Complex Lit Blog

Electronic Spoliation — Third Circuit Definition (Unaffected by 37(e)) — Deletion of Email Account in Ordinary Course Long Before Litigation Threatened ≠ Spoliation

Archer v. York City School Dist., 2017 U.S. App. LEXIS 18636 (3d Cir. Sept. 27, 2017): * This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. This case arises from the decision of the Board of Directors ("the Board") for t ...

Good Quotes on Evidence: Experts/Daubert, Rule 403, Credibility, Hearsay — Also Sufficiency of Objections to Preserve Error — All Summarized Up Front

These are good quotes from the following case (highlighted in the text of the case, below): Lang never raised the *** objection specifically***. The district court was not obligated to do Lang's work for her. Counsel does not preserve an objection simply by making a vague, global objection that ev ...

These are good quotes from the following case (highlighted in the text of the case, below): Lang never raised the *** objection specifically***. The district court was not obligated to do Lang's work for her. Counsel does not preserve an …

Rule 37(c)(1) Sanctions: If Exclusion = Dismissal, Must Consider Lesser Sanctions — 37(b) + 37(c)(1) Factors — Meaning of Abuse of Discretion (10th Cir.); Court Must Explain Decision—If Fees Awarded after Appeal Noticed, Must Notice Again or Amend

HCG Platinum, LLC v. Preferred Prod. Placement Corp., 2017 U.S. App. LEXIS 20229 (10th Cir. Oct. 17, 2017): HCG Platinum, LLC ("HCG") and Preferred Product Placement Corporation ("PPPC") entered into a Manufacturer's Representative Agreement ("Marketing Agreement"), under which PPPC agreed to plac ...

Evidence: That Testimony Is Self-Serving Is No Reason to Exclude It — Production of Emails by Adversary Authenticates Them for for Summary Judgment — A Declaration Stating How Doc Will Be Authenticated for Trial Sufficent on SJ

Johnson v. Cameron Int’l Corp., 2017 U.S. Dist. LEXIS 135794 (S.D. Tex. Aug. 24, 2017): Pending before the court are (1) plaintiff Cameron International Corporation's ("Cameron") motion for summary judgment (Dkt. 14), and (2) Cameron's objections to plaintiff Willie Johnson's summary judgment evidence (Dkt. 17) ...

Blog Admissibility & Authentication — Use of 28 U.S.C. § 1782 for Document Discovery into Identity of Blogger and Testimony Sufficient to Authenticate Blog Posts

In re Ex Parte Application of Darmon, 2017 WL 3283969 (N.D. Cal. Aug. 2, 2017): ORDER GRANTING EX PARTE APPLICATION FOR ORDER TO OBTAIN DISCOVERY FOR USE IN FOREIGN PROCEEDINGS Re: Dkt. No. 1 *1 Applicant Raphael Darmon (“Darmon”) filed an ex parte application seeking permission to issue a ...

In re Ex Parte Application of Darmon, 2017 WL 3283969 (N.D. Cal. Aug. 2, 2017): ORDER GRANTING EX PARTE APPLICATION FOR ORDER TO OBTAIN DISCOVERY FOR USE IN FOREIGN PROCEEDINGS Re: Dkt. No. 1 *1 Applicant Raphael Darmon (“Darmon”) filed…

RICO Extraterritoriality: Injury to Tangible Property, Including Cash in Bank & Bearer Shares of Foreign Entity in Safety Deposit Box, Is Domestic If Located in US, Even If Plaintiff Lives Abroad — Theft of Shares vs. Decline in Value

Bascuñán v. Elsaca, 2017 U.S. App. LEXIS 21519 (2d Cir. Oct. 30, 2017): The question presented in this appeal is whether the plaintiffs have plausibly alleged "a domestic injury ...

Bascuñán v. Elsaca, 2017 U.S. App. LEXIS 21519 (2d Cir. Oct. 30, 2017): The question presented in this appeal is whether the plaintiffs have plausibly alleged "a domestic injury" to their business or property within the meaning of Section …

Securities — Does LIFO or FIFO Apply in the Section 11 Traceability Context? — Since LIFO Is Used to Calculate Losses, Court Use It to Determine Traceability (First Impression)

In re LendingClub Secs. Litig.. 2017 U.S. Dist. LEXIS 174208 (N.D. Cal. )ct. 20, 2017): ORDER RE CLASS CERTIFICATION INTRODUCTION In this PSLRA ...

In re LendingClub Secs. Litig.. 2017 U.S. Dist. LEXIS 174208 (N.D. Cal. )ct. 20, 2017): ORDER RE CLASS CERTIFICATION INTRODUCTION In this PSLRA action, lead plaintiff moves for class certification and to enjoin a parallel state action. Class representatives…

Avoidance of Rule 11 Sanctions by Withdrawing Complaint During Safe Harbor Period Does Not Insulate Party from Exceptional Case Fees under 35 U.S.C. § 285 (Patent Cases)

Rothschild Connected Devices Innovations, LLC v. Guardian Protection Servs., Inc., 2017 U.S. App. LEXIS 9876 (Fed. Cir. June 5, 2017): Appellant ADS Security, L.P. ("ADS") appeals the opinion and order of the U.S. District Court for the Eastern District of Texas ("District Court") denying ADS's request for ...

Rule 37(c) Exclusion of Evidence Not Disclosed until SJ — If Exclusion = Dismissal, Willfulness Needed— Affidavit Based on Personal Knowledge “Or Believed to Be True” Based on Records & Discussions Does Not Create a Fact Questiion at SJ

BWP Media USA Inc. v. Urbanity, LLC, 2017 U.S. App. LEXIS 10784 (9th Cir. June 19, 2017): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff-appellant BWP Media USA Inc. (BWP) appeals the district court's order excluding evidence as ...

§ 1927 Sanctions OK for “Objective Bad Faith” — Appellate Jurisdiction Exists for Dismissal without Prejudice Based on Arbitration Clause or Forum Non Conveniens Because It Is Final as to Federal Court, as Opposed to the Other Forum

Hunt v. Moore Bros., Inc., 2017 U.S. App. LEXIS 11607 (7th Cir. June 29, 2017): James Hunt worked as a truck driver in Nebraska. On July 1, 2010, he signed an Independent Contractor Operating Agreement with Moore Brothers, a small company located in Norfolk, Nebraska. Three years later, Hunt and Moore renewed the Agreement. Before the ...

Commercial Litigation and Arbitration

Electronic Spoliation — Third Circuit Definition (Unaffected by 37(e)) — Deletion of Email Account in Ordinary Course Long Before Litigation Threatened ≠ Spoliation

Good Quotes on Evidence: Experts/Daubert, Rule 403, Credibility, Hearsay — Also Sufficiency of Objections to Preserve Error — All Summarized Up Front

Rule 37(c)(1) Sanctions: If Exclusion = Dismissal, Must Consider Lesser Sanctions — 37(b) + 37(c)(1) Factors — Meaning of Abuse of Discretion (10th Cir.); Court Must Explain Decision—If Fees Awarded after Appeal Noticed, Must Notice Again or Amend

Evidence: That Testimony Is Self-Serving Is No Reason to Exclude It — Production of Emails by Adversary Authenticates Them for for Summary Judgment — A Declaration Stating How Doc Will Be Authenticated for Trial Sufficent on SJ

Blog Admissibility & Authentication — Use of 28 U.S.C. § 1782 for Document Discovery into Identity of Blogger and Testimony Sufficient to Authenticate Blog Posts

RICO Extraterritoriality: Injury to Tangible Property, Including Cash in Bank & Bearer Shares of Foreign Entity in Safety Deposit Box, Is Domestic If Located in US, Even If Plaintiff Lives Abroad — Theft of Shares vs. Decline in Value

Securities — Does LIFO or FIFO Apply in the Section 11 Traceability Context? — Since LIFO Is Used to Calculate Losses, Court Use It to Determine Traceability (First Impression)

Avoidance of Rule 11 Sanctions by Withdrawing Complaint During Safe Harbor Period Does Not Insulate Party from Exceptional Case Fees under 35 U.S.C. § 285 (Patent Cases)

Rule 37(c) Exclusion of Evidence Not Disclosed until SJ — If Exclusion = Dismissal, Willfulness Needed— Affidavit Based on Personal Knowledge “Or Believed to Be True” Based on Records & Discussions Does Not Create a Fact Questiion at SJ

§ 1927 Sanctions OK for “Objective Bad Faith” — Appellate Jurisdiction Exists for Dismissal without Prejudice Based on Arbitration Clause or Forum Non Conveniens Because It Is Final as to Federal Court, as Opposed to the Other Forum

Recent Posts

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

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