Complex Lit Blog

Text Authentication — Party Possessed Phone, Witness Texted Phone Number, Witness’s Cell Ties Number to Party’s Name, Party Acted Per Earlier Texts, Witness Called Number 6 Hours after Texts & Party Answered — Affirmed on Other Grounds

People v. Sissac, 2015 Cal. App. Unpub. LEXIS 1504 (Cal. Ct. App. Mar. 3, 2015): The San Diego County District Attorney charged Demetrius Sissac with first degree, special circumstance murder (Pen. Code, 187, subd. (a)) in connection with the October 30, 2011 shooting of taxicab driver Jalaludin Hamrah, alleging that ...

People v. Sissac, 2015 Cal. App. Unpub. LEXIS 1504 (Cal. Ct. App. Mar. 3, 2015): The San Diego County District Attorney charged Demetrius Sissac with first degree, special circumstance murder (Pen. Code, 187, subd. (a)) in connection with the October …

Sanctions — Rule 37(b)(2) and Inherent Power — Default Judgment Requires Willfulness, Bad Faith or Fault, Not Inability to Comply

Klein v. Harper, 2015 U.S. App. LEXIS 1839 (10th Cir. Feb. 4, 2015): Under Rule 37(b)(2), "a district court may issue sanctions, including default judgment against the disobedient party when a party disobeys a discovery order." Klein-Becker USA, LLC v. Englert, 711 F.3d 1153, 1159 (10th Cir. 2013) ( ...

Klein v. Harper, 2015 U.S. App. LEXIS 1839 (10th Cir. Feb. 4, 2015): Under Rule 37(b)(2), "a district court may issue sanctions, including default judgment against the disobedient party when a party disobeys a discovery order." Klein-Becker USA, LLC…

Spoliation — Adverse Inference Instruction Appropriate for Deactivation of Facebook Account Shortly after Initiating Lawsuit and Producing Only Substantially Illegible Printouts of Contents

Abeyta v City of N.Y., 2014 U.S. App. LEXIS 23480 (2d Cir. Dec. 15, 2014): Plaintiff Andrew Abeyta appeals from the District Court's November 22, 2013 judgment, after a jury trial, in favor of defendants on his claims for false arrest, excessive force, and First Amendment retaliation pursuant to 42 U.S.C. § 1983 and various state ...

YouTube Video of Defendant Rapping about Crimes Unfairly Prejudicial When Offered to Prove Intent or Motive to Participate in Different Sort of Crime Committed Many Months Later

People v. Foster, 2015 Mich. App. LEXIS 1012 (Mich. Ct. App. May 19, 2015): Defendant, Tamaine Lamanual Foster, appeals as of right his jury trial convictions of first-degree felony murder, MCL 750.316(1)(b); armed robbery, MCL 750.529; being a felon in possession of a firearm, MCL 750.224f; possession of a firearm during the commissi ...

LinkedIn Authentication: Merely Downloading Ostensible Social Media Profile and Offering It, without More, Fails to Authenticate It, Which Also Renders Its Contents Hearsay

Lindschei v. Natus Med. Inc., 2015 U.S. Dist. LEXIS 40255 (N.D. Ga. Mar. 30, 2015): Plaintiffs [*14] also object to the Court's consideration of exhibits attached to the declarations: a document purporting to be Plaintiff Blades's resume from Indeed.com (attached as Exhibit C to Rossi's declaration amd E ...

Lindschei v. Natus Med. Inc., 2015 U.S. Dist. LEXIS 40255 (N.D. Ga. Mar. 30, 2015): Plaintiffs [*14] also object to the Court's consideration of exhibits attached to the declarations: a document purporting to be Plaintiff Blades's resume from Indeed.com (attached…

Is the Cost of Bates Stamping Taxable under 28 U.S.C. § 1920? Circuit Split — Video Dep Fees Taxable If Incurred Close to Trial, for Unavailable Witnesses — Cost of Burning Docs onto Disk Taxable under 2008 Amendment

Azdel v C&D Zodiac, Inc., 2015 U.S. Dist. LEXIS 39329 (W.D. Va. Feb. 18, 2015): a. Videographer Fees C&D first seeks costs for obtaining video recordings of the depositions of witnesses who could not be subpoenaed and would not voluntarily come to trial. C&D requested videotaped depositions for three necessary ...

Azdel v C&D Zodiac, Inc., 2015 U.S. Dist. LEXIS 39329 (W.D. Va. Feb. 18, 2015): a. Videographer Fees C&D first seeks costs for obtaining video recordings of the depositions of witnesses who could not be subpoenaed and would not voluntarily…

“Witnesses Cannot Refuse to Answer Questions Merely Because They Choose Not to — There Is No Opt-Out Box on a Subpoena” — Judicial Options, from Pillow to Sledgehammer — Judge Must Actually Exercise Discretion — Good Quotes

Barnett v. Norman, 2015 U.S. App. LEXIS 5145 (9th Cir. Mar. 31, 2015): Prisoner Troas Barnett appeals a jury verdict that rejected his pro se § 1983 claims of excessive force by prison guards. On appeal and now with assistance of counsel, Barnett contends that the trial court abused its discretion by permitting three prisoner-witness ...

Rule 804(b)(6) — Hearsay Exception — Forfeiture by Wrongdoing — Applies to Conspirator A Who Didn’t Directly Procure Witness’s Unavailability Where Conspirator B Did So in Course & Scope of Conspiracy and Misconduct Was Reasonably Foreseeable

United States v. Cazares, 2015 U.S. App. LEXIS 7949 (9th Cir. May 14, 2015): A jury found defendants Fernando Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio Avila guilty of violating 18 U.S.C. § 241 by conspiring [*5] to intimidate African-American citizens in the Highland Park neighborhood of ...

RICO — Municipal Entities Immune: Not Able to Form Mens Rea, Not Liable for Treble Damages (Which Are at Least Partly Punitive) — Fact of Loss, Not Loss of Legal Entitlement, Sufficient to Show Conclusive Enough Damages

Gil Ramirez Grp., LLC v. Houston Independent Sch. Dist., 2015 U.S. App. LEXIS 8171 (5th Cir. May 18, 2015): This case, involving multiple causes of action based on allegations of bribery to procure construction contracts, was filed against Houston Independent School District ("HISD" or "the District"), form ...

Gil Ramirez Grp., LLC v. Houston Independent Sch. Dist., 2015 U.S. App. LEXIS 8171 (5th Cir. May 18, 2015): This case, involving multiple causes of action based on allegations of bribery to procure construction contracts, was filed against Houston Independent …

No Spoliation Unless Person Was on Notice That Evidence Was Potentially Relevant to Litigation Before It Was Destroyed

Salas v. Independent Elec. Contractors Inc., 2015 U.S. App. LEXIS 7957 (9th Cir. May 14, 2015): 7. The district court's finding of no spoliation is not clearly erroneous. Salas made no showing that IES or IEC destroyed [*4] evidence, much less that they engaged in such destruction because the evidence was potentially relevant t ...

Commercial Litigation and Arbitration

Text Authentication — Party Possessed Phone, Witness Texted Phone Number, Witness’s Cell Ties Number to Party’s Name, Party Acted Per Earlier Texts, Witness Called Number 6 Hours after Texts & Party Answered — Affirmed on Other Grounds

Sanctions — Rule 37(b)(2) and Inherent Power — Default Judgment Requires Willfulness, Bad Faith or Fault, Not Inability to Comply

Spoliation — Adverse Inference Instruction Appropriate for Deactivation of Facebook Account Shortly after Initiating Lawsuit and Producing Only Substantially Illegible Printouts of Contents

YouTube Video of Defendant Rapping about Crimes Unfairly Prejudicial When Offered to Prove Intent or Motive to Participate in Different Sort of Crime Committed Many Months Later

LinkedIn Authentication: Merely Downloading Ostensible Social Media Profile and Offering It, without More, Fails to Authenticate It, Which Also Renders Its Contents Hearsay

Is the Cost of Bates Stamping Taxable under 28 U.S.C. § 1920? Circuit Split — Video Dep Fees Taxable If Incurred Close to Trial, for Unavailable Witnesses — Cost of Burning Docs onto Disk Taxable under 2008 Amendment

“Witnesses Cannot Refuse to Answer Questions Merely Because They Choose Not to — There Is No Opt-Out Box on a Subpoena” — Judicial Options, from Pillow to Sledgehammer — Judge Must Actually Exercise Discretion — Good Quotes

Rule 804(b)(6) — Hearsay Exception — Forfeiture by Wrongdoing — Applies to Conspirator A Who Didn’t Directly Procure Witness’s Unavailability Where Conspirator B Did So in Course & Scope of Conspiracy and Misconduct Was Reasonably Foreseeable

RICO — Municipal Entities Immune: Not Able to Form Mens Rea, Not Liable for Treble Damages (Which Are at Least Partly Punitive) — Fact of Loss, Not Loss of Legal Entitlement, Sufficient to Show Conclusive Enough Damages

No Spoliation Unless Person Was on Notice That Evidence Was Potentially Relevant to Litigation Before It Was Destroyed

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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