Complex Lit Blog

Early Reports from Expert That Are Not Drafts of 26(a)(2)(B) Report Are Not Protected from Discovery — Interrogatories Seeking Expert Information Prior to Expert Disclosure Date Set by Court Are Premature

Amco Ins. Co. v. Mark’s Custom Signs, Inc., 2013 U.S. Dist. LEXIS 53803 (D. Kan. April 16, 2013): This is an insurance subrogation claim brought by Plaintiff against the named Defendants resulting from a fire occurring on April 3, 2009, in a building insured by Plaintiff. (Doc. 31, at 2.) Following payment by Plaintiff, its insured "a ...

RICO Pleading & Iqbal — Plausibility Does Not Require Negating Every Improbable Alternate Inference — Statute of Limitations — Mere Hunch ≠ Grounds to Investigate — Failure to Find Lawsuit May Not Reflect Lack of Diligence

Cohen v. S.A.C. Trading Corp., 2013 U.S. App. LEXIS 6798 (2d Cir. April 3, 2013): Patricia and Steven were married in 1979. At the time, Steven was a trader at Gruntal & Co. ("Gruntal"). In January 1986, Steven created S.A.C. Trading Corporation ("SAC"), and served as its President, while his brother, defendant Donald, served as Treasur ...

Cohen v. S.A.C. Trading Corp., 2013 U.S. App. LEXIS 6798 (2d Cir. April 3, 2013): Patricia and Steven were married in 1979. At the time, Steven was a trader at Gruntal & Co. (“Gruntal”). In January 1986, Steven created S.A.C.…

§ 1927 Sanctions for Bad Faith Opening Statement

Sabatine v. Paul Revere Life Ins. Co., 2013 U.S. App. LEXIS 8579 (6th Cir. April 26, 2013): Sabatine filed a lawsuit in the Ohio courts against Paul Revere Life Insurance Co. (Paul Revere), alleging that Paul Revere engaged in bad faith and breached a disability insurance policy by terminating Sabatine's disability benefits. Sabatine ...

May a Testifying Expert’s Assistants, Who Are Also Consulting Experts, Be Deposed to Test the Nature and Confines of the Testifying Expert’s Testimony?

Apple Inc. v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 47124 (N.D. Cal. April 1, 2013): Now pending before the Court is the parties' joint discovery letter brief concerning whether Apple should be compelled to produce discovery related to the work of two assistants to Apple's testifying survey expert. (Dkt. No. 113.) Specifically, Amazon ...

Apple Inc. v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 47124 (N.D. Cal. April 1, 2013): Now pending before the Court is the parties’ joint discovery letter brief concerning whether Apple should be compelled to produce discovery related to the work…

Sanctions — Neither Prior Sanction Nor Explicit Observation of Frivolousness Affords Sufficient Due Process to Sustain Sua Sponte Rule 11 Sanction — Due Process Challenge Review Is Plenary, Not Abuse-of-Discretion

O.R. v. Hutner, 2013 U.S. App. LEXIS 2760 (3d Cir. Feb. 8, 2013): Appellant O.R. ("O.R.") and his attorney, Rotimi A. Owoh ("Mr. Owoh"), (collectively "Appellants"), appeal the October 13, 2011 and January 27, 2012 Orders of the District Court, denying various post-judgment motions and imposing a monetary sanction against Mr. Owoh under ...

O.R. v. Hutner, 2013 U.S. App. LEXIS 2760 (3d Cir. Feb. 8, 2013): Appellant O.R. (“O.R.”) and his attorney, Rotimi A. Owoh (“Mr. Owoh”), (collectively “Appellants”), appeal the October 13, 2011 and January 27, 2012 Orders of the District Court,…

Non-Testifying Expert Who Submits Declaration on Unsuccessful Summary Judgment Motion Is Subject to Deposition Concerning the Subject Matter of the Declaration — Also on Opinions Formed as Percipient Witness

Positive Techs., Inc. v. Sony Electronics, Inc., 2013 U.S. Dist. LEXIS 49738 (N.D. Cal. April 5, 2013): Plaintiff and Defendant have filed a joint statement regarding a discovery dispute over the deposition of Plaintiff's expert, Dr. Alan Sobel. See Dkt # 431. Plaintiff seeks a protective order barring Defendant from questioning Sobel ...

Expert’s Notes, Outlines, Lists, Letters, Memoranda and Internal Communications with Staff Are Discoverable, Unless They Contain Theories or Mental Impressions of Counsel — 2010 Expert Rules Amendments

Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 60739 (D. Colo. April 26, 2013): First, because it is the intention of the rules committee to protect the mental impressions and legal theories of a party's attorney, not its expert, notes, outlines, lists, letters and memoranda prepared by an expert or non-attorney con ...

Affidavits Excluded for Failure to Identify Affiants in Initial or Supplemental Disclosures, Even Though Exclusion Is Tantamount to Dismissal — Factors for Exclusion and for Dismissal Sanctions

Carmody v. K.C. Bd. of Police Comm’rs, 2013 U.S. App. LEXIS 8128 (8th Cir. April 23, 2013): Sergeant James Carmody, Officer Marcus Davis, and Officer Robert Vivona (officers) appeal the district court's1 orders (1) striking the officers' affidavits submitted in resisting summary judgment, and (2) granting summary judgment to the Kans ...

Carmody v. K.C. Bd. of Police Comm’rs, 2013 U.S. App. LEXIS 8128 (8th Cir. April 23, 2013): Sergeant James Carmody, Officer Marcus Davis, and Officer Robert Vivona (officers) appeal the district court’s1 orders (1) striking the officers’ affidavits submitted in…

Rule 16(f) Sanctions — Pro Se Litigants Not Entitled to Disobey Two Orders before a Default or Dismissal Can Be Declared — Extrajudicial Rudeness Separately Sanctioned and Forms Part of Basis for Default Dismissal

Maus v. Ennis, 2013 U.S. App. LEXIS 5468 (11th Cir. Mar. 20, 2013): John Ennis, proceeding pro se, appeals the district court's grant, in part, of a default judgment in favor of David Maus and Mark Ornstein (collectively, the "plaintiffs") as a sanction against Ennis, the defendant, in their action filed pursuant to the Anticybersquatti ...

Maus v. Ennis, 2013 U.S. App. LEXIS 5468 (11th Cir. Mar. 20, 2013): John Ennis, proceeding pro se, appeals the district court’s grant, in part, of a default judgment in favor of David Maus and Mark Ornstein (collectively, the “plaintiffs”)…

Sanction Consisting of Award of Attorney’s Fees Not Yet Reduced to a Sum Certain Is Not Appealable

Webb v. Morella, 2013 U.S. App. LEXIS 7393 (5th Cir. April 12, 2013): The Webbs raise a number of issues relating to the district court's decision to impose sanctions. While the court granted Morella's Rule 11 motion and stated that it would award $200 per hour in attorneys' fees for work relating to the motion to dismiss, the court als ...

Webb v. Morella, 2013 U.S. App. LEXIS 7393 (5th Cir. April 12, 2013): The Webbs raise a number of issues relating to the district court’s decision to impose sanctions. While the court granted Morella’s Rule 11 motion and stated that…

Commercial Litigation and Arbitration

Early Reports from Expert That Are Not Drafts of 26(a)(2)(B) Report Are Not Protected from Discovery — Interrogatories Seeking Expert Information Prior to Expert Disclosure Date Set by Court Are Premature

RICO Pleading & Iqbal — Plausibility Does Not Require Negating Every Improbable Alternate Inference — Statute of Limitations — Mere Hunch ≠ Grounds to Investigate — Failure to Find Lawsuit May Not Reflect Lack of Diligence

§ 1927 Sanctions for Bad Faith Opening Statement

May a Testifying Expert’s Assistants, Who Are Also Consulting Experts, Be Deposed to Test the Nature and Confines of the Testifying Expert’s Testimony?

Sanctions — Neither Prior Sanction Nor Explicit Observation of Frivolousness Affords Sufficient Due Process to Sustain Sua Sponte Rule 11 Sanction — Due Process Challenge Review Is Plenary, Not Abuse-of-Discretion

Non-Testifying Expert Who Submits Declaration on Unsuccessful Summary Judgment Motion Is Subject to Deposition Concerning the Subject Matter of the Declaration — Also on Opinions Formed as Percipient Witness

Expert’s Notes, Outlines, Lists, Letters, Memoranda and Internal Communications with Staff Are Discoverable, Unless They Contain Theories or Mental Impressions of Counsel — 2010 Expert Rules Amendments

Affidavits Excluded for Failure to Identify Affiants in Initial or Supplemental Disclosures, Even Though Exclusion Is Tantamount to Dismissal — Factors for Exclusion and for Dismissal Sanctions

Rule 16(f) Sanctions — Pro Se Litigants Not Entitled to Disobey Two Orders before a Default or Dismissal Can Be Declared — Extrajudicial Rudeness Separately Sanctioned and Forms Part of Basis for Default Dismissal

Sanction Consisting of Award of Attorney’s Fees Not Yet Reduced to a Sum Certain Is Not Appealable

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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