Complex Lit Blog

2010 Expert Witness Amendments — Expert Communications with Non-Lawyer Client Employees and Agents ≠ Work Product — Sharing of Drafts with Client, Its Auditor ≠ Waiver — Documents Created by Non-Lawyers Privileged If Contain Advice of Counsel

United States v. Veolia Env’t N. Am. Operations, Inc., 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014): Pending before the Court is Petitioner United States of America's Motion to Enforce Internal Revenue Service ("IRS") Summonses against Veolia Environment North America Operations, Inc. ("Taxpayer"). (D ...

Date & Time Stamp on Voicemail, Like Header on Fax, ≠ Hearsay — Nor Is Voicemail Offered for Fact Statements Were Made — No Best Evidence Bar Where Provider Deleted Original — Witness Testimony OK; Maybe Copy, Too

Walker v. Asset Acceptance LLC, 2012 U.S. Dist. LEXIS 95128 (D.N.J. July 10, 2012): a. The Voicemail Message and Plaintiff's Testimony Are Not Hearsay "Hearsay" means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in eviden ...

Walker v. Asset Acceptance LLC, 2012 U.S. Dist. LEXIS 95128 (D.N.J. July 10, 2012): a. The Voicemail Message and Plaintiff's Testimony Are Not Hearsay "Hearsay" means a statement that (1) the declarant does not make while testifying at the current…

RICO — Operation and Management — Need to Show Degree of Cooperation Beyond Bounds of Normal Commercial Relationships — Test for Lower Level Participants: Fungible or Essential Role — Acting in Individual vs. Enterprise’s Interest

Nesbitt v. Regas, 2015 U.S. Dist. LEXIS 35552 (N.D. Ill. Mar. 20, 2015): Plaintiff Diane Goldring Nesbitt ("Goldring") brings this action against eleven defendants, alleging that each played a role in a fraudulent scheme that resulted in substantial losses to Goldring. She asserts violations [*2] of the Ra ...

RICO — Injury Must Flow from Investment of Racketeering Income under § 1962(a) and Be Caused by Acquisition of Interest under § 1962(b) — Allegation That Parent Is RICO Person and Sub is Enterprise ≠ Distinctiveness under § 1962(c)

N. Cypress Med. Ctr. Operating Co. v. CIGNA Healthcare, 2015 U.S. App. LEXIS 3711 (5th Cir. Mar. 10, 2015): This is a dispute over an insurer's obligation to pay a hospital for medical services provided to insured patients. Under the insurance plans, patients are to pay for part of their hospital bills and [*2] ...

Experts — Differential Diagnosis Is OK under Daubert, But Expert Cannot Neglect to Consider a Potentially Explanatory Hypothesis — Elimination of Potential Causes Must Be Founded on More Than Subjective Belief or Speculation (Good Quote)

Nelson v. Matrixx Initiatives, Inc., 2015 U.S. App. LEXIS 1620 (9th Cir. Feb. 2, 2015): In a toxic tort case in California, a plaintiff must show both general causation, which is "that the substance at issue was capable of causing the injury alleged," and specific causation, which is "that the substance caused, or was ...

Rule 37 Sanctions — Default Judgment Drastic But Useful If Confronted with “Obstructionist Adversary” — Abuse of Discretion Standard “Not Appellant-Friendly” (Good Quotes) — 1st Circuit Rule 37 Factors

Angiodynamics, Inc. v. Biolitec AG, 2015 U.S. App. LEXIS 3802 (1st Cir. Mar. 11, 2015): In this appeal, Defendants challenge the district court's exercise of personal jurisdiction over certain defendants, the denial of their motions to dismiss, and the entry of default judgment and a damages award against them as a sanction for di ...

Facebook: Defendant’s Posting Communications to Victim, Not a Facebook Friend, on His Own Public Notes Page = Stalking, Witness Tampering, Violated TRO Barring Contact with Victim — Fact Victim Voluntarily Accessed Notes No Defense

State v. Craig, 2015 N.H. LEXIS 13 (N.H. Sup. Ct. Feb. 12, 2015): Following a jury trial in Superior Court (Delker, J.), the defendant, Brian Craig, was convicted on one count of criminal threatening, RSA 631:4 (Supp. 2014); one count of witness tampering, RSA 641:5 (2007); and one count of stalking, RSA ...

State v. Craig, 2015 N.H. LEXIS 13 (N.H. Sup. Ct. Feb. 12, 2015): Following a jury trial in Superior Court (Delker, J.), the defendant, Brian Craig, was convicted on one count of criminal threatening, RSA 631:4 (Supp. 2014); one count …

Instant Message Authenticated by Proof of Person’s Screen Name and Reply Letter Doctrine, Plus No Evidence Anyone Had Motive or Opportunity to Impersonate — Voicemail Authenticated by Witness Who Recognizes Voice

People v. Pierre, 41 A.D.3d 289,; 838 N.Y.S.2d 546 (1st Dept.), appeal denied, 9 NY3d 880, 874 NE2d 759, 842 NYS2d 792 (2007): Judgment, Supreme Court, New York County (James A. Yates, J.), rendered May 12, 2005, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 year ...

Wayback Machine — Authenticating Affidavit from Internet Archive Employee Sufficient to Raise Genuine Issue of Material Fact as to When Image First Published

Foster v. Rodriguez, 2015 U.S. Dist. LEXIS 22590 (S.D.N.Y. Feb. 25, 2016): The question, then, is whether there is a genuine dispute of material fact as to when the photograph was first published. Defendants offer Lee's declaration and a supplemental internet search as evidence that the photograph appeared on one of Lashp ...

Foster v. Rodriguez, 2015 U.S. Dist. LEXIS 22590 (S.D.N.Y. Feb. 25, 2016): The question, then, is whether there is a genuine dispute of material fact as to when the photograph was first published. Defendants offer Lee's declaration and a supplemental …

Rule 68 Offer of Judgment — In Second Circuit, Offer Moots Case If Court Enters Judgment in Plaintiff’s Favor Per Offer or Otherwise Enforces Offer’s Terms — Defendant Can Move to Enter Mooting Judgment over Plaintiff’s Objection

Nicholson v. Allied Interstate, LLC, 2015 U.S. Dist. LEXIS 29043 (E.D.N.Y. Mar. 10, 2015): Plaintiff Richard Nicholson ("plaintiff") brings this action against Allied Interstate, LLC ("Allied") and iQor, Inc. ("iQor") (collectively, "defendants"), asserting claims under the Fair Debt Collection ...

Commercial Litigation and Arbitration

2010 Expert Witness Amendments — Expert Communications with Non-Lawyer Client Employees and Agents ≠ Work Product — Sharing of Drafts with Client, Its Auditor ≠ Waiver — Documents Created by Non-Lawyers Privileged If Contain Advice of Counsel

Date & Time Stamp on Voicemail, Like Header on Fax, ≠ Hearsay — Nor Is Voicemail Offered for Fact Statements Were Made — No Best Evidence Bar Where Provider Deleted Original — Witness Testimony OK; Maybe Copy, Too

RICO — Operation and Management — Need to Show Degree of Cooperation Beyond Bounds of Normal Commercial Relationships — Test for Lower Level Participants: Fungible or Essential Role — Acting in Individual vs. Enterprise’s Interest

RICO — Injury Must Flow from Investment of Racketeering Income under § 1962(a) and Be Caused by Acquisition of Interest under § 1962(b) — Allegation That Parent Is RICO Person and Sub is Enterprise ≠ Distinctiveness under § 1962(c)

Experts — Differential Diagnosis Is OK under Daubert, But Expert Cannot Neglect to Consider a Potentially Explanatory Hypothesis — Elimination of Potential Causes Must Be Founded on More Than Subjective Belief or Speculation (Good Quote)

Rule 37 Sanctions — Default Judgment Drastic But Useful If Confronted with “Obstructionist Adversary” — Abuse of Discretion Standard “Not Appellant-Friendly” (Good Quotes) — 1st Circuit Rule 37 Factors

Facebook: Defendant’s Posting Communications to Victim, Not a Facebook Friend, on His Own Public Notes Page = Stalking, Witness Tampering, Violated TRO Barring Contact with Victim — Fact Victim Voluntarily Accessed Notes No Defense

Instant Message Authenticated by Proof of Person’s Screen Name and Reply Letter Doctrine, Plus No Evidence Anyone Had Motive or Opportunity to Impersonate — Voicemail Authenticated by Witness Who Recognizes Voice

Wayback Machine — Authenticating Affidavit from Internet Archive Employee Sufficient to Raise Genuine Issue of Material Fact as to When Image First Published

Rule 68 Offer of Judgment — In Second Circuit, Offer Moots Case If Court Enters Judgment in Plaintiff’s Favor Per Offer or Otherwise Enforces Offer’s Terms — Defendant Can Move to Enter Mooting Judgment over Plaintiff’s Objection

Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

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