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Privilege Developments in the Corporate Context — 2008

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A new article discussing recent developments in attorney-client privilege and work product protection in the corporate context has been posted on the Recent Articles page. It can be found at http://www.josephny_live.com/articles/viewarticle.php?54.

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Rule 37 Sanctions — Default Judgment — Death Penalty Sanctions: 4 Factors: (1) Willfulness, Bad Faith Or Fault (e.g., Flouting Court Order), (2) Client, Not Counsel, Responsible, (3) Substantial Prejudice, (4) Lesser Sanctions Insufficient — For Non-Death Penalty Sanctions, Sanction Merely Need Be Just And Related to The Particular Claim at Issue — List of Sanctions in Rule 37 Is Not Exhaustive

Rule 11 Sanctions — Appealability: Mere Criticism in Order Separately Imposing Sanctions Is Unappealable — Due Process Satisfied by Order Giving Clear Notice of Specific Conduct to Be Considered for Sanctions Even If Words “Show Cause” (Rule 11(c)(3)) Missing — Firm Appearing on Signature Page “Present[s]” Brief to Court (Unless Merely “Secondary” Counsel) — When Counsel Appears Unopposed, A Stricter Standard of Candor Applies — Mischaracterization of Submitted Document Sanctionable — Good Quotes: “Rule 11 Is Not A Strict Liability Provision” / “The Argument Is Like The Thirteenth Chime of A Clock: You Not Only Know It’s Wrong, But It Causes You to Wonder About Everything You Heard Before” / “Pursuit of Sanctions by a Court Can Alter Its More Customary Relationship with Counsel and Its Role As Neutral Decisionmaker”

Rule 37(c)(1) Sanctions — Exclusion of Critical Evidence Generally Requires Willful Deception or Flagrant Disregard of Court Order — Disclosure of Undisclosed Rule 26(a)(1)(A)(i) During Discovery Precludes Claim of Surprise or Prejudice (and Satisfies Rule 26(e)(1)(A))

Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Spoliation Sanctions: (1) Meaning of “Relevance” for Preservation vs. for Adverse Inference Purposes; (2) Only “Very Slight Showing” of Latter Required; (3) Adverse Inference Instruction OK for Negligent Spoliation of Tangible Evidence in D.C. Cir.; (4) Preponderance of Evidence for Adverse Inference Instruction vs. Clear & Convincing for Attorney’s Fees; (5) Wide Range of Inherent Power Sanctions Available; (6) Two Sets of Factors for Adverse Inference Instruction (D.C. Cir.) — Prerequisites and Propriety in the Circumstances; (7) Ordinary vs. Gross Negligence; (8) Cite

Rule 11 Sanctions Should Be Allocated Among Persons Responsible — Not Imposed Lightly As Misapplication Can Chill Counsel’s Enthusiasm and Stifle Creativity in Pursuing Novel Factual Or Legal Theories — Disgorgement of Fees into Court — Focus of Improper Purpose Inquiry Is On Objective Facts Supporting Inference Goal Was Harassment Or Unnecessary Delay — While Rule 11 Is Not Intended to Be Compensatory in First Instance, Effective Deterrence May Require Compensation of Victim — Rule 37 Sanctions: Where Case Has Been Dismissed after Violation, Best Sanction Is Award of Fees and Expenses Incurred in Bringing Motions to Compel and for Sanctions Against Client and Counsel Jointly

Rule 37(c) Preclusion for 26(a)(1) Non-Disclosure Requires Harm to Opponent, And Harm Doesn’t Require Preclusion — Preclusion Factors (1st Cir.) — “Substantially Justified” And “Harmless[ness]” Exceptions — Late Disclosure Can Be Harmless Even If It Follows Filing of Summary Judgment Motion

Circuit Split: District Court Lacks Jurisdiction to Modify Protective Order after Rule 41(a)(1) Dismissal (11th Cir. (2-1))— Not a “Collateral Matter” over Which Jurisdiction Remains (Like Costs, Fees, Contempt Sanctions, Rule 11 Sanctions, and Motions to Confirm Arbitral Awards) — Stipulated Protective Order Is an Enforceable Contract, Subject to Post-Dismissal Lawsuit — Strong Dissenting Opinion

“The purpose of a Rule 11 sanction is to punish ‘unprofessional conduct in litigation'” — Bankruptcy: Automatic Stay Does Not Preclude Imposition of Contempt Sanctions: “‘[a] litigant should not be allowed to delay the imposition of sanctions indefinitely by the expedient of declaring bankruptcy'”

Rule 11 Sanctions: Attorney May Not Rely on Clients When Objectively Unreasonable — Cannot Rely on Discovery to Bring Claims with No Factual Basis — Specific Identification Requirement — $10,000 Deterrent Penalty OK — Factors from Adv. Comm. Note Adopted

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