opposing counsel, there are no clear prohibitions. But that situation assumed that those invited to the deposition would be physically present, and thus their attendance known. With the increasing use of live-stream technology in depositions, ...

01
Mar

In any class-action settlement, the fate of unclaimed funds can be pivotal. For instance, with a common-fund settlement (with an agreed amount deposited into a common fund for distribution to class members), a significant portion of the fund may remain after distributions are made depending on how payments are calculated and distributed. And even with a “claims-made” settlement (with the amount paid equaling the sum of the claims filed), there will usually be some settlement checks that go ...

19
May

Preparing for and conducting or defending a deposition can be intense. Once the deposition is over, it’s easy to overlook what happens next. But understanding the procedures for reviewing and maintaining the transcript are essential to avoiding questions of authenticity when it’s time to use the deposition transcript as evidence. Agreeing to “the usual stipulations” without clearly defining them or being too casual about how a transcript is prepared, reviewed, and maintained could make otherwise helpful ...

11
Mar

There are necessary participants at every deposition—the deponent, court reporter, counsel—but who else might you encounter?  The answer may come as a surprise; in the absence of a protective order, there are no limitations on who can attend.[1] Federal Rule of Civil Procedure 26(c)(1)(E) places the burden on the party seeking to exclude people from the deposition to move for a protective order “designating the persons who may be present while the discovery is conducted.”[2]  To meet ...

11
Feb

Where individuals’ claims are so similar that they can be adjudicated through a single action, suit may be brought as a class action under CR 23.  Among other things, CR 23 has procedural safeguards designed to protect the interests both of unnamed class members who do not participate directly in the lawsuit and of defendants.  But a recent decision by the Washington Supreme Court in Riverview Community Group v. Spencer & Livingston[1] arguably undermines CR 23 by allowing ...

04
Nov

Last September, the Washington Court of Appeals held that the “economic reality” test is the proper method to determine whether an entity is a joint employer for purposes of imposing liability under Washington’s Minimum Wage Act (“MWA”).[1]   The Washington Supreme Court has now affirmed.  An earlier blog post about the Court of Appeals decision, Becerra v. Expert Janitorial, is available here.  Becerra involved allegations by a group of janitors that they were underpaid in violation of the ...

15
Apr

Recently, the Washington Court of Appeals was asked to decide whether the collective-bargaining statute for Washington State employees protects employees’ “concerted activities” from employer interference, restraint, or coercion.[1]  “Concerted activities” are those jointly undertaken by employees in an attempt to improve their working conditions.[2]  In this case of first impression, the court held that the concerted activities of Washington’s public employees are not protected. The case involved two emails sent by Department of Corrections officer Phyllis Cherry ...

03
Feb

The strategic, financial, and practical impact of being forced to litigate in an inconvenient forum make it crucial that parties are aware of and consider the implications of forum selection clauses in the contracts they sign.[1]  This can be easier said than done, however, particularly where the contact is multi-layered, with different forum-selection clauses being agreed to at different times, or where forum-selection clauses are buried in click-through agreements, which many parties never discuss or even read.  A ...

10
Oct

Addressing a question of first impression, the Washington Court of Appeals held last month that the “economic reality” test is the proper method to determine if an entity is a joint employer for purposes of imposing liability under Washington’s Minimum Wage Act (“MWA”).[1]  The case involved Fred Meyer’s use of a contractor for janitorial work at its retail stores.  Fred Meyer contracted with Expert Janitorial, who in turn contracted with All Janitorial, to provide janitors.  A number of ...