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Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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Judicial Notice of Internet Evidence — No Judicial Notice of Website of Governmental Party Stating Fact Inconsistent With All Evidence before the Government Entity and Contrary to Its Own Findings of Fact (Website as Evidence Creator?)

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Spokane Cnty. v. E. Wash. Growth Mgmt. Hearings Board, 2015 Wash. App. LEXIS 755 (Wash. Ct. App. April 9, 2015):

We address once again the compliance of Spokane County with Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this time in the context of a comprehensive plan amendment that rezoned a parcel of land. The reviewing administrative agency, the Growth Management Hearings Board (GMHB), invalidated the amendment, and the superior court reversed. We reverse in part and affirm in part the decisions of the superior court and remand the case to the GMHB for further proceedings.

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¶70 UL.2.16 also desires that the Douglass site benefit from good access to major arterials. Douglass' property abuts two roads: Five Mile Road and Waikiki Road. Five Mile Road is not a major arterial. For the first time on appeal, Spokane County argues that Waikiki Road is a major arterial. We must limit our response to the county's argument to the record before the GMHB. Pierce County Sheriff v. Civil Serv. Comm'n for Sheriff's Emp. of Pierce County, 98 Wn.2d 690, 693-94, 658 P.2d 648 (1983). The record defeats the county's argument.

¶71 A hearing examiner addressing Douglass' Redstone application wrote that Waikiki Road is a minor principal arterial. Nevertheless, the examiner's finding is [*49]  not a direct source for this information. Also, the examiner's use of the adjective "principal" rather than "major," lessens the credibility of the finding. "Minor" and "principal" are inconsistent terms.

¶72 The Department of Building and Planning staff report identified Waikiki as a "Minor Urban Arterial." Douglass' letter to the Board of Commissioners labels Waikiki Road as minor arterial. Spokane County's own internally inconsistent finding of fact 23 designates Waikiki Road as minor arterial.

¶73 Spokane County agrees that the record before the Board of Commissioners and the GMHB only labeled Waikiki Road as a minor arterial. Spokane County claims any identification of Waikiki Road as a minor arterial is an unfortunate error and asks this court to take judicial notice of Spokane County's Arterial Road Map, available at www.spokanecounty.org/data/engineers/traffic/arterialroadmap.pdf, which identifies Waikiki as an "urban principal arterial." We deny Spokane County's request.

¶74 ER 201 permits a court to take judicial notice of "adjudicative facts ... not subject to reasonable dispute" in the sense that they are either "(1) generally known within the territorial jurisdiction of the trial court or [*50]  (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Spokane County does not isolate which ground or grounds it forwards in asking us to take judicial notice. We do not consider the classification of Waikiki Road's status to be common knowledge within Spokane County, nor does the county argue such. We also know of no decision that recognizes an Internet web page to be a source whose accuracy cannot reasonably be questioned. In In re Marriage of Meredith, 148 Wn. App. 887, 904, 201 P.3d 1056 (2009), the husband asked this court to take judicial notice of information on internet sites of immigrant rights organizations in order to support his claim of judicial bias. This court reasoned, with double negatives, that information contained on the internet sites were not from a source whose accuracy cannot reasonably be questioned.

¶75 We recognize that Spokane County asks us to take judicial notice of information on a government entity website, rather than a website of questionable origin. Nevertheless, we will not take judicial notice of information on a government website that is inconsistent with all evidence before the government entity and contrary to the entity's own findings of fact.

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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