Complex Lit Blog

Joint Defense / Common Interest Privilege — Circuit Split as to Whether Parties Must Anticipate Litigation for the Privilege to Apply — Written Agreement Unnecessary — What Is a Common Legal Interest?

United States v. Env’l Defense Fund, 2012 U.S. Dist. LEXIS 59565 (M.D. N.C. 2012): VI. JOINT DEFENSE OR COMMON INTEREST RULE The Fourth Circuit recognizes an exception to waiver of attorney-client privilege in the joint defense rule, now "more properly identified as the 'common interest rule.'" In re Grand Jury Subp ...

The Lingering Question Whether Spoliation Sanctions Are Governed by State or Federal Law

Capogrosso v. 30 River Court East Urban Renewal Co., 2012 U.S. App. LEXIS 9835 (3d Cir. May 16, 2012): Eleanor Capogrosso, a licensed attorney, appeals from the District Court's dismissal of various complaints related to property damage allegedly suffered as a result of an incident involving a water pipe in her apartment. Following the ...

Capogrosso v. 30 River Court East Urban Renewal Co., 2012 U.S. App. LEXIS 9835 (3d Cir. May 16, 2012): Eleanor Capogrosso, a licensed attorney, appeals from the District Court’s dismissal of various complaints related to property damage allegedly suffered as…

Cost of Unsafe Medical Procedure ≠ RICO Injury — Fraud Claim Duplicative of Malpractice Claim Must Be Dismissed Absent Separate and Distinct Injury

Gotlin v. Lederman, 2012 U.S. App. LEXIS 8790 (2d Cir. May 1, 2012): In this action, Gotlin asserts, inter alia, that defendants fraudulently misrepresented the efficacy of a particular form of cancer treatment, Fractionated Stereotactic Radiosurgery ("FSR"), and therefore unlawfully induced the decedents to unnecessarily undergo an ine ...

Proposed Standard Voir Dire Jury Instruction Cautioning Jurors Against Social Media and Internet Use — Florida Supreme Court

From In re Standard Jury Instructions in Criminal Cases — Report, 2012 Fla. LEXIS 961 (Fla. Sup. Ct. May 17, 2012): QUALIFICATIONS INSTRUCTION Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about usin ...

Class Actions — Circuit Splits on the Application of American Pipe

Barkley v. Woodbury County, 2012 U.S. Dist. LEXIS 71747 (N.D. Iowa May 23, 2012): 3. The tolling rule for members of a prior putative class a. The general rule The Eighth Circuit Court of Appeals has explained the "American Pipe rule," as follows: In American Pipe & Construction Co. v. Ut ...

Perlman Exception Allowing Appeal of Privilege Ruling When Documents Held by Third Party Does Not Apply When Order Directs Privilege Holder to Secure Production by Third Party — Presidential Exception — Impact of Mohawk on Perlman

In re Grand Jury ABC Corp., 2012 U.S. App. LEXIS 10558 (3d Cir. May 24, 2012) (note: this opinion was withdrawn on December 11, 2012, in In re Grand Jury, 2012 U.S. App. LEXIS 25318 (3d Cir. Dec. 11, 2012), which is subsequently excerpted on this blog in January 2013): ABC Corp., John Doe 1, and John Doe 2 seek to appeal ...

Compulsory Counterclaims under Rule 13 — Competing Plain-Meaning and Real-Party-in-Interest Tests — What Is an “Opposing” Party?

Thayer v. Owens, 2012 U.S. Dist. LEXIS 72915 (C.D. Utah May 24, 2012): Prior to July 2009, Homer Owens ("Homer") and Emerald Owens ("Defendant") lived together as husband and wife at their residence in California. Although the facts are incomplete, it appears that Homer has suffered from a form of mental illness or incapacity for some t ...

Thayer v. Owens, 2012 U.S. Dist. LEXIS 72915 (C.D. Utah May 24, 2012): Prior to July 2009, Homer Owens (“Homer”) and Emerald Owens (“Defendant”) lived together as husband and wife at their residence in California. Although the facts are incomplete,…

Rule 407 Applies in Contract Action — Bars Evidence of Post-Claim Change in Contract Language — OK to Grant New Trial Due to Error in Excluding Evidence under Rule 403 — Good Quote on Dangers of Limiting Cross

Reynolds v. Univ. of Pennsylvania, 2012 U.S. App. LEXIS 10641 (3d Cir. May 25, 2012): Reynolds applied to and enrolled in the Executive Masters in Technology Management ("EMTM") program at the University of Pennsylvania in 2002 and claims that at that time he was told that the EMTM students would be considered graduates and alumni of Wh ...

Reynolds v. Univ. of Pennsylvania, 2012 U.S. App. LEXIS 10641 (3d Cir. May 25, 2012): Reynolds applied to and enrolled in the Executive Masters in Technology Management (“EMTM”) program at the University of Pennsylvania in 2002 and claims that at…

Contempt for Violation of Protective Order under Rule 37(c) — Standards for Contempt

Dorsett v. County of Nassau, 2012 U.S. Dist. LEXIS 71445 (E.D.N.Y. May 22, 2012): Presently before the Court is a motion to intervene by non-party the Police Benevolent Association of the Police Department of the County of Nassau, New York, Inc. ("PBA"), to enforce this Court's December 15, 2011 Confidentiality Order ("Confidentiality O ...

Collateral Estoppel — Default Judgment Entered as a Sanction for Refusal to Comply with Discovery Order Has Preclusive Effect

Sartin v. Macik, 535 F.3d 284 (4th Cir. 2008): [E]very federal circuit court to consider the question has held that a default judgment entered as a sanction for refusal to comply with discovery orders has preclusive effect. See In re Ansari, 113 F.3d 17, 19 (4th Cir. 1997) (applying Virginia law); In re Docteroff, 133 F.3d 210, 215 (3d C ...

Commercial Litigation and Arbitration

Joint Defense / Common Interest Privilege — Circuit Split as to Whether Parties Must Anticipate Litigation for the Privilege to Apply — Written Agreement Unnecessary — What Is a Common Legal Interest?

The Lingering Question Whether Spoliation Sanctions Are Governed by State or Federal Law

Cost of Unsafe Medical Procedure ≠ RICO Injury — Fraud Claim Duplicative of Malpractice Claim Must Be Dismissed Absent Separate and Distinct Injury

Proposed Standard Voir Dire Jury Instruction Cautioning Jurors Against Social Media and Internet Use — Florida Supreme Court

Class Actions — Circuit Splits on the Application of American Pipe

Perlman Exception Allowing Appeal of Privilege Ruling When Documents Held by Third Party Does Not Apply When Order Directs Privilege Holder to Secure Production by Third Party — Presidential Exception — Impact of Mohawk on Perlman

Compulsory Counterclaims under Rule 13 — Competing Plain-Meaning and Real-Party-in-Interest Tests — What Is an “Opposing” Party?

Rule 407 Applies in Contract Action — Bars Evidence of Post-Claim Change in Contract Language — OK to Grant New Trial Due to Error in Excluding Evidence under Rule 403 — Good Quote on Dangers of Limiting Cross

Contempt for Violation of Protective Order under Rule 37(c) — Standards for Contempt

Collateral Estoppel — Default Judgment Entered as a Sanction for Refusal to Comply with Discovery Order Has Preclusive Effect

Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

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