Complex Lit Blog

Authentication — Failure to Link Party to Russian Facebook Page Requires Exclusion — Assertion of Identity on Page Inadequate — Second Circuit Skeptical That Greater Scrutiny Should Be Applied to Internet Evidence

United States v. Zhyltsou, 2014 U.S. App. LEXIS 18927 (2d Cir. Oct. 3, 2014): Defendant-Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false identification document, [*2] the government offered into evidence a printed copy of a web page, which it claimed was Zhyltsou's profile page ...

United States v. Zhyltsou, 2014 U.S. App. LEXIS 18927 (2d Cir. Oct. 3, 2014): Defendant-Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false identification document, [*2] the government offered into evidence a printed copy of …

Circumstantial Authentication of Text [or Email] Evidence — Testimony That Person Said He’d Send Text and Text Was Then Received from His Account is Sufficient — Social Media Authentication by Testimonial Stip

People v. Harris, 2014 Cal. App. Unpub. LEXIS 7086 (Cal. Ct. App. Oct. 1, 2014): D. Failure to Object to Inadequately Authenticated Electronic Evidence 1. Background The prosecution's evidence included the following items derived from electronic messages or material posted ...

People v. Harris, 2014 Cal. App. Unpub. LEXIS 7086 (Cal. Ct. App. Oct. 1, 2014): D. Failure to Object to Inadequately Authenticated Electronic Evidence 1. Background The prosecution's evidence included the following items derived from electronic messages or material posted…

Authentication of YouTube Videos Posted on Facebook Page by 902(11) Certifications of Records Custodians from Both Companies — Rule of Completeness Admits Otherwise Excluded Statements re Videos Only If Hearsay Rule Satisfied

United States v. Hassan, 742 F.3d 104 (4th Cir. 2014): The appellants in these consolidated proceedings, Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen [**2] Sherifi, were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorism activities. On appeal, the trio presents myriad ...

RICO — Fraudulent Mortgage Assignment and Fraud on Court in Bringing Mortgage Action, Not Underlying Default on Mortgage, Caused Injury in Form of Attorney’s Fees, Sustaining RICO Action

Slorp v. Lerner, Sampson & Rothfuss, 2014 U.S. App. LEXIS 18816 (6th Cir. Sept. 29, 2014): This case relates to alleged misconduct in a separate state-court foreclosure action. The law firm of Lerner, Sampson & Rothfuss (LSR) filed that foreclosure action against Rick Slorp on behalf of its client, Bank of America. Because Countrywide ...

Judicial Notice of Internet Evidence — 2014 Search of Whitepages.com ≠ Indisputable Evidence of What a 2008 Search Would’ve Shown

People v. McClellan, 2014 Ill. App. Unpub. LEXIS 2116 (Ill. Ct. App. Sept. 24, 2014): On July 24, 2012, defendant, Eric McClellan, filed a pro se postconviction petition, alleging, in part, his trial counsel and appellate counsel provided him ineffective assistance. *** On appeal, defendant argues the trial court erred in summa ...

Do State or Federal Claim Preclusion (Res Judicata) Principles Determine the Effect of Unreviewed State Administrative Agency Factfinding? Circuit Split

Morris v. City of Trenton, 2014 U.S. Dist. LEXIS 136003 (D.N.J. Sept. 26, 2014): 2. Res Judicata The Supreme Court has definitively stated that the notion of full faith and credit (codified at 28 U.S.C. § 1738) "requires that state-court judgments be given both issue and claim preclusive ...

Morris v. City of Trenton, 2014 U.S. Dist. LEXIS 136003 (D.N.J. Sept. 26, 2014): 2. Res Judicata The Supreme Court has definitively stated that the notion of full faith and credit (codified at 28 U.S.C. § 1738) "requires that state-court…

Daubert — Shaky but Admissible Evidence Is to Be Attacked by Cross-Examination, Contrary Evidence, and Attention to the Burden of Proof, Not Exclusion — Good Quotes on Weight vs. Admissibility

City of Pomona v. SQM N.Am. Corp., 750 F.3d 1036 (9th Cir. 2014), pet’n for cert. pending: After excessive levels of the chemical perchlorate were found in a city's water system, the city undertook to investigate the source of that contamination and remediate. Using a methodology known as "stable isotope analysis,& ...

Email Evidence — The Admissibility of Emails as Business Records “Is Not a Clear-Cut Issue” — Email Created within a Business Entity Does Not, for That Reason Alone, Satisfy the Business Records Exception — Good Quotes

Kloeckner v Perez, 2014 U.S. Dist. LEXIS 138009 (E.D. Mo. Sept. 30, 2014): Plaintiff objects to the admission of these exhibits "because they relate to actions taken after Plaintiff left the Department and after S. Eischen, S. Newman, and G. Newman were aware of Plaintiff's EEO compliant to include allegations of gender discr ...

Sanctions — Discretion Narrows as Severity of Sanction Increases — Rule 37 Dismissal or Default: Eighth Circuit Standards — Rule 41 Dismissal: Dilatory Conduct Attributable Solely to Counsel Less Worthy of Dismissal with Prejudice

Bergstrom v. Frascone, 744 F.3d 571 (8th Cir. 2014): James Bergstrom filed suit claiming malicious prosecution and violations of his civil rights. After numerous delays drawing out the discovery period for eighteen months, [**2] Bergstrom's attorney failed to comply with a court ordered deadline to submit answers to written disc ...

Does Appeal of Arbitrability Decision Divest District Court of Jurisdiction over Underlying Claims? Circuit Split — Appeal to District Court of Bankruptcy Court Arbitrability Decision Results in Automatic Stay of Bankruptcy Proceedings

Vanderbilt Mortg. & Fin., Inc. v. Lucas, 2014 U.S. Dist. LEXIS 116974 (S.D. W.Va. Aug. 22, 2014): The issue before the Court is whether an appeal to the district court, following a bankruptcy court's denial of a motion to compel arbitration, results in an automatic stay of those bankruptcy court proceedings. The Fourth Circuit C ...

Commercial Litigation and Arbitration

Authentication — Failure to Link Party to Russian Facebook Page Requires Exclusion — Assertion of Identity on Page Inadequate — Second Circuit Skeptical That Greater Scrutiny Should Be Applied to Internet Evidence

Circumstantial Authentication of Text [or Email] Evidence — Testimony That Person Said He’d Send Text and Text Was Then Received from His Account is Sufficient — Social Media Authentication by Testimonial Stip

Authentication of YouTube Videos Posted on Facebook Page by 902(11) Certifications of Records Custodians from Both Companies — Rule of Completeness Admits Otherwise Excluded Statements re Videos Only If Hearsay Rule Satisfied

RICO — Fraudulent Mortgage Assignment and Fraud on Court in Bringing Mortgage Action, Not Underlying Default on Mortgage, Caused Injury in Form of Attorney’s Fees, Sustaining RICO Action

Judicial Notice of Internet Evidence — 2014 Search of Whitepages.com ≠ Indisputable Evidence of What a 2008 Search Would’ve Shown

Do State or Federal Claim Preclusion (Res Judicata) Principles Determine the Effect of Unreviewed State Administrative Agency Factfinding? Circuit Split

Daubert — Shaky but Admissible Evidence Is to Be Attacked by Cross-Examination, Contrary Evidence, and Attention to the Burden of Proof, Not Exclusion — Good Quotes on Weight vs. Admissibility

Email Evidence — The Admissibility of Emails as Business Records “Is Not a Clear-Cut Issue” — Email Created within a Business Entity Does Not, for That Reason Alone, Satisfy the Business Records Exception — Good Quotes

Sanctions — Discretion Narrows as Severity of Sanction Increases — Rule 37 Dismissal or Default: Eighth Circuit Standards — Rule 41 Dismissal: Dilatory Conduct Attributable Solely to Counsel Less Worthy of Dismissal with Prejudice

Does Appeal of Arbitrability Decision Divest District Court of Jurisdiction over Underlying Claims? Circuit Split — Appeal to District Court of Bankruptcy Court Arbitrability Decision Results in Automatic Stay of Bankruptcy Proceedings

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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