Most large businesses are honest and attempt to treat customers fairly, particularly at a time when negative press can travel at Internet speed. There are, however, those companies that profit by cheating a massive number of customers out of small amounts of money. That can add up. The class action lawsuit has been a classic remedy that permits cheated consumers to band together in a single lawsuit. But recent legislation and restrictive judicial decisions have reduced its effectiveness. There is, however, new hope for the rooked consumer in the form of a mixture of an old concept with some new media. It’s called: “Offensive Collateral Estoppel.”
On a massive international scale, electronically stored information (universally labeled “ESI”) has been replacing paper at an exponential rate. To the delight of tree lovers, but the dismay of document producing litigants, our once-simple, paper based discovery process has now become an electronic nightmare. Referring to discovery as “simple” might be an overstatement; admittedly, pre-ESI paper production was no picnic. Depending upon the size and nature of the litigation, it could have involved hundreds of man-hours of sorting, Bates-stamping and photocopying, not to mention physical transportation. Nevertheless, as time consuming as the paper chase may have been, it pales in comparison to the man-years required to examine, analyze and select documents from a small jump drive of ESI, now capable of holding several gigabytes.
Rule 45 of the Federal Rules of Civil Procedure, is the lynchpin for compelling third-party witness and non-party cooperation for deposition testimony, document production and trial appearance. Changes, effective as of December 1, 2013 are designed to simplify the subpoena process. Most notably, subpoenas will issue directly from the single court in which the action is pending and be servable anywhere in the United States. The changes were approved by the U.S. Supreme Court in April of 2013 and transmitted to Congress. If Congress does nothing (always the expected scenario) to reject, modify, or defer them, the changes will become official. Rule 45 has been amended many times, even as recently as 2007, but the new changes are the most significant in decades. More >>>
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