Joseph Hage Aaronson

Work Product — Disclosure in Corp. Acquisition Setting — Standing: Seller Supplying Info to Buyer’s Counsel Can’t Assert Work Product over Resulting Report — Production of Report Doesn’t Violate Seller’s Fifth Amendment Rights Because Seller

Waymo LLC v. Uber Techs., Inc., 2017 U.S. App. LEXIS 17668 (Fed. Cir. Sept. 13, 2017): Appellant Anthony Levandowski, an intervenor, seeks to prevent discovery sought by Appellee Waymo LLC ("Waymo").1 Waymo sued Uber Technologies, Inc. ("Uber"), Ottomotto LLC, and…

Sanctions & Magistrate Judges: MJs May Preclude Evidence & Deem Facts Admitted under R. 37(b), If These Don’t End the Claim—Violated Order Needn’t Be Written—Order Allowing Discovery≠R. 37 Order—Can MJs Order R. 11 Sanctions? (Cir. Split)

Joint Stock Company Channel One Russia Worldwide v. Informir LLC, 2017 U.S. Dist. LEXIS 165702 (S.D.N.Y. July 18, 2017): Before me are two motions, both filed by plaintiffs, seeking sanctions against defendant Panorama Alliance, LP (Panorama) and its former attorney…

Do “Costs” in Rule 41(d) Include Attorney’s Fees? — Circuit Split — Can Inherent Power Sanctions Be Used If the Answer Is No? — Generally Not — Court May Not Grant Unrequested Relief under Rule 54(c) If It Is a Surprise and Prejudicial

Portillo v. Cunningham, 2017 U.S. App. LEXIS 19603 (5th Cir. Oct. 6, 2017): JohnJay Portillo appeals the dismissal of his claims under common law, Texas statutes, and 42 U.S.C. § 1983. He contends that the court erred by dismissing for…

Hearsay: Terrorist Claims of Responsibility ≠ Statements against Interest But Claims of Benefit; Newspaper Articles = Hearsay — Expert May Explain Why Facts Lead to Conclusion Even If Lay Person Can Reach Conclusion — Good SJ Quote

Strauss v. Crédit Lyonnais, S.A., 2017 U.S. Dist. LEXIS 165722 (E.D.N.Y. Sept. 30, 2017): Pursuant to the 2013 statute of limitations amendment [*12] to the Anti-Terrorism Act ("ATA"), Plaintiffs' claims arising from five attacks (the "Reinstated Attacks"), previously dismissed …

Rule 68 Offer of Judgment: Ambiguities Construed against Drafter, But Circuit Split Exists as to Whether This Applies to Ambiguity Concerning Whether Statutorily-Awarded Fees Are Included in the Offer

Johnson v. Hyatt Hotels Corp., 2017 U.S. Dist. LEXIS 165850 (D.S.C. Oct. 6, 2017): This matter is before the court on plaintiff Bradley Johnson's ("Johnson") motion for attorneys' fees. For the reasons set forth below, the court denies the…

YouTube Authentication—New York State—By Certification from YouTube, Testimony of Witness Who Viewed It, Party’s Admission a Video Was Done in Call to 3d Party, Appearance, Contents, Characteristics

People v. Franzese, 2017 N.Y. App. Div. LEXIS 6967 (2d Dep’t Oct. 4, 2017): Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered July 8, 2015, convicting him of attempted assault in the…

Hearsay—911 Call: Present Sense Impression May Apply to Answers to Questions after the Event, Requires No Calculated Narration — Excited Utterance (Factors), May Be More Probative Than Later Testimony Given after Consequences Considered

United States v. Boyce, 742 F.3d 792 (7th Cir. 2013): After a foot chase during which an officer said he saw Darnell Boyce throw a gun into a yard, officers recovered the gun from the area and also found ammunition…

Rule 37 Dismissal Sanction Warranted for Refusal to Sit for Deposition on Fifth Amendment Grounds — Party Must Appear and Assert the Fifth Question by Question — Can’t Refuse to Attend — Dismissal Sanction Requires Willfulness or Bad Faith

United States v. Twenty-Nine Pre-Columbian And Colonial Artifacts From Peru, 2017 U.S. App. LEXIS 9748 (11th Cir. June 2, 2017): Jean Combe-Fritz appeals from the district court's final judgment of forfeiture of a number of artifacts confiscated from him by …

Prohibition against Claim-Splitting: Factors—Transactional Analysis—Second Suit Not Saved by Extending Time Period, Adding Claims—Same Series of Transactions, Same Goals Dispositive—Relationship to Res Judicata

Vanover v. NCO Fin. Servs., 857 F.3d 833 (11th Cir. 2017): Plaintiff-Appellant Karen Vanover ("Vanover") sued Defendant-Appellee NCO Financial Systems, Inc. ("NCO"), on April 23, 2014, for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227,…

Rule 37(c) Sanctions: Non-Disclosure of Documents under 26(a) ≠ Exclusion If Defendant Already Has Them (No Surprise) — Experts: Reasonableness of Conduct in Light of Regulatory Framework ≠ Legal Opinion—Punitive Damages: Constitutionality

Daugherty v. Ocwen Loan Serv., LLC, 2017 WL 3172422 (4th Cir. July 26, 2017): Plaintiff David Daugherty filed a complaint under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., alleging that defendant Ocwen Loan Servicing, LLC …

Commercial Litigation and Arbitration

Work Product — Disclosure in Corp. Acquisition Setting — Standing: Seller Supplying Info to Buyer’s Counsel Can’t Assert Work Product over Resulting Report — Production of Report Doesn’t Violate Seller’s Fifth Amendment Rights Because Seller

Sanctions & Magistrate Judges: MJs May Preclude Evidence & Deem Facts Admitted under R. 37(b), If These Don’t End the Claim—Violated Order Needn’t Be Written—Order Allowing Discovery≠R. 37 Order—Can MJs Order R. 11 Sanctions? (Cir. Split)

Do “Costs” in Rule 41(d) Include Attorney’s Fees? — Circuit Split — Can Inherent Power Sanctions Be Used If the Answer Is No? — Generally Not — Court May Not Grant Unrequested Relief under Rule 54(c) If It Is a Surprise and Prejudicial

Hearsay: Terrorist Claims of Responsibility ≠ Statements against Interest But Claims of Benefit; Newspaper Articles = Hearsay — Expert May Explain Why Facts Lead to Conclusion Even If Lay Person Can Reach Conclusion — Good SJ Quote

Rule 68 Offer of Judgment: Ambiguities Construed against Drafter, But Circuit Split Exists as to Whether This Applies to Ambiguity Concerning Whether Statutorily-Awarded Fees Are Included in the Offer

YouTube Authentication—New York State—By Certification from YouTube, Testimony of Witness Who Viewed It, Party’s Admission a Video Was Done in Call to 3d Party, Appearance, Contents, Characteristics

Hearsay—911 Call: Present Sense Impression May Apply to Answers to Questions after the Event, Requires No Calculated Narration — Excited Utterance (Factors), May Be More Probative Than Later Testimony Given after Consequences Considered

Rule 37 Dismissal Sanction Warranted for Refusal to Sit for Deposition on Fifth Amendment Grounds — Party Must Appear and Assert the Fifth Question by Question — Can’t Refuse to Attend — Dismissal Sanction Requires Willfulness or Bad Faith

Prohibition against Claim-Splitting: Factors—Transactional Analysis—Second Suit Not Saved by Extending Time Period, Adding Claims—Same Series of Transactions, Same Goals Dispositive—Relationship to Res Judicata

Rule 37(c) Sanctions: Non-Disclosure of Documents under 26(a) ≠ Exclusion If Defendant Already Has Them (No Surprise) — Experts: Reasonableness of Conduct in Light of Regulatory Framework ≠ Legal Opinion—Punitive Damages: Constitutionality

Recent Articles

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

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