Complex Lit Blog

Spoliation — Error to Impose Adverse Inference Instruction Absent Finding of Bad Faith in Tenth Circuit

Phillip M. Adams & Assocs., LLC. v. Dell Computer Corp., 519 Fed. App’x 998 (Fed. Cir. 2013): A spoliation sanction is proper under Tenth Circuit law when "(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the d ...

Phillip M. Adams & Assocs., LLC. v. Dell Computer Corp., 519 Fed. App’x 998 (Fed. Cir. 2013): A spoliation sanction is proper under Tenth Circuit law when "(1) a party has a duty to preserve evidence because it knew, or …

Sanctions — Inadvertent Violation of Protective Order Not Sanctionable under Inherent Power

City of Alexandria v. Cleco Corp., 2013 U.S. App. LEXIS 23469 (5th Cir. Nov. 20, 2013): This appeal arises from a lawsuit between the City of Alexandria ("the city") and a corporate contractor, Cleco Corporation ("Cleco"). The city retained several private attorneys for representation in the lawsuit. After som ...

Experts — 2010 Rules Amendments Protect Only Lawyer-Expert Communications and Draft Reports — All Else Is Fair Game (10th Circuit) — Good Quotes on Statutory Construction

In re Application of Republic of Ecuador, 735 F.3d 1179 (10th Cir. 2013): Intervenor-Appellant Chevron Corporation appeals from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents to be used in a foreign proceed ...

Claim Supported Only by Conclusory Assertions Inadequate to Prevent Entry of Summary Judgment

Jaso v. Coca Cola Co., 2013 U.S. App. LEXIS 16026 (5th Cir. Aug. 2, 2013): Appellant Omar Jaso appeals from the district court's summary judgment in favor of the defendants on his complaint for alleged copyright infringement, RICO violations, and Lanham Act violations. Jaso contends that he holds a Mexican copyright in a song ent ...

Does Rule 15(b) (Constructive Amendment of Pleadings at Trial with Permission or on Consent) Apply at Summary Judgment? Is That Rule the Last Word on Whether Issues Not Pled Can Be Litigated on Summary Judgment? Circuit Split

Tank v. Burlington Res. Oil & Gas Co., 2013 U.S. Dist. LEXIS 166382 (D.N.D. Nov. 22, 2013): But, even if the Amended Complaint did not include an alternative request for payment of royalty and penalty interest for the Lassen Well, defendants have argued from the outset that this was the more appropriate remedy over lease cancellation ...

Disqualification — Neither a Court’s Decision to Disqualify Counsel Nor Its Refusal to Do So Is an Appealable Final Order — Nor Is a Bankruptcy Judge’s Decision to Appoint Counsel, Or Not to Do So

In re Danner (Danner v. U.S. Trustee), 2013 U.S. App. LEXIS 24798 (9th Cir. Dec. 13, 2013): The debtors in separate bankruptcy proceedings appeal decisions of the bankruptcy appellate panel affirming orders of the bankruptcy court, which denied a law firm's applications to serve as counsel to the debtors. Becaus ...

In re Danner (Danner v. U.S. Trustee), 2013 U.S. App. LEXIS 24798 (9th Cir. Dec. 13, 2013): The debtors in separate bankruptcy proceedings appeal decisions of the bankruptcy appellate panel affirming orders of the bankruptcy court, which denied a law …

Experts, Privilege & Work Product — Testifying Expert’s Notes and Emails with Other Experts and Corporate Employee Not Protected by 2010 Expert Witness Amendments — Good Quotes on Statutory Interpretation — Eleventh Circuit

Republic of Ecuador v. Hinchee, 2013 U.S. App. LEXIS 25102 (11th Cir. Dec. 18, 2013) (note: this appeal affirms the decision excerpted in our posting of January 4, 2013): Respondent-Appellant Dr. Robert Hinchee ("Dr. Hinchee"), who resides in Florida, and Intervenor-Appellant Chevron Corporation ("Chevron&qu ...

“Terrorism Is the Modern-Day Equivalent of the Bubonic Plague: It Is an Existential Threat” — Good Quote

United States v. Mehanna, 2013 U.S. App. LEXIS 22893 (1st Cir. Nov. 13, 2013): “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.” ...

United States v. Mehanna, 2013 U.S. App. LEXIS 22893 (1st Cir. Nov. 13, 2013): “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.”

Reassignment of Case to Different Judge — Disagreement with Adverse Rulings ≠ Reason to Doubt Impartiality of District Judge or to Reassign Case — Good Quote — Recusal Not Sought — Obtaining Extension ≠ 1927 Violation

United States v. Gregory, 2013 U.S. App. LEXIS 24300 (11th Cir. Dec. 6 2013): Gregory moves for sanctions against counsel for the government and for reassignment of his case to a different judge on remand, but his motions lack merit. Gregory requests that we impose sanctions against opposing counsel for obtaining an extension of ti ...

In Predicting How State Court Would Decide Issue of First Impression, Federal Court Sitting in Diversity May Be Aided by Looking to Well-Reasoned Decisions from Other Jurisdictions — Learned Intermediary Doctrine — Erie

Saavedra v. Eli Lilly & Co., 2013 U.S. Dist. LEXIS 173055 (C.D. Cal. Feb. 26, 2013): The learned intermediary doctrine provides that a drug manufacturer has no duty to warn the ultimate consumer of potential side-effects of prescription medication, so long as adequate warnings are given to the prescribing physician. *** In tra ...

Commercial Litigation and Arbitration

Spoliation — Error to Impose Adverse Inference Instruction Absent Finding of Bad Faith in Tenth Circuit

Sanctions — Inadvertent Violation of Protective Order Not Sanctionable under Inherent Power

Experts — 2010 Rules Amendments Protect Only Lawyer-Expert Communications and Draft Reports — All Else Is Fair Game (10th Circuit) — Good Quotes on Statutory Construction

Claim Supported Only by Conclusory Assertions Inadequate to Prevent Entry of Summary Judgment

Does Rule 15(b) (Constructive Amendment of Pleadings at Trial with Permission or on Consent) Apply at Summary Judgment? Is That Rule the Last Word on Whether Issues Not Pled Can Be Litigated on Summary Judgment? Circuit Split

Disqualification — Neither a Court’s Decision to Disqualify Counsel Nor Its Refusal to Do So Is an Appealable Final Order — Nor Is a Bankruptcy Judge’s Decision to Appoint Counsel, Or Not to Do So

Experts, Privilege & Work Product — Testifying Expert’s Notes and Emails with Other Experts and Corporate Employee Not Protected by 2010 Expert Witness Amendments — Good Quotes on Statutory Interpretation — Eleventh Circuit

“Terrorism Is the Modern-Day Equivalent of the Bubonic Plague: It Is an Existential Threat” — Good Quote

Reassignment of Case to Different Judge — Disagreement with Adverse Rulings ≠ Reason to Doubt Impartiality of District Judge or to Reassign Case — Good Quote — Recusal Not Sought — Obtaining Extension ≠ 1927 Violation

In Predicting How State Court Would Decide Issue of First Impression, Federal Court Sitting in Diversity May Be Aided by Looking to Well-Reasoned Decisions from Other Jurisdictions — Learned Intermediary Doctrine — Erie

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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