Complex Lit Blog

Text Authentication — Testimony That Child Called D “Godfather,” That Child’s Phone Id’d Texts as from Godfather, And That D Gave Child Phone Authenticate Texts as Sent by D (Who Didn’t Deny Sending) — Texts as 801(e) Admissions

Campos v. State, 2015 Tex. App. LEXIS 230 (Tex. Ct. App. Jan. 13, 2015): The State called M.N., and, before she testified, the prosecutor informed the trial court that she would testify about text messages C.G.J. had received [*6] from appellant. [M.N. was 10-year-old C.G.J.’s aunt, with whom he l ...

Campos v. State, 2015 Tex. App. LEXIS 230 (Tex. Ct. App. Jan. 13, 2015): The State called M.N., and, before she testified, the prosecutor informed the trial court that she would testify about text messages C.G.J. had received [*6] from …

Internet Evidence — Chats May Be Admissible for Non-Hearsay Purposes of Showing State of Mind, Intent, Knowledge, Absence Mistake and Associating Owner with Material on His or Her Computer

United States v. DeFoggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014): C. Motion in Limine DeFoggi's Motion in Limine seeks to prevent the government from referencing the "fantasy chat private messages sent to and from" particular usernames from Website A, arguing the messages are irrelevan ...

United States v. DeFoggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014): C. Motion in Limine DeFoggi's Motion in Limine seeks to prevent the government from referencing the "fantasy chat private messages sent to and from" particular usernames…

Rule 37 Sanctions — Optional Preclusion for Untimely Disclosure of Evidence — Offending Party May Not Offer It Initially, But Opponent May; If So, Offender May Then Use It, Too — Good Quote on Too Many Supposed Mistakes to Be Plausible

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 2. Sanctions Defendants ask the Court to sanction Plaintiffs for late disclosure of three videos -- two videos of the arrest incident made by bystanders, and one video of Casey Bryntesen calling Scott Grumbl ...

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 2. Sanctions Defendants ask the Court to sanction Plaintiffs for late disclosure of three videos — two videos of the arrest incident made by bystanders,…

Expert Report Dictated to Counsel, Who Prepared and Signed It, Not Excluded — Counsel as Scrivener — Absence of Expert’s Signature Insufficient to Preclude Report or Testimony

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 3. Expert James Bower Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any expert witness. The disclosure "must be accompanied by a written report -- prepared and signed by t ...

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015): 3. Expert James Bower Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of any expert witness. The disclosure "must be …

Sales of Securities of U.S. Issuers by U.S. Market Makers = Domestic Transactions under Morrison — Point of Irrevocable Liability Is Key — OTCBB, Pink Sheets ≠ National Exchanges — Wire Fraud Statute Applies Extraterriorially

United States v. Georgiou, 2015 U.S. App. LEXIS 832 (3d Cir. Jan. 20, 2015): A federal jury convicted Appellant George Georgiou ("Appellant" or "Georgiou") of conspiracy, securities fraud, and wire fraud for his participation in planned manipulation of the markets of four publicly traded stocks, resulting in more t ...

Daubert — No Hearing Necessary Where Court Has Available Testimony from Same Witness on Nearly Identical Issue from Another Proceeding — No Need to Renew Objection at Trial If Court Issues Definitive Ruling on In Limine Motion

United States v. Rodriguez, 2015 U.S. App. LEXIS 840 (11th Cir. Jan. 21, 2015): We have previously held that the overruling of a motion in limine does not preserve an evidentiary issue for appeal. United States v. Rutkowski, 814 F.2d 594, 598 (11th Cir. 1987) (per curiam). Rather, an objection at trial is req ...

United States v. Rodriguez, 2015 U.S. App. LEXIS 840 (11th Cir. Jan. 21, 2015): We have previously held that the overruling of a motion in limine does not preserve an evidentiary issue for appeal. United States v. Rutkowski, 814 F.2d…

Appeals: To What Extent Is Fed. R. Civ. P. 60(b)(6) Available As a Means of Providing Relief to Someone Who Missed the Appellate Deadlines in Rules 4(a)(1) and 4(a)(5) — I.e., As an End Around Bowles? Circuit Split

Tanner v. Yukins, 2015 U.S. App. LEXIS 837 (6th Cir. Jan. 20, 2015): The Federal Rules of Appellate Procedure establish the deadlines that govern filings in this court. See Fed R. App. P. 1(a)(1). When a party is properly notified of a judgment, Rule 4(a)(1)(A) provides the party with 30 days to appe ...

Even If Court Generally Must Dismiss, Not Stay, an Action upon Compelling Arbitration (There Is a Circuit Split on the Dismiss-vs.-Stay Question), When Arbitration Is Compelled to Determine Arbitrability, Then Only a Stay Is Apt

Mercadante v. XE Servs., LLC, 2015 U.S. Dist. LEXIS 4686 (D.D.C. Jan. 15, 2015): The Court need not resolve the question of whether the Court would dismiss the case if it were compelling arbitration on all of the substantive claims in this action. Compare White v. Four Seasons Hotels & Resorts, 999 F. Supp. 2d 250, 261-62 (D.D.C. ...

On Rule 60(b)(4) Motion to Vacate Default Judgment for Improper Service, Who Bears Burden of Proving/Disproving Effective Service? Circuit Split

Myers v. Moore, 2014 U.S. Dist. LEXIS 176409 (E.D. Pa. Dec. 22, 2014): III. RULE 60(b)(4) Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) because they were not prop ...

Myers v. Moore, 2014 U.S. Dist. LEXIS 176409 (E.D. Pa. Dec. 22, 2014): III. RULE 60(b)(4) Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) …

Texts Insufficiently Authenticated by Proof Cell Was Found in Common Area of Apartment Defendant Temporarily Lived in and Texts Contained His First Name — Circumstantial Evidence Inadequate to Permit Jury to Link Cell to Him

People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015): [*P1] After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) and was sentenced to eight years in prison.

People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015): [*P1] After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) …

Commercial Litigation and Arbitration

Text Authentication — Testimony That Child Called D “Godfather,” That Child’s Phone Id’d Texts as from Godfather, And That D Gave Child Phone Authenticate Texts as Sent by D (Who Didn’t Deny Sending) — Texts as 801(e) Admissions

Internet Evidence — Chats May Be Admissible for Non-Hearsay Purposes of Showing State of Mind, Intent, Knowledge, Absence Mistake and Associating Owner with Material on His or Her Computer

Rule 37 Sanctions — Optional Preclusion for Untimely Disclosure of Evidence — Offending Party May Not Offer It Initially, But Opponent May; If So, Offender May Then Use It, Too — Good Quote on Too Many Supposed Mistakes to Be Plausible

Expert Report Dictated to Counsel, Who Prepared and Signed It, Not Excluded — Counsel as Scrivener — Absence of Expert’s Signature Insufficient to Preclude Report or Testimony

Sales of Securities of U.S. Issuers by U.S. Market Makers = Domestic Transactions under Morrison — Point of Irrevocable Liability Is Key — OTCBB, Pink Sheets ≠ National Exchanges — Wire Fraud Statute Applies Extraterriorially

Daubert — No Hearing Necessary Where Court Has Available Testimony from Same Witness on Nearly Identical Issue from Another Proceeding — No Need to Renew Objection at Trial If Court Issues Definitive Ruling on In Limine Motion

Appeals: To What Extent Is Fed. R. Civ. P. 60(b)(6) Available As a Means of Providing Relief to Someone Who Missed the Appellate Deadlines in Rules 4(a)(1) and 4(a)(5) — I.e., As an End Around Bowles? Circuit Split

Even If Court Generally Must Dismiss, Not Stay, an Action upon Compelling Arbitration (There Is a Circuit Split on the Dismiss-vs.-Stay Question), When Arbitration Is Compelled to Determine Arbitrability, Then Only a Stay Is Apt

On Rule 60(b)(4) Motion to Vacate Default Judgment for Improper Service, Who Bears Burden of Proving/Disproving Effective Service? Circuit Split

Texts Insufficiently Authenticated by Proof Cell Was Found in Common Area of Apartment Defendant Temporarily Lived in and Texts Contained His First Name — Circumstantial Evidence Inadequate to Permit Jury to Link Cell to Him

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