Complex Lit Blog

Good Cause to Modify Scheduling Order under Rule 16(b)(4) “Primarily Considers the Diligence of the Party Seeking the Amendment” — Absent Diligence, the Inquiry Should End

Hall v. City of Fairfield, 2011 U.S. Dist. LEXIS 146444 (E.D. Cal. Dec. 19, 2011): Defendants move for an order "authoriz[ing] the disclosure of a supplemental expert witness" in this case. (Mot. 2:4-5, ECF No. 68.) Defendants seek in this motion to "amend[] the prior Pretrial Order and allow both parties to disclose v ...

Text Messages — Circumstantial Evidence of Authenticity: Reference to Matters Unlikely to Be Known to Anyone Other Than the Person Claimed to Be the Author

People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were not sufficiently authenticated. We review the trial court's order ad ...

People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014): Text Messages Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were…

Sanctions — Dismissal/Default as Proper Penalty for Perjury, But Insufficient When Meritless Case Based only on the Perjury — Referral to Prosecutor, Potential Vexatious Litigant Injunction, Too, for Serial Perjurer

Rivera v. Drake, 2014 U.S. App. LEXIS 17173 (7th Cir. Sept. 3, 2014): Contending that a guard at his prison had sexually assaulted him during a pat-down by inserting a finger in his anus, Natanael Rivera filed this suit under 42 U.S.C. §1983 seeking damages. Michael Drake, the guard, asked the court to dismiss the suit because Rivera ...

Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should not have been granted< ...

Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014): 2. The Interaction Between the Daubert and Summary Judgment Rulings We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should …

Does a Non-Party’s Invocation of Fifth Amendment Give Rise to Adverse Inference? — Factors — Trial Court’s Reversal of Position on Issue OK: “Courts Are Free to Change Their Minds” (Good Quote)

Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's evidentiary rulings for an abuse of discretion. [*17]

Coquina Investments v. TD Bank, N.A., 2014 U.S. App. LEXIS 14388 (11th Cir. July 29, 2014): B. Evidentiary rulings TD Bank argues that the district court made several evidentiary errors that require a new trial. We review a district court's…

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 ...

Commercial Litigation and Arbitration

Good Cause to Modify Scheduling Order under Rule 16(b)(4) “Primarily Considers the Diligence of the Party Seeking the Amendment” — Absent Diligence, the Inquiry Should End

Text Messages — Circumstantial Evidence of Authenticity: Reference to Matters Unlikely to Be Known to Anyone Other Than the Person Claimed to Be the Author

Sanctions — Dismissal/Default as Proper Penalty for Perjury, But Insufficient When Meritless Case Based only on the Perjury — Referral to Prosecutor, Potential Vexatious Litigant Injunction, Too, for Serial Perjurer

Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Does a Non-Party’s Invocation of Fifth Amendment Give Rise to Adverse Inference? — Factors — Trial Court’s Reversal of Position on Issue OK: “Courts Are Free to Change Their Minds” (Good Quote)

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

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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