Ask and You Shall Receive: Rule 36 and its Scope Under Indiana Law

by Jon Noyes (Attorney Profile)
Wilson Kehoe Winingham LLC
2859 N. Meridian St.
Indianapolis, IN 46208
(317) 920-6400
wkw.com


A litigator is representing a client in a personal injury case where the client has suffered significant injuries. Although the litigator has strong evidence that the client was injured, the damage award could vary by a wide margin. The litigator would like to narrow the lower margin without sacrificing the higher margin, but is not sure how to do so. An interrogatory asking the defendant to place a value on the client’s damages would certainly be objected to. Nor would the defendant’s deposition prove fruitful because the defendant cannot be expected to accurately value the plaintiff’s claim on the spot. Rather, the litigator may find the solution through requests for admissions.

Requests for admission are a powerful but underutilized discovery tool that allow attorneys to ask an opposing party to admit any matter relevant to the case and not protected by privilege. [1]. Unlike the Federal Rules, Indiana does not limit these matters to enumerated categories. [2]. Instead, all non-privileged, relevant matters are proper, including “an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.” [3].  This allows attorneys to significantly clarify their adversaries’ contentions and gain the upper hand at trial. (more…)

Suddenly, Employers are Exposed to Large Jury Verdicts for their Employees’ HIPAA Violations

Hannah Kaufman Joseph (Attorney Profile)
Marc A. Menkveld (Attorney Profile)
Katz & Korin, P.C.
334 N. Senate Avenue
Indianapolis, IN 46204
More info on the firm’s BlogFacebook, and Twitter


On November 14, 2014, the Indiana Court of Appeals upheld a $1.44 million jury verdict against Walgreen Company (“Walgreen”) for a pharmacist’s breach of privacy obligations. [1]. The opinion began, “[i]n this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend.” [2]. That brief summary of the case’s fact pattern provides the foundation of what ultimately led to a large jury verdict against Walgreen, derived solely from the acts of its employee.

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Attorneys’ Fee Awards in Patent Litigation – Emerging Trends

Andrew M. McCoy
Faegre Baker Daniels LLP
300 North Meridian Street, Suite 2700
Indianapolis, IN 46204
Attorney Profile


Section 285 of the Patent Act allows a prevailing party to recover attorneys’ fees in “exceptional” cases. [1]. In Octane Fitness, LLC v. Icon Health & Fitness, Inc.[2] and Highmark Inc. v. Allcare Health Management Systems, Inc.[3] the Supreme Court relaxed the requirements for proving an “exceptional” case in three significant ways: (1) now a party who files a section 285 motion need only prove that a case is “exceptional” by a preponderance of the evidence; [4] (2) the movant no longer has to prove bad faith and objective baselessness, [5] but instead must prove that, under the “totality of the circumstances,” [6] the case “stands out from others,” considering numerous factors, such as “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need . . . to advance considerations of compensation and deterrence;” [7] and (3) the appellate standard of review under section 285 is now a deferential abuse-of-discretion standard. [8].

Intellectual property litigators must be aware of these changes and also how various district courts are applying them. This article analyzes the dozens of cases that have applied Octane Fitness and Highmark, with a particular focus on district court opinions, [9] and identifies helpful trends and insights for patent litigators. (more…)

The Bitter End: Using POST to Encourage Pain Relief and Convey Patients’ End-of-Life Healthcare Wishes

Lori M. Craig
J.D. Candidate, 2014, Indiana University Robert H. McKinney School of Law
B.A. 1997, Indiana University – Bloomington, Bloomington, Indiana.
lori.m.craig@gmail.com

“’For Christ’s sake, let me die in peace!’ he said.
. . .
‘You know perfectly well you can do nothing to help me, so leave me alone.’
‘We can ease your suffering,’ said the doctor.
‘You can’t even do that; leave me alone.’
. . .
He drew in a breath, broke off in the middle of it, stretched himself out, and died.” [1]. (more…)

Attorney (In)Competence and Discipline

John P. Higgins, attorney
Indiana Supreme Court Disciplinary Commission
john.higgins@courts.in.gov

The Rules of Professional Conduct provide the baseline standards by which all lawyers must conduct themselves, both in their professional and (sometimes) personal lives. Violations of the Rules of Professional Conduct may serve as a basis for professional discipline, ranging anywhere from a private admonishment to permanent disbarment.

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A Dean’s Reflection: IU McKinney’s Education Model

Andrew Klein
Dean and Paul E. Beam Professor of Law
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 227H
530 W. New York Street
Indianapolis, IN 46202-3225
Faculty Profile Webpage
Twitter: @anrklein


Thanks to the editors of the Indiana Law Review for inviting my comments. I applaud your efforts to expand the journal’s scope and reach.

This post marks a personal anniversary of sorts. I have been dean of our school for a year, and it would be impossible to describe the experience in a short essay. But as a renowned philosopher once said, “We do not learn from experience . . . we learn from reflecting on experience.” [1]. So indulge me some brief reflections.  (more…)

Getting Social Media Into Evidence

by Michele Lorbieski Anderson
Managing Associate
Frost Brown Todd
201 North Illinois Street, Suite 1900
Indianapolis, IN 46244-0961
317-237-3216
manderson@fbtlaw.com
Attorney Profile Webpage


All of the social media sites and applications available today share one thing in common: the users provide the content.  As such, social media can be a good source of electronically stored information (“ESI”) about those users, most commonly in the form of pictures, statements, or videos.  The phrase “you can’t trust everything that you see on the internet” hints at the most obvious barriers to the admission of evidence from social media, which are authentication and hearsay. (more…)

Toxic Tort Symposium Details

Register Now at: http://mckinneylaw.iu.edu/events/current.cfm?eid=239

September 23, 2014 Symposium (Click Here for additional information)

LIABILITY, RIGHTS AND REMEDIES IN TOXIC TORTS:
Local, National and International Responses in the Age of Globalization

This Conference will address local, national and international responses to Toxic Torts via robust presentations and discussions.  The first panel, Toxic Torts Liability features four prominent speakers in the field.  They will examine the latest development in torts law in the United States and abroad.  The second panel, Environmental Justice Responses to Toxic Torts will focus on the various forms of responses from scholars and community organizations in addressing the impact of toxic torts. The third panel, Human Rights Responses to Toxic Torts will broaden the conference with discussion on various projects organized at various levels to address the international human rights dimension. (more…)