You're Invited to Attend (in Person)

• Author: Lindsay Sestile
• Pages: 16-17

Published in Litigation News Volume 45, Number 3, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

16 | SECTION OF LITIGATIO N

SIGHTINGS FROM TH E BLOGOSPHERE

POSTED& NOTED

You’re Invited to

Attend (in Person)

It’s 2020, and technology allows remote witness appearance

and discovery, right? Not so in the Eleventh Circuit, accord-

ing to Arbitration Nation’s Henry Allen Blair, who reviewed

the court’s decision in Managed Care Advisory Group, LLC

v. CIGNA Healthcare, Inc. The court found arbitrators are

limited in how they may subpoena nonparties and their

documents. Section 7 of the Federal Arbitration Act al-

lows an arbitrator to “summon in writing any person to at-

tend before them . . . as a witness and in a proper case to

bring with him . . . any book, record, document, or paper

which may be deemed material as evidence in the case.”

Interpreting this language narrowly, the court held: ( 1) arbitrators may only compel non-

parties to attend in-person hearings in the same room as the arbitrator (not by video

conference); and (2) arbitrators may not compel pre-hearing discovery from nonpar-

ties—their documents may be obtained only when they physically arrive at a hearing.

Calling the opinion radically anti-arbitration, Blair notes it could even mean arbitrators

lack authority to compel nonparties to produce any form of electronically stored infor-

mation (ESI), at least to the extent they cannot physically deliver ESI to a hearing.

http://bit.ly/LN452-pn1

No Unpaid Wages for Private Plaintis

Employers chalked u p a big win thanks to the California

Supreme Cour t’s decision in ZB, N. A. v. Superior Court.

Reporting on th e decision for Employment Law and

Litigation, Julia Rie chert, Stephanie Lee, and A nnie H.

Chen note the cour t resolved a split of authority over

whether an emp loyer may compel arbitr ation of an em-

ployee’s Private Attorneys Ge neral Act (PAGA) claim

seeking unpa id wages under California La bor Code sec-

tion 558. Th e court went a step fu rther and hel d section

558, which o utlines the civil penalties private pl aintis

may seek under PAGA, d oes not include as such penal -

ties the “amount su cient to recover underpaid wages .”

Because onl y the Labor Comm issioner may recover those

wages, PAGA plainti s do not have a private cause of

action for unpa id wages under section 558 an d may not

seek them in any for um. According to the bloggers, th is

decision redu ces potential PAGA exposure for em ployers.

http://bit.ly/LN452-pn2

Lindsay Sestile , Litigation News Associate Editor, moni tors the blogosphere.

Legal Blogging Is Par t of Being a Lawyer

Overworked lawye rs may struggle to see va lue in some

of their soft ma rketing, but accordi ng to Kevin O’Keefe

of LexBlog, legal bloggi ng is part and pa rcel of being a

lawyer. Widely def‌in ed as a “regularly updated website,

typically on e run by an individua l or small group, that

is written in an infor mal or conversational style,” blo gs

were originally c alled weblogs be cause their authors

were logging thei r reading from the internet with their

observation s and analysis of what th ey had read. O’Keefe

believes there is no b etter way than bloggi ng for lawyers

to share their thou ghts on what they read a nd observe in

their niche area s. Legal blogs enable pee rs, clients, a nd

potential client s to see lawyers’ obse rvations and analy-

ses, which hel ps establish the ir analytical s kills and ex-

pertise. Rath er than consider ing such content mar keti ng

as hard work, O’ Ke efe encourages lawyers to view lega l

blogging as pa rt of being a lawyer.

http://bit.ly/LN452-pn3

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