New York’s appellate departments are now unified with respect to their interpretation of Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). The issue of whether Article 10(a) of the Hague Convention permits service of process by mail to a foreign country in the absence of an objection from the state of destination has now been resolved in New York. The First Department in Mutual Benefits Offshore Fund v. Zeltser, 2016 N.Y. Slip Op. 04344, earlier this year reversed itself and joined the state’s three other appellate departments in holding that service of process by mail under those circumstances was indeed permissible.

Background
For those unfamiliar with the workings of the Hague Service Convention, it is a multilateral international treaty first adopted in 1965 that allows for the service of process of legal documents from one signatory state to another without the use of more formal consular or diplomatic channels. The treaty sets up a simplified means for accomplishing service of process by requiring each signatory nation to designate a “Central Authority” to receive the documents and arrange for actual service on the targeted entity in a manner permitted under local law. Once service is completed, the Central Authority sends proof of service to the requesting party. The advantages of this system lie in its speed, its standardized forms and its relatively low costs as compared with the pre−Hague Convention methods in place to serve foreign entities. Seventy countries are now parties to the agreement. Continue Reading New York Appellate Courts Now Unified on Hague’s “Send versus Serve” Issue

In this second collaborative blog post with the Australia-based law firm DibbsBarker, we take a look at the litigation process for product liability claims in Australia and how in some ways it differs from the process in the United States.

As detailed in the previous blog post, “Dealing with Product Liability Down Under,” there are a number of product liability causes of actions that arise in Australian product liability lawsuits. Those are negligence, breach of contract and failure to comply with the Australian Consumer Law legislation.

Civil litigation in Australia for personal injury cases can be conducted as pre-litigation (e.g., pre-court proceedings), which can result in litigation if the claim is not resolved during the pre-court process. In other jurisdictions, cases only originate by way a of litigated claim. Continue Reading Defending against Product Liability Down Under

Businessman fallingThe inadvertent disclosure of privileged material may haunt a company for years, particularly in today’s era of pattern litigation and increased collaboration within the plaintiffs’ bar. Fortunately, in matters pending in federal court, this consequence can be avoided through the use of Federal Rule of Evidence (FRE) 502(d).

The attorney-client privilege is arguably “the most sacred of all legally recognized privileges.” United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997). As explained by the Supreme Court, “[i]ts purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. ”Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Naturally, the importance of preserving privilege and avoiding waiver cannot be overstated. This is particularly true in the context of product liability litigation where certain documents may be repeatedly placed at issue across numerous lawsuits involving the same product model.

Continue Reading FRE 502(d) – An Underutilized “Safety Net” in Document Intensive Litigation

Australia_MapUp to now, we have written about many different topics on this site that focus on how product liability issues are litigated in the United States. Through a collaborative effort with our friends at the Australia-based law firm DibbsBarker, we offer the first in a series of blog posts and articles about product liability and the management of litigation in Australia and how it differs from the way things are done in the United States.

A person who suffers injury or property damage from a product has the right to sue the manufacturer, designer or seller of that product, similar to the right of an injured party in the United States. While the Australian legal system shares many similarities with the U.S. legal system, the way in which product liability claims are resolved in Australia, in some respects, is very different from how product liability cases are handled in the U.S. courts. Continue Reading Dealing with Product Liability Down Under

gavel-supremeCourt-lawbooks139876297TSOn November 19, 2014, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex, Inc., No. 7 MAP 2013, a case closely followed by the Product Liability Bar in Pennsylvania. The Supreme Court’s decision was expected by many to resolve a lingering conflict in Pennsylvania product liability law. Of my many posts concerning the court’s decision, most have not addressed the net effect this decision will have on how product liability cases are litigated in Pennsylvania in the future, mostly because the Tincher decision gives precious little insight in this regard.

Tincher arose out of a residential fire that began when lightning struck the property. The Tinchers claimed that the corrugated stainless steel tubing (CSST), which was part of the home’s gas supply system, was designed defectively and the source of the fire. The plaintiffs and their subrogating insurer brought claims sounding in negligence and strict liability against Omega Flex Inc., the manufacturer of the CSST, in the Court of Common Pleas of Chester County, PA. Both claims centered on the plaintiff’s main allegation that the flexible CSST lacked sufficient thickness.

Continue Reading Pennsylvania Product Liability Law Still Smoking after Reversal of Tincher