Supplemental Jurisdiction — Legal Malpractice Claim

In Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 334-36 (2d Cir. 2006), the Second Circuit held that the District Court could exercise supplemental jurisdiction (28 U.S.C. § 1367) over a subsequent legal malpractice claim asserted against plaintiffs' counsel concerning their representation in a federal securities class action because "the present malplpractice claims and the underlying securities claims 'substantially overlap,' creating a common nucleu ...

Declaratory Judgment — Ripeness

The Supreme Court's decision yesterday in Medimmune, Inc. v. Genentech, Inc., No. 05-608 (U.S. Jan. 9, 2007), took a surprisingly liberal view of the ripeness of a dispute for case and controversy purposes. The case might be read as standing for the proposition that a party to a contract who is fully performing, but doesn't want to, can sue for a declaratory judgment that it need not perform further simply because, if it did stop performing, it could be sued by t ...

Protective Orders — 2000 Amendment to Rule 5(d)

An article entitled ‛The 2000 Amendments to the Federal Rules of Civil Procedure & Evidence: A Preliminary Analysis“ (available on the Recent Articles page) observes that the 2000 amendment to Federal Rule of Civil Procedure 5(d) undercut a prior rationale for public access to discovery materials because it precluded application of the ‛judicial record“ doctrine in most circumstances. In an interesting decision entered on November 14, 2006, Judge Gerard L ...

Attorney-Client Privilege/Work Product — Experts

The Sixth Circuit has largely ended the debate as to whether any communications between counsel and expert are protected from discovery. In Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 717 (6th Cir. 2006), it ruled that: ‛Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.“ Since the line of authority holding to the contrary traces back to the decision of a Dist ...

Summary Judgment — Rulemaking

On January 29, 2007, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York to address possible amendments to Rule 56. The concern is the perceived disparity between practice and the text of the rule. The most significant revision would require: (i) the moving party to file a statement of undisputed facts on which it is relying, (ii) the adversary to file a paragraph-by-paragraph response to each fact asserted ...

Attorney Client Privilege — Waiver — Rulemaking

The comment period for Proposed Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Waiver By Disclosure) ends on February 15, 2007. It is a very important rule that has four major components: (1) It articulates a test for determining the extent of subject matter waiver of privileged or work product material that is voluntarily disclosed. (2) It resolves a split in the Circuits as to whether ina ...

Sanctions — Discretion — Relevance of Movant’s Conduct

Yesterday, the Federal Circuit upheld a denial of sanctions by the Central District of California, reasoning that the District Court properly took into account the behavior of defense counsel in exercising its discretion not to sanction plaintiff's counsel: "[W]ith respect to the conduct of [plaintiff's] counsel in the litigation, the court observed that the conduct of both parties' counsel 'fell far short of a model prosecution and defense of a patent action, an ...

New NY State Ethics Rules Governing Websites

New York will have new ethics rules governing the contents of websites and advertisements effective February 1, 2007. They may be found at http://www.courts.state.ny.us/rules/attorney_ads_amendments.shtml. (GPJ) ...

Electronic Discovery — Metadata

The ABA Standing Committee on Ethics and Professional Responsibility has opined that it is generally permissible under the Model Rules to peel metadata out of documents received electronically. (Formal Opinion 06-442: Review and Use of Metadata (August 5, 2006).) Note that state ethics rules, which often vary from the Model Rules, may impose other obligations. For example, the New York State Bar Association Committee on Professional Ethics has opined that N.Y. ...

Class Action Fairness Act — Burden of Proof

On December 26, 2006, the Second Circuit joined the Seventh, Ninth and Eleventh in concluding that the defendant bears the burden of establishing federal subject matter jurisdiction under CAFA. It also remanded to the District Court for explicit findings as to how it calculated reasonably probable damages, given that the $5 million aggregated amount in controversy is jurisdictional. See Blockbuster, Inc. v. Galeno, 2006 U.S. App. LEXIS 31757 (2d Cir. Dec. 26, 20 ...

Experts – Rulemaking

On January 13, 2007, the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure will be meeting in Arizona to consider whether the expert witness rule -- specifically, Rule 26(a)(2)(B) -- should be amended (1) to protect drafts of expert reports from discovery, (2) to protect some or all communications between counsel and expert form discovery, (3) to require reports from treating physicians, and (4) to require reports from employ ...

The Four Most Significant Developments in Federal Practice in 2006

(1) The December 1, 2006 Electronic Discovery amendments to the Federal Rules of Civil Procedure and the increasing burden on outside counsel to monitor preservation and compliance. (2) Increasingly stringent class certification requirements culminating in the Second Circuit's decision in the IPO Securities Litigation on December 5, 2006 (In re Initial Public Offering Sec. Litig., 2006 U.S. App. LEXIS 29859 (2d Cir. Dec. 5, 2006)). (3) Increasing imp ...

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