Joseph Hage Aaronson

Circumstantial Authentication of Email Evidence Based on Content and Context — Authenticating Testimony Need Not “Be Free from Weakness or Doubt” — Deficiencies in Chain of Custody for Factfinder

State v. Ruiz, 2014 Mich. App. LEXIS 855 (Mich. Ct. App. May 15, 2014): Defendant next argues that the trial court erred by admitting e-mail records into evidence. Defendant objected at trial to the admissibility of the e-mail evidence in…

Rule 37(c)(1) Sanctions — Neither Fault Nor Willfulness Required — Opportunity to Submit Briefs = Opportunity to Be Heard, Satisfies Due Process

Remington v. Mathson, 2014 U.S. App. LEXIS 9849 (9th Cir. May 28, 2014): The district court did not abuse its discretion in imposing discovery sanctions on Remington because Remington's failure to comply with expert witness disclosures was neither substantially justified…

Inherent Power Sanctions Imposed Where Rule 11 Substantively Violated But Inapt Due to Timeliness — Applying “Rule 11-Type Analysis” OK — Pro Se Can’t Recover Attorney’s Fees — Can’t Award Sanctions to Pay Unpaid Judgment

Peer v. Lewis, 2014 U.S. App. LEXIS 13259 (11th Cir. July 9, 2014): Daniel Warfield Lewis, proceeding pro se, appeals the order imposing sanctions against three lawyers who represented Christopher Peer in an underlying action brought against Lewis under the …

FSIA Does Not Protect Counsel of Sovereign from § 1782 Discovery — Second Circuit Affirms Denial of 1782 Discovery but Sua Sponte Orders Documents Not Be Destroyed Due to Fluidity of Foreign Proceedings

Mare Shipping LLC v. Squire Sanders (US) LLP, 2014 U.S. App. LEXIS 14525 (2d Cir. July 30, 2014): Appellants Mare Shipping Inc. ("Mare") and Apostolos Mangouras ("Mangouras") appeal from a decision of the District Court denying their motion to compel…

Failure to Pay Sanctions = Civil Contempt — No Vicarious §1927 Liability — Every Lawyer Needn’t Vet Every Filing — Adverse Inference for 5th Amend. on Sanctions Motion — What Is Timely Is up to District Court — The Rule of Holes (Good Quotes)

Lightspeed Media Corp. v. Smith, 2014 U.S. App. LEXIS 14725 (7th Cir. July 31, 2014): The first rule of holes, according to an old saying, is to stop digging. The two appeals before us bring that to mind, for reasons …

Does a Magistrate Judge Have Authority to Deny a Motion to Amend a Complaint If Denial Effectively Dismisses Certain Claims (E.g., Because Statute of Limitations Has Expired)? Case Law Split

Duncan v. City of N.Y., 2014 U.S. Dist. LEXIS 96214 (E.D.N.Y. July 15, 2014): Plaintiff Shamaine Duncan ("Duncan") seeks leave to file a Fourth Amended Complaint in order to substitute the name of police officer Richard Dinkle ("Dinkle") for that …

Judicial Estoppel — Majority Rule — Prior Success, Clear Inconsistency and Impact on Judicial Integrity Requirements

Crawford v. Franklin Credit Mgmt. Corp., 2014 U.S. App. LEXIS 13179 (2d Cir. July 11, 2014): "Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument …

Rule 11: No Abuse of Discretion Not to Sanction Factual Inaccuracies in Pleadings Due to Clerical Mistake, Promptly Corrected when Discovered — Definition of Abuse of Discretion (Fifth Circuit)

White v. Cox, 2014 U.S. App. LEXIS 14021 (5th Cir. July 23, 2014): White's argument that sanctions should have been awarded pursuant to Rule 11 of the Federal Rules of Civil Procedure, as there were factual inaccuracies in the defendants'…

Surveillance Video Authentication via Circumstantial Evidence — Fact That Video Is Programmed to Skip a Few Seconds Intermittently Neither Renders It Inauthentic Nor Subject to 403 Exclusion

United States v. Cejas, 2014 U.S. App. LEXIS 14874 (7th Cir. 2014): A. Video Was Properly Authenticated We begin with Constantino and Nicholas's joint argument that the video showing them outside of Denny's residence on February 14, 2011 should not…

While Court Construes Pro Se Filings Broadly, It Does Not Act as Advocate (Good Quote) — Rule 37 Dismissal Sanction: Tenth Circuit Factors

Fischer v. Dunning, 2014 U.S. App. LEXIS 14641 (10th Cir. July 31, 2014): Michael Fischer claims several officials of a state correctional facility, where Fischer is currently serving time, were deliberately [*2] indifferent to his medical needs in violation of…

Commercial Litigation and Arbitration

Circumstantial Authentication of Email Evidence Based on Content and Context — Authenticating Testimony Need Not “Be Free from Weakness or Doubt” — Deficiencies in Chain of Custody for Factfinder

Rule 37(c)(1) Sanctions — Neither Fault Nor Willfulness Required — Opportunity to Submit Briefs = Opportunity to Be Heard, Satisfies Due Process

Inherent Power Sanctions Imposed Where Rule 11 Substantively Violated But Inapt Due to Timeliness — Applying “Rule 11-Type Analysis” OK — Pro Se Can’t Recover Attorney’s Fees — Can’t Award Sanctions to Pay Unpaid Judgment

FSIA Does Not Protect Counsel of Sovereign from § 1782 Discovery — Second Circuit Affirms Denial of 1782 Discovery but Sua Sponte Orders Documents Not Be Destroyed Due to Fluidity of Foreign Proceedings

Failure to Pay Sanctions = Civil Contempt — No Vicarious §1927 Liability — Every Lawyer Needn’t Vet Every Filing — Adverse Inference for 5th Amend. on Sanctions Motion — What Is Timely Is up to District Court — The Rule of Holes (Good Quotes)

Does a Magistrate Judge Have Authority to Deny a Motion to Amend a Complaint If Denial Effectively Dismisses Certain Claims (E.g., Because Statute of Limitations Has Expired)? Case Law Split

Judicial Estoppel — Majority Rule — Prior Success, Clear Inconsistency and Impact on Judicial Integrity Requirements

Rule 11: No Abuse of Discretion Not to Sanction Factual Inaccuracies in Pleadings Due to Clerical Mistake, Promptly Corrected when Discovered — Definition of Abuse of Discretion (Fifth Circuit)

Surveillance Video Authentication via Circumstantial Evidence — Fact That Video Is Programmed to Skip a Few Seconds Intermittently Neither Renders It Inauthentic Nor Subject to 403 Exclusion

While Court Construes Pro Se Filings Broadly, It Does Not Act as Advocate (Good Quote) — Rule 37 Dismissal Sanction: Tenth Circuit Factors

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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