A recent decision by Judge Novak in a securities case provides some helpful reminders on expert witness practice, particularly in commercial litigation, in the EDVA.
Trial Practice
First Amendment Presumption of Access to Summary Judgment Filings Attaches Upon Filing
By LA Kuykendall on
The Fourth Circuit has clarified the standard for evaluating a nonparty’s attempt to access sealed summary judgment filings under the First Amendment. In United States ex rel. Oberg v. Nelnet, Inc., — F.4th –, No. 23-1808, 2024 U.S. App. LEXIS 14786 (4th Cir. June 18, 2024) (Op.), the Fourth Circuit examined a nonparty’s ability to obtain documents filed under seal in connection with dispositive summary judgment motions. The Fourth Circuit concluded that “irrespective of whether a district court ever resolves a summary judgment motion, the public has a presumptive First Amendment right to access documents submitted in connection with it.” Op. at 18. But, the presumption is not insurmountable. Id.at 14 n.8. Parties seeking to maintain under seal documents filed in connection with summary judgment motions must show that continued sealing is necessitated by a compelling government interest, narrowly tailored to serve that interest. That the district court never ruled on the summary judgment motions or did not rely on the sealed material in resolving the motion is insufficient to overcome the First Amendment access presumption.
EDVA Judge Allows Pension Investment Expert to Testify in Class Action ERISA Case
By Dabney J. Carr on
A recent decision by Senior District Judge Robert Payne on a Daubert motion in class action litigation against a pension fund offers some helpful lessons on challenging expert witnesses in the EDVA. Trauernicht v. Genworth Fin., Inc., Civil Action No. 3:22-cv-532, 2024 U.S. Dist. LEXIS 95739 (E.D.Va. May 29, 2024).
EDVA Dismisses Challenge to Virginia Statute on Broadband Access
Litigation challenging government economic regulation has become more common, as courts appear increasingly less deferential to legislative and executive action. Most of this type of litigation focuses on federal regulation, but states have also taken a more active role in business regulation, prompting more frequent challenges to state laws in federal courts.
EDVA Permits Plaintiff to Use Her Deposition as Trial Testimony
By Dabney J. Carr on
It is not uncommon in litigation for parties to introduce testimony through depositions taken for use at trial. It is very uncommon, though, for a party to request to use their own deposition testimony as their trial testimony, rather than appearing as a live witness. A recent decision by EDVA Judge David Novak granting such a request illustrates the flexibility of the rules governing the use of deposition testimony at trial as well as the considerations counsel must consider when planning to offer deposition testimony at trial. Glass v. Metro. Wash. Airport Auth., Civil Action No. 1:23cv1449 (DJN), 2024 U.S.Dist. LEXIS 66062 (E.D.Va. April 10, 2024).