Defendant No. 1 in United States v. Williams, 2007 U.S. App. LEXIS 24725 (2d Cir. Oct 23, 2007), challenged on appeal the testimony of one of the government’s experts under Daubert and Fed.R.Evid. 702. He maintained, and the parties conceded, that it was he who had requested a Daubert hearing in the District Court to challenge the same expert’s testimony. But the record reflected that another defendant made the request below, raising the question whether the issue had been preserved for appeal by Defendant No. 1. In their appellate briefs, however, all defendants adopted one another’s arguments pursuant to Fed.R.App.P. 28(i), which provides that: ‛In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief.“ That resolved the preservation issue for the Second Circuit in Williams: ‛This [issue] is of no moment ... because appellants have joined one another’s arguments pursuant to Fed.R.App.P. 28(i).“ Yet another reason why it is important to adopt the arguments of co-parties to the extent they are applicable (and not sanctionable).
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