Publications Archives

Admissibility of Expert Testimony in Nevada

Posted on September 9, 2014

By: Justin R. Taruc

Nevada's rule on the admissibility of expert witness testimony is codified in Nevada Revised Statute 50.275, which states that a qualified expert witness may testify as to matters within that expert's scope of knowledge, so long as such testimony will assist the trier of fact to understand the evidence or determine a fact in issue. While the Nevada Legislature laid the foundation to allow expert testimony to be presented and granted judges the discretion as to whether to allow such testimony, it was not until Hallmark v. Eldridge (2008) 124 Nev. 492, that the Nevada Supreme Court gave further clarification on the factors judges were to consider when admitting expert testimony evidence.

The California Supreme Court Adds Another Hurdle For Employees Seeking Class Certification

On May 29, 2014, the California Supreme Court issued its highly anticipated decision inDuran v. U.S. Bank Nat'l Assoc., (2014) 59 Cal.4th 1, making clear that before a court can certify a class action, it should require the plaintiff to have a trial plan addressing manageability of the class claims.

No Duty to Reasonably Accommodate Employees for Medical Marijuana Use

By: Kyle D. Kring and Grace Pak

The increased decriminalization of marijuana use raises questions of whether employers are required to reasonably accommodate employees who use it for medical reasons, and whether they can terminate the employee for failing a drug test. As prudent employers, it is always a good idea to contemplate how the change in law will affect the workplace. Although sixteen states have legalized medical marijuana, along with two states that legalized recreational use, marijuana is nonetheless an illegal drug under federal law. Consequently, employers are not required to accommodate the use of marijuana, especially during work hours or on the employer's property.

Design Professional Liability

By: Brendan J. Coughlin

The California Supreme Court has agreed to review a case greatly affecting construction defect litigation. All working contractors and subcontractors know how difficult it can be to force design professionals to be involved in construction litigation, even when their work is clearly at issue.

Breaking News: California Supreme Court Rules In Favor Of Employers in Regards to Class Action Waivers, But Not In Regards to PAGA Claims

Posted on July 10, 2014

By: Allyson K. Thompson

On June 23, 2014, the California Supreme Court issued a long awaited opinion in Iskanian v. CLS Transportation Los Angeles, LLC (2014 WL 2808963). Long awaited is an understatement, as the underlying case was filed in 2006. The issue of whether class action waivers in arbitration agreements are enforceable has been ruled on differently by several courts over the past several years, based on reliance on Gentry v. Superior Court (2007) 42 Cal.4th 443. In Gentry, the California Supreme Court previously ruled that class action waivers in arbitration agreements were unconscionable and against public policy, and were not preempted by the Federal Arbitration Act (FAA).

Defending Against Requests for Taking Depositions of Apex Witnesses

An "Apex Witness" is the person that sits at the highest level of a large organization, such as the Chairman of the Board, President of the Company, or Chief Executive Order. Most courts throughout the country recognize that deposition notices directed at an official at the apex of a company creates tremendous potential for abuse or harassment. Celerity, Inc. v. Ultra Cleaning Holding, Inc., 2007 WL 205067 (N.D. Cal. 2007). As such, it is prudent to file a Motion for Protective Order to prevent the deposition of the apex witness, especially when it is clear that there are other less intrusive means of obtaining the same discovery.

Privacy Rights and the Public Records Act

Competing interests of transparency in government and elected officials and government employees' right to privacy has stirred up a debate throughout California. A recent California appellate court ruled that government officials and employees' private communications sent on personal devices and not stored on public servers are not subject to the California Public Records Act (CPRA). City of San Jose v. Superior Court(2014) 169 Cal. Rptr.3d 840. This case addresses the important debate encompassing transparency in public agencies versus a public employee's right to privacy. The scope of this issue is evident as the California Supreme Court has recently decided to step in and settle the heated debate.

Evidence Preservation, Spoliation, and the Potential for Adverse Inferences

The Nevada Supreme Court has held that a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to an action, even where an action has not been commenced and there is only a potential for litigation. Fire Insurance Exchange v. Zenith Radio, Corp., 103 Nev. 648 (1987). In fact, sanctions under Nevada Rule of Civil Procedure 37(b) may be imposed for willful suppression or destruction of evidence which is clearly relevant, whether or not the party has been expressly ordered to produce the evidence. See Bass-Davis v. Davis, 122 Nev. 442 (2006). The entry of liability against a party destroying evidence is also an appropriate sanction under NRCP 37. Fire Insurance Exchange v. Zenith Radio, Corp., 103 Nev. at 648.

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