The COVID-19 pandemic has even caused certain federal judges to temporarily supplement their individual rules to permit all depositions to be taken by remote means, including telephone and videoconference (see Judge Lewis J. Liman’s COVID-19 Emergency Individual Practices in Civil and Criminal Cases). The rule also provides that “[f]or avoidance of doubt, a deposition will be deemed to have been conducted “before” an officer so long as that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants” (see id.).Rule 30(b)(5) states that, unless the parties stipulate otherwise, the “deposition must be conducted before an officer appointed or designated under FRCP 28 (Nowlin v Lusk, 2014 WL 298155, at *5 [WD NY Jan. 28, 2014]). Under FRCP 28, the deposition must be taken before either: 1) an officer authorized by federal law or by the law in the place of examination to administer oaths; or 2) a person appointed by the court where the action is pending.

sition, sought the transcript so he could provide it to his expert for his review. In so doing, he posited that the court reporter “had no standing or authority to interpret the rule on when a deposition is completed.” The court reporter, who had been steadfast in refusing to provide the transcript as the attorney was not in compliance with the requirements of the rule, did not reply to the attorney’s motion.In his opinion, in Cypress Property v. Jallad & R. Investments, LLC, 2023 WL 3021075 (N.D. Tex. April 20, 2023), United States Magistrate Judge David L. Horan determined that the rule provides no official words by which to end a deposition and thusly, the court reporter’s declaration that “we are off the record at 3:36 p.m.” was sufficient to officially conclude the deposition.First, as a tacit admonishment to defense counsel for his assertion that the court reporter did not have authority to end the deposition, Judge Horan provided authority for the unique role of court reporters:Federal Rule of Civil Procedure 28(a) provides, as to “Persons Before Whom Depositions May Be Taken”:(a) Within the United States.(1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:(A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or(B) a person appointed by the court where the action is pending to administer oaths and take testimony.(2) Definition of “Officer.” The term “officer” in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).Then Judge Horan analyzed the procedure of ending a deposition.Federal Rule of Civil Procedure 30(b)(5), 30(e), and 30(f) state:(b) Notice of the Deposition; Other Formal Requirements.(5) Officer’s Duties.(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The o

waivers, excluding customers whose agreements did not include such a waiver. The Court of Appeals declined to address Marriott’s argument that this exclusion created an ascertainability problem, noting that the district court had reserved the ascertainability issue for later consideration, if required. In this regard, the opinion indicates that the parties in the trial court tried several “bellwether cases” prior to class certification, which is an unusual procedure, and that Marriott did not raise the “class-waiver” defense in any of these cases. The district court’s opinion implies that Marriott may have “waived the waiver argument” by not advancing it sooner. Ironically, if the district court concludes that the class-action waiver is not enforceable, Marriott’s appeal may well result in certification of a much larger class including all potential claimants.The Fourth Circuit also declined to address when and under what circumstances a district court may certify an issue class under Fed. R. Civ. P. 28(c)(4). The Court of Appeals noted that, by definition, narrowing the issues sufficiently will, as a practical matter, eliminate the usual barriers (e.g., commonality, typicality, manageability) to class certification. The appellate court noted that it was appropriate for district courts to weigh the efficiencies associated with the certification of issue classes against the challenges and inefficiencies of proceeding to separate trials on issues related to causation, affirmative defenses and damages. Otherwise, the Fourth Circuit declined Accenture’s invitation to hold that, even had the district court certified damages classes against Marriott on remand, issue-class proceedings against Accenture would be improper.Finally, the waiver at issue is interesting. Class-action waivers are often included in arbitration provisions and are enforceable after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011). The waiver at issue, which is included in the record

The US Court of Appeals for the Federal Circuit, on petition for writ of mandamus, vacated the district court’s transfer order and remanded the transfer to be considered under the clarified parameters of Fed. R. Civ. P. 4(k)(2) and 28 U.S.C. § 1404. In re: Stingray IP Solutions, LLC, Case No. 2023-102 (Fed. Cir. Jan. 9, 2023) (Lourie, Taranto, Stark, JJ.)Stingray filed patent infringement suits in the US District Court for the Eastern District of Texas against TP-Link, a company headquartered and organized in China. TP-Link moved to transfer to the Central District of California (CDCA) under 28 U.S.C. § 1406 citing an alleged lack of personal jurisdiction that Rule 4(k)(2) did not cure because TP-Link would be amenable to suit in the CDCA. TP-Link also moved for transfer under 28 U.S.C. § 1404(a). The district court granted the motion to transfer under § 1406 based on the rationale that TP-Link was amenable to suit in the CDCA and relying on affirmative reservations made by TP-Link that the CDCA had proper jurisdiction and venue. The district court denied TP-Link’s § 1404(a) motion as moot following the transfer. Stingray filed a mandamus petition asking the Federal Circuit to determine whether TP-Link’s unilateral

n the absence of a challenge from any party.”The Fourth Circuit’s recent decision in Capps v. Newmark S. Region, LLC shows what can happen when this lesson goes unheeded. There, Timothy Capps brought suit against Newmark Southern Region, LLC, in the United States District Court for the Eastern District of North Carolina, alleging eight state-law claims. Newmark counterclaimed, alleging breach of contract. Both parties relied on diversity jurisdiction. And both cited Newmark’s principal place of business and State of incorporation for support. After briefing motions to dismiss at the pleading stage and engaging in extensive discovery, the parties proceeded to a bench trial. The district court rendered judgment for Newmark.Capps appealed. At oral argument, which took place more than four years after the suit began, the Fourth Circuit for the first time in the litigation, questioned whether the parties were completely diverse. The Court subsequently ordered Newmark to file a letter under Federal Rule of Civil Procedure 28(j) stating the LLC’s membership and citizenship. Newmark complied and, in doing so, determined that Capps and one of its “great-grandparent entit[ies]” were citizens of the same State. Capps moved for vacatur of judgment and remand for dismissal, arguing that the conceded lack of complete diversity that existed at the time of filing meant the federal courts lacked subject-matter jurisdiction over the suit. The Fourth Circuit agreed.Emphasizing the need to “trace Newmark’s citizenship through [the] layered entities” that made up its corporate family, the Court observed that the overlap in citizenship demonstrated that “complete diversity did not exist between the[] [parties] at the time of filing,” meaning the district court lacked subject-matter over the claims.Among its arguments against granting Capps’s motion, Newmark contended that the Court should “forgive the jurisdictional defect . . . in the interest of ‘finality, efficiency, and economy,’ given that [the] matter proceeded to jud

56(h)(3) Video operator. The operator(s) of the videotape recording equipment shall be subject to the provisions of Federal Rule of Civil Procedure 28(c). At the commencement of the deposition the operator(s) shall swear or affirm to record the proceedings fairly and accurately.

Degree of ProofA minority of courts have written that a trade secrets misappropriation defendant seeking attorneys’ fees must support the objective and subjective factors with "clear and convincing" evidence. In making the determination as to the applicable degree of proof, courts have considered whether an enhanced quantum is required for a fee-shifting decree in cases brought under such statutes and rules as a jurisdiction’s Insurance Code relating to an insurer’s bad faith refusal to defend or settle; Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. ¶1927, or state counterparts; or 35 U.S.C. §285 concerning permissive attorneys’ fees awards to the prevailing party in "exceptional" patent infringement litigation.3. Prevailing PartyA trade secrets misappropriation defendant obviously would be the "prevailing party" after the entry of a final, non-appealable judgment dismissing all contested claims. But does the defendant qualify for an award of attorneys’ fees if, say, after lengthy pretrial proceedings but before trial, the plaintiff voluntarily dismisses most of a misappropriation complaint without receiving any consideration? After a trial the court or jury awards the plaintiff only a nominal sum despite a demand for an exorbitant amount?