Complex Lit Blog

Text Authentication by Absence of Messages at Times Alleged Sender Is Indisposed, Name & Phone Number on Messages, Consistency of Content with Events in Alleged Sender’s Life

Matter of Detention of H.N., 2015 Wash. App. LEXIS 1433 (Wash. Ct. App. July 6, 2015): H.N. appeals the order committing her to involuntary treatment. The trial court did not abuse its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that a medical expert used as part of her opinion testimony. ...

Privilege — Common Interest/Joint Defense — Existing Litigation Unnecessary — Party Asserting Privilege Need Not Put Forward Evidence Establishing the Details of a Joint Legal Strategy

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 2015 U.S. App. LEXIS 9602 (4th Cir. June 9, 2015): Finally, Azdel appeals the [*39] district court's denial of Azdel's motion to compel certain Crane documents that the district court deemed protected under the common interest privilege. We review factual findi ...

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 2015 U.S. App. LEXIS 9602 (4th Cir. June 9, 2015): Finally, Azdel appeals the [*39] district court's denial of Azdel's motion to compel certain Crane documents that the district court deemed protected under…

Rule 37 Sanctions — If Preclusion of Evidence in Practice Amounts to Dismissal of Claim, Willfulness, Bad Faith or Fault, and Other Prerequisites to Dismissal, Must Be Found

Toyrrific v. Karapetian, 2015 U.S. App. LEXIS 9170 (9th Cir. June 2, 2015): 2. However, the district court erred as a matter of law by excluding the damages evidence under Rule 37(c)(1). See R & R Sails, 673 F.3d at 1247. Here, excluding damages evidence was fatal to Toyrrific's claim. Appellees moved for summary ...

Inherent Power/§ 1927 Sanctions for Refusal to Sign Settlement & Prolonging Case — Attorney’s Fees Not Barred by Contract Provision — Abuse of Discretion (10th Cir.) — Good Quotes (Incl. Party’s “Diatribe”) — No Recusal for Judge’s Anger

Farmer v. Banco Popular of N. Am., 2015 U.S. App. LEXIS 11273 (10th Cir. June 30, 2015): This matter was previously before the Court on Plaintiff George Farmer's appeal from a district court order, in the nature of a mandatory injunction, directing Farmer to perform under the terms of a settlement agreement he reached with ...

Farmer v. Banco Popular of N. Am., 2015 U.S. App. LEXIS 11273 (10th Cir. June 30, 2015): This matter was previously before the Court on Plaintiff George Farmer's appeal from a district court order, in the nature of a mandatory …

Rule 11 — Suspension from Practice = “Nonmonetary” Sanction within 11(c)(4) — Bankruptcy Court Can Suspend — “Typical Federal Court Disposes of Hundreds of Cases Each Year—A Bankruptcy Court Disposes of Thousands” — Honesty Essential

In re Young (Young v Young), 2015 U.S. App. LEXIS 10158 (8th Cir. June 17, 2015): The bankruptcy court sanctioned attorney Kathy Cruz under Rule 9011 of the Federal Rules of Bankruptcy Procedure during her representation of a client, Jonathan Young. Cruz appeals the imposition of sanctions. For the reasons stated belo ...

In re Young (Young v Young), 2015 U.S. App. LEXIS 10158 (8th Cir. June 17, 2015): The bankruptcy court sanctioned attorney Kathy Cruz under Rule 9011 of the Federal Rules of Bankruptcy Procedure during her representation of a client, Jonathan …

Sanctions — Sloppy Argument and Overstatement ≠ Misrepresentation or Litigation Misconduct Punishable under Rule 11 and Form No Basis for Finding Patent Case Not Exceptional within 35 U.S.C. § 285

Gaymar Indus., Inc. v. Cincinnati Sub-Zero Prods., Inc., 2015 U.S. App. LEXIS 10736 (Fed. Cir. June 25, 2015): Cincinnati Sub-Zero Products, Inc. ("CSZ"), the prevailing party in this patent infringement case, appeals the district court's denial of attorney's fees under 35 U.S.C. § 285. In holding that this was not ...

Linked In Admissibility — Hearsay — Defendant’s Self-Description of Title on Own LinkedIn Page when Offered by Plaintiff Admitted Insofar As It Reflects Defendant’s Description of Role But Not for Truth That Defendant Actually Held Position

Music Grp. Macao Commercial Offshore Ltd. v. Foote, 2015 U.S. Dist. LEXIS 81415 (N.D. Cal. June 22, 2015): This case arises out of a cyber attack on the global computer network and communication systems of Plaintiff Music Group Macao Commercial Offshore Limited ("Music Group" or "Plaintiff"). Plaintiff asse ...

Music Grp. Macao Commercial Offshore Ltd. v. Foote, 2015 U.S. Dist. LEXIS 81415 (N.D. Cal. June 22, 2015): This case arises out of a cyber attack on the global computer network and communication systems of Plaintiff Music Group Macao Commercial …

Rule 11 & Ethical Precepts — Rhode Island Bars Anonymous Ghostwriting of Pleadings But Permits Representation Limited to Disclosed Assistance with Express Statement That Lawyer Is Not Appearing in the Action

FIA Card Servs., N.A. v. Pichette, 2015 R.I. LEXIS 79 (RI S.Ct. June 8, 2015): The appeals before us emanate from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro se defendants in three separate debt collection cases, a practice colloquially known as g ...

FIA Card Servs., N.A. v. Pichette, 2015 R.I. LEXIS 79 (RI S.Ct. June 8, 2015): The appeals before us emanate from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro …

Spoliation Sanctions — Three-Part Test for Adverse Inference Instruction in Tenth Circuit: Duty to Preserve, Prejudice, Bad Faith (Electronic Records Lost, Tangible Records Destroyed)

McCauley v. Board of Comm’rs for Bernalillo Cnty., 2015 U.S. App. LEXIS 3361 (10th Cir. Mar. 2, 2015): John R. McCauley appeals the district court's grant of summary judgment to the Board of Commissioners of Bernalillo County (Bernalillo County or County) on his employment discrimination and retaliation claims. McCauley, ...

McCauley v. Board of Comm’rs for Bernalillo Cnty., 2015 U.S. App. LEXIS 3361 (10th Cir. Mar. 2, 2015): John R. McCauley appeals the district court's grant of summary judgment to the Board of Commissioners of Bernalillo County (Bernalillo County or …

RICO Continuity — Mail Fraud Can Be Predicate But Mailings Don’t Create Continuity unless They’re False — At Least 1 Year Needed for Closed-End Continuity in 8th Circuit — Good Quotes on RICO Not Apt for Ordinary Commerical Fraud

Stonebridge Collection, Inc. v. Carmichael, 2015 U.S. App. LEXIS 10840 (8th Cir. June 26, 2015): The Stonebridge Collection, Inc., an engraver of promotional pocket knives, sued (1) former distributor Cutting-Edge USA, LLC and its members, Keith and Glenna Carmichael; (2) competitor knife engraver Taylormade Unlimited, LLC (TaylorMade ...

Commercial Litigation and Arbitration

Text Authentication by Absence of Messages at Times Alleged Sender Is Indisposed, Name & Phone Number on Messages, Consistency of Content with Events in Alleged Sender’s Life

Privilege — Common Interest/Joint Defense — Existing Litigation Unnecessary — Party Asserting Privilege Need Not Put Forward Evidence Establishing the Details of a Joint Legal Strategy

Rule 37 Sanctions — If Preclusion of Evidence in Practice Amounts to Dismissal of Claim, Willfulness, Bad Faith or Fault, and Other Prerequisites to Dismissal, Must Be Found

Inherent Power/§ 1927 Sanctions for Refusal to Sign Settlement & Prolonging Case — Attorney’s Fees Not Barred by Contract Provision — Abuse of Discretion (10th Cir.) — Good Quotes (Incl. Party’s “Diatribe”) — No Recusal for Judge’s Anger

Rule 11 — Suspension from Practice = “Nonmonetary” Sanction within 11(c)(4) — Bankruptcy Court Can Suspend — “Typical Federal Court Disposes of Hundreds of Cases Each Year—A Bankruptcy Court Disposes of Thousands” — Honesty Essential

Sanctions — Sloppy Argument and Overstatement ≠ Misrepresentation or Litigation Misconduct Punishable under Rule 11 and Form No Basis for Finding Patent Case Not Exceptional within 35 U.S.C. § 285

Linked In Admissibility — Hearsay — Defendant’s Self-Description of Title on Own LinkedIn Page when Offered by Plaintiff Admitted Insofar As It Reflects Defendant’s Description of Role But Not for Truth That Defendant Actually Held Position

Rule 11 & Ethical Precepts — Rhode Island Bars Anonymous Ghostwriting of Pleadings But Permits Representation Limited to Disclosed Assistance with Express Statement That Lawyer Is Not Appearing in the Action

Spoliation Sanctions — Three-Part Test for Adverse Inference Instruction in Tenth Circuit: Duty to Preserve, Prejudice, Bad Faith (Electronic Records Lost, Tangible Records Destroyed)

RICO Continuity — Mail Fraud Can Be Predicate But Mailings Don’t Create Continuity unless They’re False — At Least 1 Year Needed for Closed-End Continuity in 8th Circuit — Good Quotes on RICO Not Apt for Ordinary Commerical Fraud

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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