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September 2015 Archives

Offering Testimony By Videoconference in International Arbitration

Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.

"Divorce Selfie" Explosion Bucks Trend of Damaging Use of Social Media in Family Law Cases

With the explosion of social media over the last decade, evidence from Facebook, Twitter, MySpace, and Instagram is now routinely used in divorce cases, shedding light upon critical factors such as a party's spending habits, irresponsible behavior, or failure to make a good faith effort to find a job.  More often than not, an avid social media presence is considered a risk to a divorcing litigant, as anything a party posts online can usually be retrieved and used against him or her in a potentially damaging manner.  As a result, divorce attorneys typically advise their clients to refrain from social media altogether during a contested family law proceeding. 

Massachusetts Appeals Court Holds Operators of Commercial Campground Established Right to Un-Enclosed Land Through Adverse Possession

Under the doctrine of adverse possession, an individual, business, or group of individuals who have continuously used land owned by someone else for twenty years can make a claim that such use entitles the claimant to ownership of the property. To prevail on a claim of adverse possession, a claimant must prove (1) he or she used the disputed property or portion of a property without permission, (2) that the use was actual, (3) open, (4) notorious, (5) exclusive, and (6) adverse for a period of at least twenty years. Lawrence v. Concord, 439 Mass. 416, 421 (2003). 

Version 2.0 of Rule 37(e): Rebooting the Framework For Evaluating Sanctions Under the Federal Rules

By its nature, Electronically stored information ("ESI") has a tendency to become voluminous and can had a profound impact on the cost of litigation and the issues and obligations faced by litigants.  Federal Rule of Civil Procedure 37(e) is intended to provide a safe harbor from sanctions for the loss of ESI resulting from "the routine, good-faith operation of an electronic information system."  Since the rule was put in place in 2006, courts have applied very different analytical frameworks and standards when considering requests for sanctions for lost ESI.  Because of the problems created by the inconsistency and uncertainty of the rule's application, including concerns that parties would be held to a standard that required the over-preservation of ESI, the old rule has been scrapped and a revised version of Rule 37(e) goes into effect on December 1, 2015.

Tenth Circuit Upholds Refusal to Stay Court Proceedings due to Arbitration Default

The Tenth Circuit Court of Appeals recently affirmed a district court's decision to lift the stay in federal proceedings due to the arbitrator's decision to terminate proceedings based on a party's failure to pay the arbitration fees. It reached this decision by concluding it had proper jurisdiction to hear the appeal and that the district court had reached the correct decision on the merits - that the employee was in default of his obligation to pay the arbitrator's fees and that the proceedings were properly terminated.

Financial Stress and Divorce

Financial stress is often cited as a leading cause of divorce. Financial stress can have an extreme impact on a relationship. It can eventually wear away at the love and affection that one has for another because of how consuming the issue can be in someone's life - exhausting someone emotionally and depleting their personal resources to continue to work hard at being in a healthy committed relationship. Of course, financial stress is usually not the only cause for the breakdown in a marital relationship, but it can have an impact on more aspects of a couple's life than just their finances.   

Partitioning Real Estate Owned By A Trust

Trustees sometimes face beneficiaries disagreeing about how to maintain real estate owned by a trust, such as a family vacation home.  But does a trustee have standing to bring a partition action to sell Massachusetts real estate?  Likely not.  

Section 35A Imposes No Time Limit on Completion of Foreclosures

The statute providing borrowers with a right to cure mortgage payment defaults before acceleration and foreclosure can occur imposes no deadline on completion of foreclosure proceedings once commenced, according to two very recent Massachusetts decisions.

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