Complex Lit Blog

Text Messages — Circumstantial Evidence of Authenticity — Mere Possession of Device, Standing Alone, Insufficient to Show That Possessor Authored Messages Earlier Issued from Device

State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014): First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This failure is accentuated by the modern authority on admissions by a party opponent, particu ...

State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014): First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This…

Importance of Considering Lesser Sanctions Where Central Blame Lay with Strategic Decisions of Counsel — General Inappropriateness of Penalizing Blameless Client for Attorney’s Behavior (Good Quotes)

Flores v. Ethicon, Inc., 2014 U.S. App. LEXIS 5751 (4th Cir. Mar. 28, 2014) (Wynn, J., concurring that the district court acted within its discretion in dismissing the case without prejudice as a sanction for Plaintiffs' refusal to comply with the district court's pretrial discovery procedures, but dissenting from the lower court’s denial of Pl ...

Sanctions — Rule 11 Inapplicable to Discovery — Applicable Rules and § 1927 Trump Inherent Power — Elements of a § 1927 Violation

Hilburn v. Bayonne Parking Auth., 2014 U.S. App. LEXIS 6246 (3d Cir. April 4, 2014): Peter Hilburn and Felicia [*2] Ryan appeal from the District Court's order granting Appellees' Motion for Summary Judgment and imposing sanctions. Specifically, Appellants argue that they presented sufficient evidence to sur ...

Hilburn v. Bayonne Parking Auth., 2014 U.S. App. LEXIS 6246 (3d Cir. April 4, 2014): Peter Hilburn and Felicia [*2] Ryan appeal from the District Court's order granting Appellees' Motion for Summary Judgment and imposing sanctions. Specifically, Appellants argue that…

Disqualification — Despite Lack of Subject Matter Jurisdiction, Court May Disqualify Counsel — Potential for Abuse Lower If Motion Brought by Former Client — Appeals Court May Sua Sponte Judicially Notice Related Case Filings

Zerger & Mauer LLP, 2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014): This appeal is a companion to Baker v. Martin Marietta Materials, Inc., 745 F.3d 919 (8th Cir. 2014). In Baker, we determined that the district court lacked subject-matter jurisdiction over the merits and reversed the district court's jurisdictional r ...

Judicial Notice of Internet Evidence — Online State Licensing Records Properly Subject to Judicial Notice

Sterling Trust v. Edwards, 2014 Cal. App. Unpub. LEXIS 2885 (Cal. Ct. App. April 23, 2014): In his declaration filed in support of the motion for summary judgment Hensel stated that he was "the President of Hensel [*13] Financial" and that "Hensel Financial has been, and is still, licensed as a Califo ...

FRAP 38 and § 1927 Sanctions on Appeal Appropriate for “Slap-Dash Excuse for a Brief” — “Poor Quality of Briefing Is Inexcusable” (Good Quotes)

United States v. Alaniz, 2014 U.S. App. LEXIS 9710 (5th Cir. May 27, 2014): Sanctions may be warranted where counsel's arguments are "totally without merit and his briefing . . . sloppily prepared." Macklin v. City of New Orleans, 293 F.3d 237, 241-42 (5th Cir. 2002). We have imposed sanctions under Fede ...

Where Sanctions Sought under Rule 37, Due Process Violated by Sanctioning under Inherent Power (Circuit Split (Second vs. Third)) — $6,400 Fine Is Likely “Substantial” and Thus Likely Requires Criminal Contempt Protections

Eastcott v. Hasselblad USA, Inc., 2014 U.S. App. LEXIS 10362 (Fed. Cir. June 4, 2014): This patent appeal involves camera lens technology and the district court's imposition of sanctions for a "sham" invoice requesting expert fees. In 2011, Appellant John Eastcott filed a complaint in the United States District Court for ...

RICO / Sherman Act — Statute of Limitations — Non-Conspiracy Claims — “Acts That Are Merely Unabated Inertial Consequences (of A Single Act) Do Not Restart The Statute Of Limitations”

Z Techs. Corp. v. Lubrizoil Corp., 2014 U.S. App. LEXIS 9597 (6th Cir May 23, 2014): Z Technologies alleges that The Lubrizol Corporation violated the Sherman, Clayton, and analogous state-law antitrust acts by raising prices and enforcing a non-compete clause following Lubrizol's acquisition of the assets of another [** ...

Z Techs. Corp. v. Lubrizoil Corp., 2014 U.S. App. LEXIS 9597 (6th Cir May 23, 2014): Z Technologies alleges that The Lubrizol Corporation violated the Sherman, Clayton, and analogous state-law antitrust acts by raising prices and enforcing a non-compete clause …

Party and Counsel Both Subject to Personal Liability for Failure to Comply with Discovery Orders under Rule 37(b)(2)(A) & (C) — Good Quote

Porter Bridge Loan Co. v. Northrop, 2014 U.S. App. LEXIS 8956 (10th Cir. May 14, 2014): III. SANCTION AWARD AGAINST ATTORNEY CAPRON Mr. Capron challenges the district court's order imposing on him a discovery sanction of $1,500.00. Under Rule 37(b)(2)(A) & (C), if a party "fails to obey an orde ...

Porter Bridge Loan Co. v. Northrop, 2014 U.S. App. LEXIS 8956 (10th Cir. May 14, 2014): III. SANCTION AWARD AGAINST ATTORNEY CAPRON Mr. Capron challenges the district court's order imposing on him a discovery sanction of $1,500.00. Under Rule 37(b)(2)(A) …

ESI Needn’t Be Produced Either as Kept in Usual Course of Business Nor Organized and Labeled to Correspond to Production Request, But in the Form Usually Maintained or In Reasonably Usable Form, Regardless of Requested Format

Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 2014 U.S. Dist. LEXIS 69669 (D. Colo. Mar. 24, 2014) (Hedges, Special Master): The WebMD ESI Production Complies With Rule 34(b)(2)(E)(ii) 1. Rule 34(b)(2)(E) provides that unless otherwise stipulated or ordered ...

Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 2014 U.S. Dist. LEXIS 69669 (D. Colo. Mar. 24, 2014) (Hedges, Special Master): The WebMD ESI Production Complies With Rule 34(b)(2)(E)(ii) 1. Rule 34(b)(2)(E) provides that unless otherwise stipulated or ordered…

Commercial Litigation and Arbitration

Text Messages — Circumstantial Evidence of Authenticity — Mere Possession of Device, Standing Alone, Insufficient to Show That Possessor Authored Messages Earlier Issued from Device

Importance of Considering Lesser Sanctions Where Central Blame Lay with Strategic Decisions of Counsel — General Inappropriateness of Penalizing Blameless Client for Attorney’s Behavior (Good Quotes)

Sanctions — Rule 11 Inapplicable to Discovery — Applicable Rules and § 1927 Trump Inherent Power — Elements of a § 1927 Violation

Disqualification — Despite Lack of Subject Matter Jurisdiction, Court May Disqualify Counsel — Potential for Abuse Lower If Motion Brought by Former Client — Appeals Court May Sua Sponte Judicially Notice Related Case Filings

Judicial Notice of Internet Evidence — Online State Licensing Records Properly Subject to Judicial Notice

FRAP 38 and § 1927 Sanctions on Appeal Appropriate for “Slap-Dash Excuse for a Brief” — “Poor Quality of Briefing Is Inexcusable” (Good Quotes)

Where Sanctions Sought under Rule 37, Due Process Violated by Sanctioning under Inherent Power (Circuit Split (Second vs. Third)) — $6,400 Fine Is Likely “Substantial” and Thus Likely Requires Criminal Contempt Protections

RICO / Sherman Act — Statute of Limitations — Non-Conspiracy Claims — “Acts That Are Merely Unabated Inertial Consequences (of A Single Act) Do Not Restart The Statute Of Limitations”

Party and Counsel Both Subject to Personal Liability for Failure to Comply with Discovery Orders under Rule 37(b)(2)(A) & (C) — Good Quote

ESI Needn’t Be Produced Either as Kept in Usual Course of Business Nor Organized and Labeled to Correspond to Production Request, But in the Form Usually Maintained or In Reasonably Usable Form, Regardless of Requested Format

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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