Complex Lit Blog

Spoliation Sanctions: (1) Meaning of “Relevance” for Preservation vs. for Adverse Inference Purposes; (2) Only “Very Slight Showing” of Latter Required; (3) Adverse Inference Instruction OK for Negligent Spoliation of Tangible Evidence in D.C. Cir.; (4) Preponderance of Evidence for Adverse Inference Instruction vs. Clear & Convincing for Attorney’s Fees; (5) Wide Range of Inherent Power Sanctions Available; (6) Two Sets of Factors for Adverse Inference Instruction (D.C. Cir.) — Prerequisites and Propriety in the Circumstances; (7) Ordinary vs. Gross Negligence; (8) Cite

Paavola v. Hope Vill., 2021 U.S. Dist. LEXIS 168241, 2021 WL 4033101 (D.D.C. Sept. 4, 2021): MEMORANDUM OPINION Plaintiff Lana Paavola, individually and on behalf of the ...

Paavola v. Hope Vill., 2021 U.S. Dist. LEXIS 168241, 2021 WL 4033101 (D.D.C. Sept. 4, 2021): MEMORANDUM OPINION Plaintiff Lana Paavola, individually and on behalf of the estate of her late husband Joel D. Paavola and his beneficiaries, sued…

Rule 11 Sanctions Should Be Allocated Among Persons Responsible — Not Imposed Lightly As Misapplication Can Chill Counsel’s Enthusiasm and Stifle Creativity in Pursuing Novel Factual Or Legal Theories — Disgorgement of Fees into Court — Focus of Improper Purpose Inquiry Is On Objective Facts Supporting Inference Goal Was Harassment Or Unnecessary Delay — While Rule 11 Is Not Intended to Be Compensatory in First Instance, Effective Deterrence May Require Compensation of Victim — Rule 37 Sanctions: Where Case Has Been Dismissed after Violation, Best Sanction Is Award of Fees and Expenses Incurred in Bringing Motions to Compel and for Sanctions Against Client and Counsel Jointly

Upchurch v. O’Brien, 2021 WL 3617098 (W.D. Wis. Aug. 16, 2021): Before the court are three motions for sanctions filed against plaintiff Timothy Upchurch and his attorney, Timothy Alan Provis. (Dkt. #36, 67, 75.) Although the case has been voluntarily dismissed on the merits, the court retains jurisdiction to consider these motions. The first sanctions ...

Upchurch v. O’Brien, 2021 WL 3617098 (W.D. Wis. Aug. 16, 2021): Before the court are three motions for sanctions filed against plaintiff Timothy Upchurch and his attorney, Timothy Alan Provis. (Dkt. #36, 67, 75.) Although the case has been …

Rule 37(c) Preclusion for 26(a)(1) Non-Disclosure Requires Harm to Opponent, And Harm Doesn’t Require Preclusion — Preclusion Factors (1st Cir.) — “Substantially Justified” And “Harmless[ness]” Exceptions — Late Disclosure Can Be Harmless Even If It Follows Filing of Summary Judgment Motion

Zampierollo-Rheinfeldt v. Ingersoll-Rand De P.R., 2021 U.S. App. LEXIS 16146 (1st Cir. May 28, 2021): Trane Puerto Rico, LLC and its parent company, Ingersoll-Rand de Puerto Rico, Inc. (collectively "Trane") terminated the employment of Giorgio ...

Circuit Split: District Court Lacks Jurisdiction to Modify Protective Order after Rule 41(a)(1) Dismissal (11th Cir. (2-1))— Not a “Collateral Matter” over Which Jurisdiction Remains (Like Costs, Fees, Contempt Sanctions, Rule 11 Sanctions, and Motions to Confirm Arbitral Awards) — Stipulated Protective Order Is an Enforceable Contract, Subject to Post-Dismissal Lawsuit — Strong Dissenting Opinion

Absolute Activist Value Master Fund v. Devine, 2021 U.S. App. LEXIS 16110 (11th Cir. May 28, 2021): Susan Devine, who was sued for her alleged involvement in money laundering and market manipulation schemes, appeals the District Court's denial o ...

“The purpose of a Rule 11 sanction is to punish ‘unprofessional conduct in litigation'” — Bankruptcy: Automatic Stay Does Not Preclude Imposition of Contempt Sanctions: “‘[a] litigant should not be allowed to delay the imposition of sanctions indefinitely by the expedient of declaring bankruptcy'”

Kupperstein v. Schall (In re Kupperstein), 2021 U.S. App. LEXIS 11944 (1st Cir. April 22, 2021): BAC ...

Kupperstein v. Schall (In re Kupperstein), 2021 U.S. App. LEXIS 11944 (1st Cir. April 22, 2021): BACKGROUND The short story, sticking with only what is relevant here, is that years ago, Donald C. Kupperstein, with the help of his comrade, …

Rule 11 Sanctions: Attorney May Not Rely on Clients When Objectively Unreasonable — Cannot Rely on Discovery to Bring Claims with No Factual Basis — Specific Identification Requirement — $10,000 Deterrent Penalty OK — Factors from Adv. Comm. Note Adopted

Goldman v. Barrett, 825 Fed. Appx. 35 (2d Cir. Sept. 10, 2020) (unpublished): [*36]

Goldman v. Barrett, 825 Fed. Appx. 35 (2d Cir. Sept. 10, 2020) (unpublished): [*36] SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiffs-Appellants Robert M. Goldman…

Rule 37 Sanctions for Impeding, Delaying, Frustrating Deposition — Intricacies of Remote Deposition Protocols and 30(b)(6) Witnesses Using Notes — No Duty to ID Which 30(b)(6) Topic a Question Relates to — When a Protective Order Is a R. 37(b) Order — Sanctions Must Be Proportional to Offense — Motion to Strike = Objection — When Inherent Power Sanctions for Deposition Misconduct Are Apt

John Doe I v. Exxon Mobil Corp., 2021 U.S. Dist. LEXIS 87596, 2021 WL 1840649 (D.D.C. May 7, 2021): *1 At his deposition, the corporate representative of defendant Exxon Mobil Oil of Indonesia (“EMOI”) refused to ans ...

John Doe I v. Exxon Mobil Corp., 2021 U.S. Dist. LEXIS 87596, 2021 WL 1840649 (D.D.C. May 7, 2021): *1 At his deposition, the corporate representative of defendant Exxon Mobil Oil of Indonesia (“EMOI”) refused to answer most of …

Rule 37 Sanctions: Second Circuit Factors — Exclusion of Witness Not Disclosed Per 26(a) Apt — “Interviewing a Witness Late in the Process Does Not Provide Cover for a Revised Disclosure” — Reconsideration Factors

Irish v. Tropical Emerald Llc & Rainbow United States, 2021 U.S. Dist. LEXIS 87946 (E.D.N.Y. May 6, 2021): ...

Irish v. Tropical Emerald Llc & Rainbow United States, 2021 U.S. Dist. LEXIS 87946 (E.D.N.Y. May 6, 2021): After a series of failed attempts to follow this Court’s rules, including those on page limitations, Defendants filed a motion for reconsideration …

Rule 26(a)(1)(A)(iii) Mandatory Damages Disclosure Does Not Extend to Disgorgement Because It Is An Equitable, And Not A Damages, Remedy

Northern Nat. Gas Co. v. L.D. Drilling, Inc., 405 F. Supp. 3d 981 (D. Kan. 2019): A number of the motions a ...

Northern Nat. Gas Co. v. L.D. Drilling, Inc., 405 F. Supp. 3d 981 (D. Kan. 2019): A number of the motions are before the court in the present dispute over the effects of the migration of natural gas which plaintiff…

Supreme Court — Personal Jurisdiction — Specific Jurisdiction Does Not Require A Causal Relationship Between The Defendant’s In-State Activity And The Litigation — “Some Relationships Will Support Jurisdiction Without A Causal Showing”

Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 2021 WL 1132515 (U.S. March 25, 2021): *3 In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products-liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford ...

Commercial Litigation and Arbitration

Rule 11 Sanctions: Attorney May Not Rely on Clients When Objectively Unreasonable — Cannot Rely on Discovery to Bring Claims with No Factual Basis — Specific Identification Requirement — $10,000 Deterrent Penalty OK — Factors from Adv. Comm. Note Adopted

Rule 37 Sanctions: Second Circuit Factors — Exclusion of Witness Not Disclosed Per 26(a) Apt — “Interviewing a Witness Late in the Process Does Not Provide Cover for a Revised Disclosure” — Reconsideration Factors

Rule 26(a)(1)(A)(iii) Mandatory Damages Disclosure Does Not Extend to Disgorgement Because It Is An Equitable, And Not A Damages, Remedy

Supreme Court — Personal Jurisdiction — Specific Jurisdiction Does Not Require A Causal Relationship Between The Defendant’s In-State Activity And The Litigation — “Some Relationships Will Support Jurisdiction Without A Causal Showing”

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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