Duty Of Disclosure Research Articles

EDiscovery in New Zealand under the new amended rules

Judge David Harvey and Daniel B. Garrie set out the recent changes to the discovery rules in New Zealand, embodied in the High Court Amendment Rules (No 2) 2011, covering co-operation; proportionality; duties requiring the preservation of documents; duty of disclosure of documents; discovery checklist; and provisions for standard or tailored discovery Index words: electronic discovery; New Zealand High Court Rules; High Court Amendment Rules (No 2) 2011; new principles – co-operation, proportionality; new duties – preservation of documents, disclosure of documents

Patent Office Contested Proceedings and the Duty of Candor

The implementation of post-grant trial proceedings in the U.S. Patent and Trademark Office is one of the most significant aspects of the Leahy-Smith America Invents Act. Practitioners have a great deal of new subject matter to master, including the governing statutes and rules, and instructive Patent Trial and Appeal Board decisions. All of this new law is superimposed, however, on an existing legal landscape relating to the practitioner’s duty of candor and potential consequences for candor violations. Furthermore, the new law creates additional candor and disclosure obligations specifically applicable in post-grant contested proceedings.This paper discusses the “old” and “new” candor obligations of practitioners – their sources, their reach and applicability, and the potential consequences for their breach – in the context of the representation of clients in the new USPTO post grant contested proceedings. It identifies several examples of statements and conduct in post-grant proceedings that may particularly implicate the practitioner’s duties of candor and/or disclosure and, accordingly, warrant heightened care on the part of practitioners (registered and unregistered) and parties who participate in the new proceedings.

Adverse Selection vs Discrimination Risk with Genetic Testing: An Experimental Approach

We develop a theoretical analysis of two widely used regulations of genetic tests, disclosure duty and consent law, and we run several experiments in order to shed light on both the take-up rate of genetic testing and on the comparison of policy-holders’ welfare under the two regulations. Disclosure Duty forces individuals to reveal their test results to their insurers, exposing them to the risk of having to pay a large premium in case they are discovered to have a high probability of developing a disease (a discrimination risk). Differently, Consent Law allows them to hide this detrimental information, creating asymmetric information and adverse selection. We obtain that the take-up rate of the genetic test is low under Disclosure Duty, larger and increasing with adverse selection under Consent Law. Also, the fraction of individuals who are prefer Disclosure Duty to Consent Law increases with the amount of adverse selection under the latter. These results are obtained for exogenous values of adverse selection under Consent Law, and the repeated interactions experiment devised has not resulted in convergence towards an equilibrium level of adverse selection.

Adverse Selection vs Discrimination Risk with Genetic Testing. An Experimental Approach

We develop a theoretical analysis of two widely used regulations of genetic tests, disclosure duty and consent law, and we run several experiments in order to shed light on both the take-up rate of genetic testing and on the comparison of policyholders’ welfare under the two regulations. Disclosure Duty forces individuals to reveal their test results to their insurers, exposing them to the risk of having to pay a large premium in case they are discovered to have a high probability of developing a disease (a discrimination risk). Differently, Consent Law allows them to hide this detrimental information, creating asymmetric information and adverse selection. We obtain that the take-up rate of the genetic test is low under Disclosure Duty, larger and increasing with adverse selection under Consent Law. Also, the fraction of individuals who are prefer Disclosure Duty to Consent Law increases with the amount of adverse selection under the latter. These results are obtained for exogenous values of adverse selection under Consent Law, and the repeated interactions experiment devised has not resulted in convergence towards an equilibrium level of adverse selection.

아파트 허위∙과장 광고에 대한 수분양자의 법적 보호 방안

The purpose of this study is to search for the effective means to protect vendees from false or exaggerated advertisements of apartment. If vendees are damaged by believing false and exaggerated advertisements, they can invoke tort liability, default liability and mistake of motive. Ad should be responsible for their action such as illegal action responsibility. If vendees want to demand tort liability, the duty of disclosure about the contract would be required. If vendees want to insist default liability, apartment Ad must be gotten in the content of sale contract. Tort liability would be difficult to prove and default liability is hard to get in the contents of sale contract. Tort liability aims to cover the damage itself, but if default liability is acknowledged, vendees could be free from the restraint of the contract through the right of termination of contract and cancellation of the express. In terms of damage coverage, both are the same. we can insist the rights separetely or simultaneousl because tort liability and default liability exist independently, Tort liability aims to cover the damage itself, but if default liability is acknowledged, vendee can implement the right of termination of contract and cancellation of the express. To prevent the damage of vendees effectively from false or exaggerated advertisements, the subordinate negligence of the principle of good faith should be imposed to the real estate agency. It would be better that vendees could be set free from the restraint of contract.

The Development of the Prosecutor's Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice?

The proper role of the prosecutor, contrary to popular perception, is not that of a partisan persecutor bent on securing the conviction of an accused person but rather that of a quasi-judicial 'minister of justice' whose detached function is to seek justice and to ensure fairness. This view of the prosecutor's role can be traced back at least to the early 1800s and continues to command firm support in both Australia and England. In considering the development of the role of the prosecutor it is instructive to consider the crucial function performed by the prosecution in the disclosure of potentially significant material in its possession; whether this is evidence upon which the prosecution is choosing to rely at trial or so-called unused material. In this article I will trace the development of the principles relating to disclosure in both England and Australia from the time when the prosecutor was entitled to act as a partisan advocate to the operation for much of the 20th century of the informal 'Old Boys Act' approach to disclosure to the modern insistence on candour culminating in the landmark decisions in England in the 1990s and of the High Court of Australia in R v Mallard in 2005. The fundamental theme that emerges in relation to the issue of disclosure is that the prosecutor must act as the frank minister of justice. There is no place in the modem criminal process either for the prosecutor to act as the partisan advocate or to rely on the informal 'Gentlemen's Club' approach to disclosure. It is clear that the operation of the law in England regarding disclosure has given rise to significant practical and theoretical problems and that it would therefore be wise to be wary before importing the English model to Australia. However demanding and problematic as the prosecutor's duties of disclosure may be, I would argue that in this area, 'The prosecutor must act as a minister of justice, presenting the prosecution evidence fairly, making full disclosure of relevant material and ever conscious that prosecution must not become persecution.

Cryptography and the Economics of Supervisory Information: Balancing Transparency and Confidentiality

We elucidate the tradeoffs between transparency and confidentiality in the context of financial regulation. The structure of information in financial contexts creates incentives with a pervasive effect on financial institutions and their relationships. This includes supervisory institutions, which must balance the opposing forces of confidentiality and transparency that arise from their examination and disclosure duties. Prudential supervision can expose confidential information to examiners who have a duty to protect it. Disclosure policies work to reduce information asymmetries, empowering investors and fostering market discipline. The resulting confidentiality/transparency dichotomy tends to push supervisory information policies to one extreme or the other. We argue that there are important intermediate cases in which limited information sharing would be welfare-improving, and that this can be achieved with careful use of new techniques from the fields of secure computation and statistical data privacy. We provide a broad overview of these new technologies. We also describe three specific usage scenarios where such beneficial solutions might be implemented.

Mistake Under the Common European Sales Law

The Common European Sales Law (CESL) sets the conditions in which the mistaken party is entitled to rescission and compensation from the other party. Some of the CESL’s provisions, however, are inconsistent with efficiency. First, under the CESL, as long as the mistake is essential, for the mistaken party to be allowed to rescind the contract, it is sufficient that the other party caused the mistake. From an efficiency perspective, however, causation is not enough to allow rescission for mistake. Second, the CESL permits rescission when one party failed to disclose information to the other party that would have revealed to the latter his essential mistake and the former party knew or could be expected to have known the mistake. In contrast, under efficiency, not all essential mistakes made by the one party that the other party knew or could have known about constitute grounds for rescission. Third, the CESL allows rescission for fraud, which includes non-disclosure of information. The CESL provides a list of considerations that should be taken into account in deciding whether a duty of disclosure arises. In contrast, under efficiency, there are far more concrete guidelines for determining whether a duty of disclosure arises, and in fact, under certain conditions, intentional (“fraudulent”) misrepresentations are even permitted. Fourth, the CESL allows a contract to be rescinded when both parties made the same essential mistake. Yet efficiency considerations entail that this should not always be the case and that some mutual mistakes should not be grounds for rescission.

Medical Uncertainty and Physician Innovation

Uncertainty pervades medical practice. Rapid scientific advances and substantial patient heterogeneity in both treatment responses and value preferences make it impossible for even the most knowledgeable practitioner to confidently identify the “right” option for every patient. Uncertainty is particularly acute when a physician deliberately deviates from generally accepted practices in an attempt to improve patient care. Unlike drug and device manufacturers, innovative physicians are not subject to mandatory public regulation by the FDA or any other government agency. The question of how to regulate physician behavior thus largely falls to the tort system. Innovation by definition involves a departure from customary practice, so adherence to custom in defining the legal standard of care essentially requires physicians to solely bear the liability costs of novel interventions. This regime protects patients from unnecessary risks associated with untested treatments, but may also unduly deter physicians from tailoring individualized treatment plans that address patients’ particular needs and circumstances. This Article proposes a fiduciary framework for regulating medical uncertainty and physician innovation. The proposed approach mandates close scrutiny of the decision-making process but deference to the substance of medical decisions. Under this model, a physician should be held liable for failing to act in her patient’s best interests, taking into account the patient’s unique clinical condition and value preferences. Within these constraints, however, patients should have the freedom to choose – and assume the associated risks and uncertainties – from among a range of reasonable alternatives. If a physician satisfactorily discharges her fiduciary disclosure duties, she should be shielded from liability for providing an innovative treatment that rationally advances the patient’s interests. This legal scheme strikes a desirable balance that respects patient autonomy, minimizes unnecessary risk, and encourages medical progress.

Use of Cash-Settled Derivatives in Public Takeovers: A Challenge for Legislators, Regulators and Courts

In last couple of years, the activities of certain investors on world capital markets raised controversies as to their duties to disclose shareholdings in publicly listed issuers. These activities involved the use of cash-settled security-based financial instruments, such as call options and swaps, which enabled their holders to conceal their takeover intentions and virtually acquire access to shares in target companies, while staying out of scope of the legislation in force. This was apparently possible since cash-settled financial instruments did not provide their holders with any right either to acquire the referenced shares or to direct the voting under those shares in the general meeting of the target. The non-disclosure of positions in cash-settled financial instruments referencing the target shares left other investors, shareholders and boards of directors without the relevant information on possible changes of control, which might have influenced the target’s stock prices and possible defence strategies in case of a hostile takeover. The question whether these investors violated their duties or not is still unsettled among scholars which is why some states like Germany decided to expressly include these financial instruments in the securities legislation disclosure duties.

Divulgar ciencia: compromiso social del investigador

Frente al reto que representa la denominada sociedad del conocimiento, la alfabetización ciudadana y el desarrollo de comunidades de diálogo y aprendizaje se muestran como tareas imprescindibles. En este sentido, el nuevo quehacer del investigador científico le exige prestar mayor atención a las labores de divulgación y difusión de la ciencia, las cuales generalmente son soslayadas por considerar que se trata de actividades secundarias. De esta manera, el investigador parece ignorar que la habilidad de divulgar demuestra el grado de cultura científica que posee como experto, mientras que la habilidad de difundir evidencia su dominio de conocimientos, propios de su campo disciplinar. Reunir ambas destrezas hablaría de un alfabeta científico verdadero, competente en su quehacer científico, motivo por el cual es necesario revisar el sentido y la orientación que estas actividades sustantivas deben seguir, a fin de alcanzar el objetivo social planteado.

The law and economics of mistake in European Sales Law

The Common European Sales Law (CESL) sets the conditions in which the mistaken party is prima facie entitled to rescission and compensation from the other party. Some of the CESL's provisions, however, are inconsistent with efficiency. First, under the CESL, as long as the mistake is fundamental, for the mistaken party to be allowed to rescind the contract, it is sufficient that the other party caused the mistake. From an efficiency perspective, however, causation is not enough to allow rescission. Second, the CESL permits rescission when one party failed to disclose information to the other party that would have revealed to the latter his fundamental mistake and the former party knew or could be expected to have known the mistake. In contrast, under efficiency, not all fundamental mistakes made by the one party that the other party knew or could have known about constitute grounds for rescission. Third, the CESL allows rescission for fraud, which includes non-disclosure of information. The CESL provides a list of considerations that should be taken into account in deciding whether a duty of disclosure arises. In contrast, under efficiency, there are far more concrete guidelines for determining whether a duty of disclosure arises, and in fact, under certain conditions, intentional ("fraudulent") misrepresentations are even permitted. Fourth, the CESL allows a contract to be rescinded when both parties made the same fundamental mistake. Yet efficiency considerations entail that this should not always be the case and that some mutual mistakes should not be grounds for rescission.

Precontractual disclosure duties under the Common European Sales Law

Article 23 of the Common European Sales Law requires sellers to make plain the basic attributes of what they are selling. The seller of goods has a duty to disclose "any information concerning the main characteristics of the goods . . . which [she] has or can be expected to have and which it would be contrary to good faith and fair dealing not to disclose to the other party." The largest effect of the rule may lie not in the value of the information that is communicated, but rather the legal consequences that attach to the information that is disclosed. Article 23 works in conjunction with Articles 69 and 100. These provisions require any description of the goods to serve as a warranty. Thus, the scope of the description that Article 23 requires is coextensive with the warranty that the seller must give with respect to the goods that she is selling. Because legal consequences attach to the description, sellers have reason to say less than they might otherwise. Ironically, CESL might lead to disclosure of less information and less useful information than a regime of caveat emptor.

The Criminal Discovery Problem: Is Legislation a Solution?

In theory, legislation to enforce a prosecutor’s obligation to disclose exculpatory material to the accused should not be necessary. Although a series of U.S. Supreme Court cases have outlined a prosecutor’s legal obligation to disclose evidence favorable to the accused where the evidence is material either to guilt or punishment, in practice some prosecutors continue to violate the due process rights of defendants by failing to adhere to both their legal and ethical disclosure duties. In recent years, the prosecution, conviction, and ultimate exoneration of U.S. Ted Stevens case is the most publicized example of a federal prosecution marred by violations of prosecutorial discovery obligations. Subsequent to his conviction, an investigation revealed that some prosecutors engaged in systematic concealment of significant exculpatory evidence.Most commentators agree that part of the discovery problem lies in the “materiality” requirement for disclosure, which the Court has defined as evidence reasonably probable to change the results of the proceeding. Taken literally, a prosecutor could read this materiality standard to mean that unless the prosecutor believes that the evidence may lead to a not guilty verdict, it is not material. Because the prosecutor is convinced of the accused’s guilt, it is unlikely that she will believe that anything in her files is exculpatory evidence sufficient to undermine confidence in the outcome of the case.In response to the prosecution of Senator Stevens, Senator Lisa Murkowski proposed the “Fairness in Disclosure of Evidence Act of 2012,” which would require a federal prosecutor to disclose all favorable information to the accused. By removing the materiality requirement and requiring the disclosure of favorable information and not just evidence, the proposed law would expand a prosecutor’s legal disclosure obligation and address a major problem with the current disclosure standard.At a Senate Judiciary Committee hearing considering the proposed legislation, Deputy Attorney General James Cole testified that while what occurred in the prosecution of Senator Stevens was unacceptable it was not indicative of a systemic problem. According to Cole, whatever problem there may be is not a problem about the scope of discovery but rather one of making sure prosecutors understand and comply with their existing discovery obligations. He emphasized several steps that the DOJ was taking to enhance the training, guidance, and supervision of its prosecutors and argued that these steps would be more effective than the proposed legislation. In contrast to Cole’s testimony, commentators, the American Bar Association, a survey of federal judges, and data from exonerations and appeals all suggest that there is a discovery problem at both the federal and state levels. Against this backdrop, this Article explores the issue of prosecutorial non-compliance with disclosure obligations from the perspective of whether there is a discovery problem, and, if so, whether federal and state legislation could be a viable solution. This Article analyzes whether, contrary to the DOJ’s position, there is evidence of a discovery problem at the federal and state levels. Next, this Article explores several underlying factors that create conditions that may lead some prosecutors not to comply with current discovery obligations in federal and state jurisdictions. Finally, the Article analyzes whether legislation is a possible solution to the problem.

The Duty of Disclosure in the post- Therasense Landscape

*Birch, Stewart, Kolasch & Birch, LLP, Suite 100 East, 8110 Gatehouse Road, Falls Church, VA 22042, USA Tel.: +1 703 205 8000 Fax: +1 703 205 8050 E-mail: maa@bskb.com In Greek mythology the Hydra was a multi-headed creature, with the singular a ttribute that if one head was cut off two heads would grow. Today a hydra is “a persistent or multifaceted problem that cannot be eradicated by a single effort” [101]. Section 37 C.F.R. §1.56 states, in part, that the duty of disclosure “ includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section” [1]. Inequitable conduct may be found, and a patent held unenforceable, when information material to patentability is intentionally withheld from the USPTO. Beginning around 10 years ago, US courts created a hydra through several decisions regarding the duty of disclosure [2–5]. With these cases, the courts developed a sliding scale test, in which materiality of the information was balanced against ‘intent’ [4] . Using the sliding scale, if the information was found to be highly material, intent could be inferred. Because of this test, applicants would submit hundreds of documents, which were of little to no relevance to the patentability of the claims under examination, in an effort to comply with the heightened duty of disclosure. Compliance with the duty of disclosure in the USA became a hydra where no matter how much information the applicant submitted to the USPTO, there seemed to always be more prior art or information that could be submitted. Concomitant with this was the effect on litigations where it has been estimated that up to 80% of patent litigations included an affirmative defense of inequitable conduct for failing to comply with the duty of disclosure [6]. Recognizing the nearly impossible compliance standard that was created, in particular by the sliding scale test, the Court of Appeals for the Federal Circuit (CAFC) revisited the duty of disclosure in the en banc decision of Therasense Inc. v. Becton Dickinson and Co. [7]. The invention in Therasense involved a single-use disposable electrode strip. The element at issue was the feature that the electrode was configured to be exposed to a blood sample ‘without an intervening membrane’ [7]. The applicant distinguished the invention from a prior art reference by arguing that, in the reference, the membrane was considered to be an essential feature. However, in Europe, the applicant characterized the membrane in the European equivalent of the US reference as preferred, but not necessary. The applicant did not submit the statements made before the EPO to the USPTO. In the en banc decision, the court first newly defined materiality as being a ‘butfor’ materiality. Under this standard, ‘but-for’ materiality is met if the USPTO “would not have allowed a claim had it been aware of the undisclosed prior art” [7].

Thinking Ethically About Medical Mistakes

Medical mistakes, especially ones with significant adverse events, can erode the trust and bonds between and among parents, patients, and health care professionals. Prevention of medical mistakes should be the goal of every health care organization, and participation in quality improvement processes aimed at patient safety is an ethical duty for all health care professionals. But when mistakes occur, health care organizations and professionals should rapidly move toward disclosure and apology. These duties of honesty, disclosure and apology are based ethically on core health care principles and values. Health care organizations should require disclosure-and-apology training, especially for front-line personnel; provide assistance to clinicians with these difficult conversations; and invest in resources to address the moral distress experienced by professionals, who are often the "second victims" of medical mistakes.

THE PAST AND FUTURE OF ENGLISH INSURANCE LAW: GOOD FAITH AND WARRANTIES

This article reviews the current state of English insurance law applied to the duty of utmost good faith, in particular the assured's duty of full and accurate disclosure, and to insurance warranties, and examines the adequacy of the proposals made by the Law Commission for the reform of the law in both instances. Whilst recognising that there is a case for some reform, the reform recommended by the Law Commission is considered to extend beyond the bounds of what is necessary for the just and rational alteration of the law. In summary, the duty of utmost good faith requires no substantive reform as to the existence or scope of the duty, but does require a change by which the Courts will have the power to exercise a discretion to achieve a flexible remedial response to any breach of the duty. The principal reform which would benefit the law of warranties should concentrate on the clarity of the language in which the warranty is expressed and to identify the circumstances in which a true promissory warranty may be said to exist.

Risk Assessment vs. Right to Privacy: The Access to Health Information on the Insurance Candidate through Questionnaires and the Right to Privacy

The need of private insurers for information on the candidate's health risks is recognized by the law, which places pre-contractual duties of disclosure upon the candidates. When the risks are influenced by health factors, e.g. in the case of life- and health insurances, it implies the provision of health information by the candidates, who thus voluntarily limit their right to privacy. This consent, however, often happens in a context of factual coercion to contract. Next to this, from a legal standpoint, the collection of personal information must respond to the principle of proportionality. Against this background, this article assesses the compatibility of questionnaire techniques that rely on open-ended health related questions with the right to privacy, as protected by Portuguese and international law. It then analyses the extent of pre-contractual duties of disclosure as defined by the Portuguese Insurance Act, which requires the candidate to volunteer all the relevant information independently of being asked for it. In doing so, the article also refers to some other European countries. It concludes that the relevant Portuguese legislation is incompatible both with Portuguese constitutional law and with international law.

THE DISCLOSURE OF UNFOUNDED ALLEGATIONS IN BUSINESS INSURANCE’ MRINAL VIJAY, ‘COMMERCIAL SURROGACY ARRANGEMENTS: THE UNRESOLVED DILEMMAS

Insurance contracts are founded upon the doctrine of utmost good faith which, inter alia, requires the prospective insured to disclose material circumstances within its knowledge. This article examines the extent to which rumours in relation to, and false allegations of, dishonesty, criminality or misconduct by a business insured fall within the scope of its pre-contractual disclosure duties. If every false allegation must be disclosed, the insured may be placed in a situation where he must pay a higher premium or where he is refused insurance. Non-disclosure may entitle the insurer to avoid the contract. This article considers the current law and reform proposals in this area and argues that fairer outcomes in unfounded allegation scenarios could be achieved by adopting a proportional approach to materiality and by introducing a more flexible remedies regime.

El deber de información en el derecho 1 del consumo; The Duty to Provide Information on Consumer Law; O dever de informação sobre direito do consumidor

<p>El deber de información es un pilar básico del derecho del consumo y tiene múltiples manifestacioneslegales en el ordenamiento jurídico colombiano y en el derecho comparado. Este artículo pretende teorizaracerca del deber de información en las relaciones de consumo y estudiar especialmente el deberprecontractual de información, en sus principales expresiones como la publicidad comercial y la forma depublicidad ilícita más común: la publicidad engañosa.</p><p>Palabras clave: derecho del consumo, deber de información, publicidad engañosa.</p><p>AbstractThe duty of disclosure is a cornerstone of consumer law and has multiple legal demonstrations in Colombianlaw and comparative law. This article seeks to theorize about the duty of disclosure in consumer relationsand study especially the duty of pre-contractual information, in its main expressions as commercial advertisingand as the most common illegal advertising: misleading advertising.</p><p>Keywords: consumer law, duty of disclosure, misleading publicity.</p><p>Resumo:O dever de informação é a base do direito do consumidor e tem múltiplas manifestações jurídicas dedireito colombiano e direito comparado. Este artigo procura teorizar sobre o dever de informação nasrelações de consumo e estudar especialmente o dever de informação pré-contratual, nas suas principaisexpressões como a publicidade comercial e como a publicidade ilegal comum: publicidade enganosa.</p><p>Palavras-chave: direito do consumidor, o dever de divulgação, publicidade enganosa.</p><p> </p>