Joseph Hage Aaronson

Experts and Summary Judgment — Competing Threads of Decision

Does an expert opinion — or do conflicting expert opinions — create a fact issue precluding summary judgment? Fact Issue Created • Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002): “Where, as here,…

“Corporate Disclosure of ‘Facts’” without Waiving Attorney-Client Privilege or Work Product Protection — Paper authored by Professor Bruce Green for ABA Task Force on Attorney-Client Privilege

Download associated file: Bruce Green Disclosure of Facts without Waiver.pdf Bruce Green, the distinguished Louis Stein Professor of Law at Fordham Law School and the Director of the Stein Center of Law and Ethics, has written an excellent,…

Noerr-Pennington Doctrine Applies to Government’s Condemnation Litigation, Including Discovery Conduct — Protection Extends to Counsel — Sham Exception Applies Even If Plaintiff was Not Diligent in Seeking to Uncover Sham

The plaintiff Kearney v. Foley & Lardner, LLP, 2009 U.S. App. LEXIS 20950 (9th Cir. Sept. 18, 2009) alleged that, in a prior state court condemnation proceeding, the condemning governmental entity and its counsel falsely denied the existence of, and…

Name Partners at P.C. Not Liable as Fiduciaries for Other Lawyer’s Pillaging of IOLA Account — Violation of Disciplinary Rules Isn’t Necessarily Evidence of Negligence — N.Y. Bus. Corp. L. § 1505 Imposes No Duties on Lawyers in PC Not Representin

From Gianoukas v. Campitiello, 2009 U.S. Dist. LEXIS 95354 (S.D.N.Y. Oct. 13, 2009): Levy and Boonshoft are lawyers and officers of L&B, a New York professional services corporation. (Amended Complaint…. At times relevant to this action, Campitiello, who is also…

Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502

Download associated file: B of A Waiver Order.pdf The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In…

Abuse of Discretion & Experts — That Court 1 Is Affirmed in Admitting Certain Expert Testimony as Helpful to the Jury Does Not Mean that Court 2 Erred in Excluding Essentially the Same Testimony as Unnecessary to Assist Another Jury

From North American Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009): Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), establishes a two-part…

Trust 1 Is Not Collaterally Estopped by Judgment Against Trust 2 — Even Though They Share the Same Testators, Counsel and a Majority of Trustees — Given the Supreme Court’s Limitations on the Doctrine of “Virtual Representation”

From Henry E. and Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. United States, 88 Fed. Cl. 105, 2009 U.S. Claims LEXIS 236, 2009-2 U.S. Tax Cas. (CCH) ¶50,475 (U.S. Claims Ct. July 1, 2009): Plaintiff, the…

SLUSA Removal ≠ Complete Preemption — Removal Requires Only Consent of, Not Signatures from, All Defendants (Circuit Split) — After Dismissing SLUSA-Precluded Claim, Remand Appropriate — Quasi-Appraisal — Good Quote

From Proctor v. Vishay Intertechnology, Inc., 2009 U.S. App. LEXIS 22254 (9th Cir. 2009): [Quasi-Appraisal] “Quasi-appraisal” is a term of art under Delaware corporations law…. Where the statutory appraisal remedy will not make a plaintiff whole—for example, when a plaintiff…

Michigan Issues Model Jury Instructions Prohibiting Jurors from Using Computers or PDAs to Search for Information About the Case

Effective September 1, 2009, the Michigan Supreme Court adopted Model Civil Jury Instruction 2.06(3)-(4), which bars the use by jurors of handheld devices and computers to obtain information relevant to the case, and directs judges to instruct jurors as follows:…

Protective / Confidentiality Orders — Factors Governing In-House Counsel’s Access to Highly Confidential Trade Secrets Disclosed in Discovery

From Biovail Labs., Inc. v. Anchen Pharms., Inc., 463 F. Supp. 2d 1073, 1084 (C.D. Cal. 2006): Finally, the Court must consider whether Biovail ‘s new general counsel, Wendy Kelley, may review Anchen’s confidential documents without executing a declaration stating…

Commercial Litigation and Arbitration

Experts and Summary Judgment — Competing Threads of Decision

“Corporate Disclosure of ‘Facts’” without Waiving Attorney-Client Privilege or Work Product Protection — Paper authored by Professor Bruce Green for ABA Task Force on Attorney-Client Privilege

Noerr-Pennington Doctrine Applies to Government’s Condemnation Litigation, Including Discovery Conduct — Protection Extends to Counsel — Sham Exception Applies Even If Plaintiff was Not Diligent in Seeking to Uncover Sham

Name Partners at P.C. Not Liable as Fiduciaries for Other Lawyer’s Pillaging of IOLA Account — Violation of Disciplinary Rules Isn’t Necessarily Evidence of Negligence — N.Y. Bus. Corp. L. § 1505 Imposes No Duties on Lawyers in PC Not Representin

Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502

Abuse of Discretion & Experts — That Court 1 Is Affirmed in Admitting Certain Expert Testimony as Helpful to the Jury Does Not Mean that Court 2 Erred in Excluding Essentially the Same Testimony as Unnecessary to Assist Another Jury

Trust 1 Is Not Collaterally Estopped by Judgment Against Trust 2 — Even Though They Share the Same Testators, Counsel and a Majority of Trustees — Given the Supreme Court’s Limitations on the Doctrine of “Virtual Representation”

SLUSA Removal ≠ Complete Preemption — Removal Requires Only Consent of, Not Signatures from, All Defendants (Circuit Split) — After Dismissing SLUSA-Precluded Claim, Remand Appropriate — Quasi-Appraisal — Good Quote

Michigan Issues Model Jury Instructions Prohibiting Jurors from Using Computers or PDAs to Search for Information About the Case

Protective / Confidentiality Orders — Factors Governing In-House Counsel’s Access to Highly Confidential Trade Secrets Disclosed in Discovery

Recent Articles

Inherent 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

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