Category Archives

A Force Majeure Clause is not the Only Defense when COVID-19 Interferes with Performance

The impact of the novel coronavirus disease 2019 (COVID-19) has been felt across all industries.  Government-ordered shutdowns of non-essential work closed many businesses.  Those that continue (and perhaps even grow) nonetheless suffer from COVID-19 related disruptions.  As a result, many companies and individuals are struggling or unable to fulfill their contractual obligations. Lawyers have written extensively about the force ...

The impact of the novel coronavirus disease 2019 (COVID-19) has been felt across all industries.  Government-ordered shutdowns of non-essential work closed many businesses.  Those that continue (and perhaps even grow) ...

Think Before you Click: Good Email Habits to Help Keep Attorney-Client Communications Privileged

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. First, the purpose of the communication must be to seek or obtain legal advice.  Thus, for example, an email is not privileged merely because counsel is copied on an ...

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. ...

Using an Early Rule 68 Offer of Judgment to Put Your Opponent Between a Rock and a Hard Place

When used effectively, Rule 68 of the Federal Rules of Civil Procedure gives defendants a powerful and often underestimated tool.  Rule 68 allows “a party defending against a claim” to serve an offer of judgment with “the costs then accrued.”[1]  The offeree then has 14 days to accept the offer, or the offer is considered withdrawn.  If the offer ...

When used effectively, Rule 68 of the Federal Rules of Civil Procedure gives defendants a powerful and often underestimated tool.  Rule 68 allows “a party defending against a claim” to ...

To Seal or Not to Seal, What is a Party Opposing a Motion to Seal to Do?

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 ...

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 ...

If There is Anyone in This Room with Us, Make Yourself Known! The Obligation to Disclose the Presence of Individuals Attending a Deposition Virtually

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 ...

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 ...

Reconsidering Reverters: The Benefits of Reversionary Funds in Class-Action Settlements

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 ...

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 ...

Don’t Let That Good Testimony Go to Waste: Tips for Ensuring That Deposition Transcripts are Properly Maintained

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 ...

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 ...

Unexpected Guests: Who May Attend A Deposition?

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 ...

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, ...

The Standing of Nonprofits Formed for Litigation: Class Action Without the Class?

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 ...

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 ...

Washington Supreme Court Affirms Expansion of “Joint-Employer” Liability Under Wage-and-Hour Laws

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 ...

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 ...