Kandis Kovalsky Archives — Page 2 of 2

Legal Intelligencer: When Noncompete Agreements Involve Competing Laws

November 8, 2018 | Edward T. Kang and Kandis Kovalsky

In the November 8, 2018 edition of The Legal Intelligencer, Edward T. Kang, Managing Member of Kang Haggerty and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “When Noncompete Agreements Involve Competing Laws.”

These days, it is common for companies headquartered or principally located in one city and state to have multiple offices and employees throughout many cities and states in the country, and even the world. Companies in this position will often require their employees to sign contracts with both forum selection clauses and choice of law provisions. The forum selected is usually where the company is headquartered or principally located. Likewise, the choice of law provision often calls for application of the laws of the forum state. Companies have a strong interest in uniformity and predictability when it comes to legal disputes. Litigating matters in different courts throughout the country under different laws is not something that is desirable or productive.

In situations where employers also make their employees, or certain employees, agree to restrictive covenants, particularly noncompetes, companies expect the same uniformity and predictability regarding their enforceability as to each employee, regardless of where the employee works or lives. Employees, on the other hand, often expect (as we learned through a recent case) that even with another state’s choice of law provision, they will still be afforded the protection of the laws of their own state. This disconnect is no clearer than where non-California headquartered companies hire California residents as employees and require them to sign noncompetes governed by another state’s law. In California, noncompete agreements are generally unenforceable (with some limited exceptions). This is well-known, particularly by California residents. So, what happens in this situation if the California employee violates their noncompete? Continue reading ›

Legal Intelligencer: Why Lawyers Should Care About Emojis

October 18, 2018 | Edward T. Kang and Kandis Kovalsky

In the October 18, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty and Kandis Kovalsky, Associate of Kang Haggerty, co-authored, “Why Lawyers Should Care About Emojis.“

Today, there are close to 3,000 emojis in the Unicode Standard. As such, people can communicate a lot more through emojis, if they choose. And, the data shows this is what people are choosing.

Although emojis have been included in smartphone operating systems for more than a decade, they are just starting to make their way into the world of litigation. While Apple’s emoji debut consisted of 54 emojis, made up primarily of different yellow smiley faces, iPhone now offers its users a broad range of hundreds of emojis, representative of different races, genders, cultures and religions. Today, there are close to 3,000 emojis in the Unicode Standard. As such, people can communicate a lot more through emojis, if they choose. And, the data shows this is what people are choosing. Over 10 billion emojis are sent each day throughout the world. Approximately 92 percent of all people who communicate online or through text messages on a smartphone use emojis, with more than one-third of them using emojis daily. Analysts have referred to the uptick in emoji use as “watching the birth of a new language.”

In 2015, emojis were mentioned in 14 federal and state court opinions. This number increased to 25 in 2016 and 33 in 2017. With the rules of the profession (Rules of Civil Procedure, Rules of Professional Conduct, Rules of Evidence) changing—slowly, albeit surely—to address the advent of social media and electronic communications, it is important to understand how emojis fit into the current legal landscape.

Legal Intelligencer: Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?

July 26, 2018 | Edward T. Kang and Kandis Kovalsky

In the July 26, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?”

While arbitration clauses are often a topic of concern in the consumer context, they can also be a major issue in sophisticated party transactions as well—the agreements where the arbitration clause is the least of everyone’s worries.

While arbitration clauses are often a topic of concern in the consumer context, they can also be a major issue in sophisticated party transactions as well—the agreements where the arbitration clause is the least of everyone’s worries. In these transactions, whether they be in the employment context or otherwise, arbitration clauses are often treated as a throwaway for which a simple copy-and-paste will do. At that forward-looking time, arbitration seems like a sensible method of dispute resolution between two like-minded people, and it is given little emphasis. When the relationships break down later, as they often do, arbitration clauses become a major issue. Too often, one side wants to be in court while the other does not. They argue whether their dispute is subject to arbitration.

Legal Intelligencer: Self-Authentication of ESI Under Federal Rule of Evidence 902

June 27, 2018 | Edward T. Kang and Kandis Kovalsky

In the June 21, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “Self-Authentication of ESI Under Federal Rule of Evidence 902.”

In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection.

In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection. As the judge wisely pointed out, this can be problematic as the lawyers owe a duty to the court to represent truthfully and accurately. If, for example, a client performed the data collection without proper supervision, the lawyer could not accurately represent that all responsive documents have been collected and produced. The 2015 amendments to Federal Rule of Civil Procedure 37 provide dire consequences for failing to preserve electronically stored information (ESI), including monetary sanctions, dismissal of a claim, judgment in favor of the prejudiced party, suppression of evidence and adverse inference instructions. The recent changes to Federal Rule of Evidence 902, which addresses self-authenticating evidence, and is routinely relied on by civil trial lawyers, raises additional concerns with clients performing their own data collection.

Self-authenticating evidence under Rule 902 is evidence that requires no extrinsic evidence to prove that it is what it purports to be. Common examples of self-authenticating evidence include newspapers, periodicals, signed and sealed public documents, and official publications. While the amendments to Rule 902 were created to address the unnecessary expense and inconvenience associated with having live testimony from multiple witnesses solely to authenticate electronic evidence, they also provide guidance on ESI collection and resolving authentication issues relating to ESI before trial.