Complex Lit Blog

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 ...

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 ...

Commercial Litigation and Arbitration

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

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

Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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