Complex Lit Blog

Spoliation — Sanctions in the Form of Extra Discovery Costs Caused by the Spoliation, Including the Cost of the Sanctions Motion

Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra discovery costs caused by spoliation, including the cost of the sanctions motion. ...

Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra …

Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying his motion for sanctions. See Barksdale v. ...

Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012). In assessing the motion to compel arbitration itself, we apply t ...

Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014): First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely on it when identifying unknown pills, the prosecu ...

People v. Hard, 2014 Colo. App. LEXIS 1676 (Colo. Ct. App. Oct. 9, 2014): First, although the People argue that information from Drugs.com is reliable because Trooper Hancey testified that Drugs.com is "nationally recognized" and that law enforcement officials rely …

Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet Be honest, be clear, be done with it. As columnists know, a word limit ...

From Financial Times, Lex column, Nov. 13, 2014 (http://www.ft.com/intl/cms/s/3/97e10c30-6a86-11e4-a038-00144feabdc0.html?ftcamp=crm/email/20141113/nbe/LexEurope/product&siteedition=intl#axzz3Iwj0ZhG0): Financial reporting: short is sweet Be honest, be clear, be done with it. As columnists know, a word limit focuses the mind and helps the reader. Lehman Brothers’ 2007 annual report…

Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails that mention, or refer to the plaintiffs in any way shape or f ...

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014): A. Email The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails…

Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

In re Grodner, 2014 U.S. App. LEXIS 20976 (5th Cir. Nov. 3, 2014): Attorney Donna U. Grodner challenges her sixty-day suspension from practicing in the Middle District of Louisiana. Finding that none of the numerous arguments she raises to challenge the suspension order are meritorious, we affirm. I. Th ...

Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1. The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in the Mondrian Opinion, American Pipe tolling suspends the app ...

In re BP plc MDL Secs. Litig., 2014 U.S. Dist. LEXIS 138920 (S.D. Tex. Sept. 30, 2014): 1. The statute of limitations was tolled by the filing of the related federal class action. [*6] As described by the Court in…

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Gillum v. United States, 309 F. App'x 267 (10th Cir. 2009): In this Federal Tort Claims Act medical malpractice action, Kathleen Gillum, as the surviving spouse and executor of the estate of Donald Gillum, appeals the district court's exclusion of her expert witness's testimony and the resulting grant of summary judgment t ...

Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Tavares v. S-L Dist. Co., 2014 U.S. Dist. LEXIS 146414 (M.D. Pa. June 12, 2014): Initially, we note that neither the Third Circuit nor Pennsylvania courts have addressed the particular choice-of-law issue before us. However, that the issue is one of first impression does not make a prima facie case for certification of appeal ...

Commercial Litigation and Arbitration

Spoliation — Sanctions in the Form of Extra Discovery Costs Caused by the Spoliation, Including the Cost of the Sanctions Motion

Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Website Authentication: More Needed Than Lay Witness’s Testimony Site Is Nationally Recognized or Site’s Self-Serving Statements — Proof of Rx Drugs Requires More Than Visual Comparison to Web Pix — Limits on Reliability of Physicians’ Desk Ref

Securities / Fraud / Disclosure – “Just because something is disclosed doesn’t mean it wasn’t lost in a mass of detail” (Good Quotes from FT)

Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Sanctions — 60-Day Suspension for Falsely Representing Motion Was Unopposed — Inherent Power to Suspend or Dismiss Counsel (No Bad Faith Mentioned or Needed) — Criminal Contempt Protections and Rule 11 Irrelevant

Class Actions — Do Absent Class Members Forfeit American Pipe Tolling by Filing Suit before Certification Is Denied? — Circuit Split, with 3 Recent Circuit Decisions — and This District Court — Saying No

Experts — 26(e)(2) Supplementation of Report — Factors Guiding Substantially-Justified or Harmless Analysis (10th Circuit) — Inability to Catch Expert “Flat-Footed” at Deposition Is Not a Type of Prejudice that Justifies Exclusion under 37(c)(1)

Mere Existence of Issue of First Impression Insufficient to Warrant 1292(b) Interlocutory Appeal — If Questions of First Impression Alone Were Sufficient, Courts of Appeals Would Be Besieged with Piecemeal Appeals — Good Quote

Recent Posts

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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