Joseph Hage Aaronson

Rule 37(e) Spoliation Sanctions — No Intent to Deprive — Fees, Jury Instructed Spoliator Was Under Duty to Preserve & Didn’t, Spoliator Barred from Offering Preserved Remainder of Missing Category of Evidence

Security Alarm Financing Enters., LP v. Alarm Protection Tech., LLC, 2016 U.S. Dist. LEXIS 168311 (D. Alaska Dec. 6, 2016): ORDER RE MOTION FOR SPOLIATION SANCTIONS Before the Court is Defendant Alarm Protection Technology's Motion for Spoliation Sanctions at Docket…

Inherent Power Sanctions Apt for Wide Range of Willful Misconduct Implicating Multiple Rules (Including Fabricated Email, Ad Hominem Attacks in 113 Filings, Extrajudicial Misconduct)—$175K in Fees/Expenses, Referral to Disciplinary Comm (Good Quotes)

Deutsch v. Henry, 2016 U.S. Dist. LEXIS 168987 (W.D. Tex. Dec. 7, 2016): Before the court are Defendants' motions for sanctions. ... Defendants have filed identical motions for sanctions as well as supplemental memoranda specifying the alleged sanctionable conduct in…

FSIA — Collateral Order Doctrine Applies to Interlocutory Appeals — Only Legal Issues Appealable, Review Is De Novo — Burden of Proof under FSIA — What Is a “Direct Effect” under the Commercial Activity Exception?

Frank v. Commonwealth of Antigua & Barbuda, 2016 U.S. App. LEXIS 21018 (5th Cir. Nov. 22, 2016): These consolidated cases involve Defendant-Appellant, the Commonwealth of Antigua and Barbuda ("Antigua"), and its alleged involvement with the Stanford Ponzi scheme. As a…

CAFA — For Case Filed Originally in Federal Court, Subject Matter Jurisdiction Isn’t Lost If Court Denies Class Certification — If Plaintiff Voluntarily Amends Complaint, Court Looks to Amended Complaint to Determine Jurisdiction

Wright Transp., Inc. v. Pilot Corp., 2016 U.S. App. LEXIS 20937 (11th Cir. Nov. 22, 2016): This appeal arises out of several years of litigation between the parties now before us, as well as many others. This litigation has occupied…

Rule 56(h) Sanctions: Attorney’s Drafting “Likely Perjurious” Affidavit and Inserting Content with Willful Blindness to, or Knowledge of, Inaccuracy = Bad Faith — The Phrase “Abuse of Discretion Is a Nonpejorative Term of Art” (Good Quote)

Jimenez v. City of NY, 2016 U.S. App. LEXIS 21051 (2d Cir. Nov. 21, 2016): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is AFFIRMED…

Judicial Notice on 12(b)(6) Motion: “Not All Court Records Are Equal with Respect to the Ability to Take Judicial Notice” (Good Quote) — Fact of Party’s Filing (OK) vs. Truth of Matters Asserted (Not) — Facts of Procedural History OK

Malifrando v. Real Time Resolutions, Inc., 2016 U.S. Dist. LEXIS 164497 (E.D. Cal. Nov. 29, 2016): A. Rule 12(b)(6) – Failure to State a Claim *** In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court …

CT Scan Admissible/Authenticated under Same Standards as X-Rays (Best Evidence, Too) — Electronic Medical Records Authentication = Computer-Generated-Evidence & Business-Records Foundation — Silent Witness Theory

Washington v. State, 2016 Ark. App. 565; 2016 Ark. App. LEXIS 608 (2016): A jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years' imprisonment. He appealed the sentencing order …

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on …

Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) …

Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Rich v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20850 (9th Cir. Nov. 21, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judith Rich and Vincent …

Commercial Litigation and Arbitration

Rule 37(e) Spoliation Sanctions — No Intent to Deprive — Fees, Jury Instructed Spoliator Was Under Duty to Preserve & Didn’t, Spoliator Barred from Offering Preserved Remainder of Missing Category of Evidence

Inherent Power Sanctions Apt for Wide Range of Willful Misconduct Implicating Multiple Rules (Including Fabricated Email, Ad Hominem Attacks in 113 Filings, Extrajudicial Misconduct)—$175K in Fees/Expenses, Referral to Disciplinary Comm (Good Quotes)

FSIA — Collateral Order Doctrine Applies to Interlocutory Appeals — Only Legal Issues Appealable, Review Is De Novo — Burden of Proof under FSIA — What Is a “Direct Effect” under the Commercial Activity Exception?

CAFA — For Case Filed Originally in Federal Court, Subject Matter Jurisdiction Isn’t Lost If Court Denies Class Certification — If Plaintiff Voluntarily Amends Complaint, Court Looks to Amended Complaint to Determine Jurisdiction

Rule 56(h) Sanctions: Attorney’s Drafting “Likely Perjurious” Affidavit and Inserting Content with Willful Blindness to, or Knowledge of, Inaccuracy = Bad Faith — The Phrase “Abuse of Discretion Is a Nonpejorative Term of Art” (Good Quote)

Judicial Notice on 12(b)(6) Motion: “Not All Court Records Are Equal with Respect to the Ability to Take Judicial Notice” (Good Quote) — Fact of Party’s Filing (OK) vs. Truth of Matters Asserted (Not) — Facts of Procedural History OK

CT Scan Admissible/Authenticated under Same Standards as X-Rays (Best Evidence, Too) — Electronic Medical Records Authentication = Computer-Generated-Evidence & Business-Records Foundation — Silent Witness Theory

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Recent Articles

nherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 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

Archives

New York Office