Joseph Hage Aaronson

Spoliation — Second Circuit Reaffirms Negligence Standard for Adverse Inference Instruction — Physical Evidence (Same Post 37(e)?) — Same Standard in Criminal as Civil Case — Government Department’s Policy No Excuse for Spoliation

United States v. Garcia, 2015 U.S. App. LEXIS 392 (2d Cir. Jan. 7, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED and that the…

Discovery — Fact That Documents Are Publicly Available Is No Defense to Production of Documents Possessed, But There Is No Duty to Obtain Unpossessed, Publicly Available Documents for Production (What About Work Product?)

Todd v. Tempur-Sealy Int’l, Inc., 2014 U.S. Dist. LEXIS 161037 (N.D. Cal. Nov. 17, 2014): I. BACKGROUND Plaintiffs' initial Complaint, filed on October 25, 2013, and operative Second Amended Complaint, filed on August 29, 2014, allege misrepresentations and omissions by …

Rule 11 and Removal — No Abuse of Discretion to Deny Sanctions for Clear Rule 11 Violation — Rooker-Feldman Inapplicable to Removed Claims — § 1447(c) Sanctions Shouldn’t Be Imposed to Discourage All But Air-Tight Cases for Removal

Lundahl v. Home Depot, Inc., 2014 U.S. App. LEXIS 22993 (10th Cir. Dec. 3, 2014): Plaintiff Holli Lundahl, proceeding pro se,1 appeals from the district court's order denying her motion for sanctions under Fed. R. Civ. P. 11 against defendants…

RICO — The Act of Filing Even a Frivolous Lawsuit Does Not, by Itself, Constitute an Act of Extortion within the Hobbs Act — Noerr Pennington Applied to Litigation: Two-Part Test

Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 24258 (Fed. Cir. Dec. 23, 2014): We turn next to Diebold's appeal from the district court's dismissal of its tortious interference and RICO violation claims against …

Sanctions — Court May Dismiss for Deliberate Violation of Rule 37 without Considering Lesser Sanctions (Unlike Inherent Power) — Not Every Willful Violation of Court Order Justifies Dismissal — 8th Circuit’s 3-Part Test — What Is Prejudice

Comstock v. UPS Ground Freight, Inc., 2014 U.S. App. LEXIS 24554 (8th Cir. Dec. 30, 2014): Responding to serious misconduct during discovery, the district court1 sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this dismissal, and we affirm. 1 …

Experts — Reliance on Business Plan without Inquiry into Qualifications of Preparers or Underlying Assumptions Renders Opinion Unreliable — Expert’s Alternate Opinion Should’ve Been Allowed: Exclusion of Critical Evidence Is Extreme Sanction

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's …

Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet …

§ 1782 Allows Foreign Criminal Complainant to Obtain Documentary Discovery in the United States for Foreign Criminal Investigation Involved an Investigating Magistrate

In re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 2014 U.S. App. LEXIS 23492 (2d Cir. Dec. 12, 2014): The question presented is one of first impression2…

Supreme Court — Removal — § 1446(a) Requires Only Plausible Allegation of Amount in Controversy — Evidence Required Only If Plaintiff Contests, or Court Questions, Defendant’s Allegation — No Presumption against Removal in CAFA Cases

Dart Cherokee Basin Operating Company, LLC v. Owens, 2014 U.S. LEXIS 8435 (U.S. Dec. 15, 2014): To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal…

Sanctions Wrongly Based in Part on Speculation (X May Have Submitted False Filings) — Defendant Not Tarred with Co-Defendant’s Misconduct — Ninth Circuit Default Standards — Discretion Narrows as Severity of Sanction Increases (Good Quote)

Loops, LLC v. Phoenix Trading, Inc., 2014 U.S. App. LEXIS 21602 (Fed. Cir. Nov. 13, 2014): The issue before us on appeal is whether the district court abused its discretion in granting sanctions of default judgment, attorney's fees, and costs …

Commercial Litigation and Arbitration

Spoliation — Second Circuit Reaffirms Negligence Standard for Adverse Inference Instruction — Physical Evidence (Same Post 37(e)?) — Same Standard in Criminal as Civil Case — Government Department’s Policy No Excuse for Spoliation

Discovery — Fact That Documents Are Publicly Available Is No Defense to Production of Documents Possessed, But There Is No Duty to Obtain Unpossessed, Publicly Available Documents for Production (What About Work Product?)

Rule 11 and Removal — No Abuse of Discretion to Deny Sanctions for Clear Rule 11 Violation — Rooker-Feldman Inapplicable to Removed Claims — § 1447(c) Sanctions Shouldn’t Be Imposed to Discourage All But Air-Tight Cases for Removal

RICO — The Act of Filing Even a Frivolous Lawsuit Does Not, by Itself, Constitute an Act of Extortion within the Hobbs Act — Noerr Pennington Applied to Litigation: Two-Part Test

Sanctions — Court May Dismiss for Deliberate Violation of Rule 37 without Considering Lesser Sanctions (Unlike Inherent Power) — Not Every Willful Violation of Court Order Justifies Dismissal — 8th Circuit’s 3-Part Test — What Is Prejudice

Experts — Reliance on Business Plan without Inquiry into Qualifications of Preparers or Underlying Assumptions Renders Opinion Unreliable — Expert’s Alternate Opinion Should’ve Been Allowed: Exclusion of Critical Evidence Is Extreme Sanction

Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

§ 1782 Allows Foreign Criminal Complainant to Obtain Documentary Discovery in the United States for Foreign Criminal Investigation Involved an Investigating Magistrate

Supreme Court — Removal — § 1446(a) Requires Only Plausible Allegation of Amount in Controversy — Evidence Required Only If Plaintiff Contests, or Court Questions, Defendant’s Allegation — No Presumption against Removal in CAFA Cases

Sanctions Wrongly Based in Part on Speculation (X May Have Submitted False Filings) — Defendant Not Tarred with Co-Defendant’s Misconduct — Ninth Circuit Default Standards — Discretion Narrows as Severity of Sanction Increases (Good Quote)

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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