Complex Lit Blog

Rule 11 — Even If Compliance with Safe Harbor Is Factually Impossible, Non-Compliance Dictates Denial of Motion (So Don’t Use Rule 11 in These Circumstances)

Islamic Shura Council of S. Cal. v. FBI, 2014 U.S. App. LEXIS 5175 (9th Cir. Mar. 18, 2014): The Federal Bureau of Investigation ("FBI") appeals the district court's order granting the Islamic Shura Council of Southern California's ("Shura Council") motion for sanctions under Federal Rule of Civil Procedure ...

Email Evidence — Unprivileged Email from Counsel to Client Encapsulating Client’s Statements Admissible against Client as Agent Admission under Rule 801(d)(2)

Reardon v. Boylan, 2014 Mass. App. Unpub. LEXIS 331 (Mass. Ct. App. Mar. 17, 2014): This is a legal malpractice action in which the plaintiff, Robert M. Reardon, alleged that he suffered significant damages by relying on advice that his former counsel, Paul G. Boylan, had provided. After a seven-day trial in Superior Court, a jury rul ...

FRAP 38 Sanctions — Not Just for Frivolousness But Also for “Blatant Misrepresentations” — Good Quotes: (1) Weak, “Almost Hopeless” ≠ Frivolous, (2) Sleeping on One’s Rights and (3) Pointlessness of Epithets in Court Filings

Candelario-Del-Moral v. UBS Fin’l Servs. Inc. (In re Efron), 2014 U.S. App. LEXIS 5322 (1st Cir. Mar. 21, 2014): For over four centuries, persons learned in the law have known that, when litigation is in prospect, vigilance is good and somnolence is bad. Commentators and courts have phrased this sentiment in different ways. See, e.g ...

Website Evidence — Hearsay — Admissibility under Business Records (Rule 803(6)) and Commercial List (803(17)) Exceptions (Case Law Splits) — Authentication Issues

Southco, Inc. v. Fivetech Tech., Inc., 2013 U.S. Dist. LEXIS 161489, 109 U.S.P.Q.2D (BNA) 1763 (E.D. Pa. Nov. 12, 2013): Internet websites and web postings are also typically inadmissible as hearsay. United States v. Jackson, 208 F.3d 633, 637-38 (7th Cir. 2000). Although some commentators have argued that websites could be ad ...

Sanctions — Reputational Impact (Good Quotes) — Inherent Power — Need for Restraint Is Greatest in Criminal Cases — Meaning of Candid / Candor

In re Plaza-Martinez, 2014 U.S. App. LEXIS 5555 (1st Cir. Mar. 26, 2014): We turn next to the merits. The court below did not describe the basis of its authority for imposing the challenged sanction, but the circumstances make plain that the sanction was imposed under its inherent power. See United Sta ...

Circumstantial Authentication of Texts and Emails (Rule 901(b)(4))—Indiana Adopts Tienda / Parker Approach—For Voice ID (R. 901(b)(5)), Only “Minimal Familiarity” Required—All Decided under 104(a)—Strictures of R. 701 Inapt

Pavlovich v. State, 2014 Ind. App. LEXIS 127 (Ind. Ct. App. Mar. 28, 2014): The second issue is whether the trial court erroneously admitted the text and email communications between Pugh and Detective Odier and the [*12] 2662 number and the "golfnutmi" email address while allowing the State to identify th ...

Printout Offered to Show What Appears on Website ≠ Hearsay — 403 Unfair Prejudice Prong “Unnecessary and Useless” in Bench Trial — Internet Search Results or Snippets without Context May Be of Minimal Relevance — Good Quotes

Invisible Fences, Inc. v. Fido’s Fences, Inc., 2014 U.S. Dist. LEXIS 16663 (E.D. Tenn. Feb. 11, 2014): The Court finds the following from Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *4 (W.D. Mich. Oct. 31, 2011)persuasive: "[T]hese exhibits [screen shots of websites] are o ...

Damages Expert May Rely on the Opinions of Other Experts to Form Independent Damages Conclusions (Good Quote)

Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., 2013 U.S. Dist. LEXIS 135208 (W.D. Pa. Sept. 23, 2013): [T]he Court has already discussed the propriety of Ms. Lawton's price premium and excess profits analysis. [S]he based her reasonable royalty opinion on the opinion of Dr. Bajorek that the technology became " ...

RICO—PSLRA Bars Claim Based on Scheme to Lend Money for Purpose of Buying Securities—Selling Securities Was a Necessary Component of the Scheme and Integral to the Relationship between Plaintiffs and Defendants—In Connection With Factors

Calderón Serra v. Banco Santander P.R., 2014 U.S. App. LEXIS 5554 (1st Cir. Mar. 26, 2014): Plaintiffs press a RICO claim against their bank and others over what they claim was an unlawful scheme to lend plaintiffs money in violation of federal margin requirements limiting the extent to which securities can be used as collate ...

Calderón Serra v. Banco Santander P.R., 2014 U.S. App. LEXIS 5554 (1st Cir. Mar. 26, 2014): Plaintiffs press a RICO claim against their bank and others over what they claim was an unlawful scheme to lend plaintiffs money in violation …

Spoliation — Not Error to Decline Spoliation Instruction and Instead Permit Aggrieved Party to Argue That Missing Records Would Have Been Favorable — Violation of Regulation, As Opposed to Statute, ≠ Negligence Per Se

Mann v. Redman Van & Storage Co., Inc., 2013 U.S. App. LEXIS 21047 (9th Cir. Oct. 17, 2013): The Manns, Plaintiffs-Appellants, appeal from a district court's denial of their Rule 59 motion for a new trial following a jury verdict in Defendant-Appellee Redman's favor. The Manns and defendant Redman's employee, Anderson, we ...

Commercial Litigation and Arbitration

Rule 11 — Even If Compliance with Safe Harbor Is Factually Impossible, Non-Compliance Dictates Denial of Motion (So Don’t Use Rule 11 in These Circumstances)

Email Evidence — Unprivileged Email from Counsel to Client Encapsulating Client’s Statements Admissible against Client as Agent Admission under Rule 801(d)(2)

FRAP 38 Sanctions — Not Just for Frivolousness But Also for “Blatant Misrepresentations” — Good Quotes: (1) Weak, “Almost Hopeless” ≠ Frivolous, (2) Sleeping on One’s Rights and (3) Pointlessness of Epithets in Court Filings

Website Evidence — Hearsay — Admissibility under Business Records (Rule 803(6)) and Commercial List (803(17)) Exceptions (Case Law Splits) — Authentication Issues

Sanctions — Reputational Impact (Good Quotes) — Inherent Power — Need for Restraint Is Greatest in Criminal Cases — Meaning of Candid / Candor

Circumstantial Authentication of Texts and Emails (Rule 901(b)(4))—Indiana Adopts Tienda / Parker Approach—For Voice ID (R. 901(b)(5)), Only “Minimal Familiarity” Required—All Decided under 104(a)—Strictures of R. 701 Inapt

Printout Offered to Show What Appears on Website ≠ Hearsay — 403 Unfair Prejudice Prong “Unnecessary and Useless” in Bench Trial — Internet Search Results or Snippets without Context May Be of Minimal Relevance — Good Quotes

Damages Expert May Rely on the Opinions of Other Experts to Form Independent Damages Conclusions (Good Quote)

RICO—PSLRA Bars Claim Based on Scheme to Lend Money for Purpose of Buying Securities—Selling Securities Was a Necessary Component of the Scheme and Integral to the Relationship between Plaintiffs and Defendants—In Connection With Factors

Spoliation — Not Error to Decline Spoliation Instruction and Instead Permit Aggrieved Party to Argue That Missing Records Would Have Been Favorable — Violation of Regulation, As Opposed to Statute, ≠ Negligence Per Se

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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