Complex Lit Blog

Response to Document Request Must Identify Which Previously-Produced Documents Are Responsive — Non-Specific = Evasive — When Failure to Timely Provide Privilege Log Effects Waiver of Privilege (Good Quote)

From USF Ins. Co. v. Smith’s Food & Drug Ctr., Inc., 2011 U.S. Dist. LEXIS 63926 (D. Nev. June 16, 2011): Smith's first response to Request Nos. 5, 6 and 9-25 consisted solely of a repeated boilerplate objection. Its supplemental responses to each of these requests likewise consisted of a substantially similar, repeated response:

From USF Ins. Co. v. Smith’s Food & Drug Ctr., Inc., 2011 U.S. Dist. LEXIS 63926 (D. Nev. June 16, 2011): Smith’s first response to Request Nos. 5, 6 and 9-25 consisted solely of a repeated boilerplate objection. Its supplemental…

Inherent Power Sanction of Dismissal Appropriate for Refusing to Respect the Dignity of the Court

From Koehl v. Greene, 2011 U.S. App. LEXIS 12345 (2d Cir. June 16, 2011): The district court "has the inherent power to supervise and control its own proceedings and to sanction . . . a litigant for bad-faith conduct or for disobeying the court's orders." Mickle v. Morin, 297 F.3d 114, 125 (2d Cir. 2002). Among the sanctions available t ...

From Koehl v. Greene, 2011 U.S. App. LEXIS 12345 (2d Cir. June 16, 2011): The district court “has the inherent power to supervise and control its own proceedings and to sanction . . . a litigant for bad-faith conduct or…

Supreme Court: Fiduciary Exception to Attorney-Client Privilege Does Not Apply to U.S. as Trustee of Funds Belonging to Indian Tribes

From United States v. Jicarilla Apache Nation, 2011 U.S. LEXIS 4381 (U.S. June 13, 2011) (reversing the decision excerpted in our post of January 3, 2010): The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law. The common law, however, has recognized an exception to the privile ...

Supreme Court: Foreign Manufacturer’s Single Sale into State Plus General Marketing in U.S. Insufficient to Support Personal Jurisdiction in Products Case — Stream of Commerce Theory Limited — Means of Consenting to Jurisdiction

From J. McIntyre Machinery, Ltd. v. Nicastro, 2011 U.S. LEXIS 4800 (U.S. June 27, 2011) (plurality opinion of Justice Kennedy): Whether a person or entity is subject to the jurisdiction of a state court despite not having been present in the State either at the time of suit or at the time of the alleged injury, and despite not h ...

Supreme Court: Personal Jurisdiction — Stream of Commerce Theory Relevant Only to Specific Jurisdiction — Foreign Subsidiaries of U.S. Parent Not Subject to Personal Jurisdiction in State Court for Acts Unrelated to State

From Goodyear Dunlop Tires Operations, S.A. v. Brown, 2011 U.S. LEXIS 4801 (U.S. June 27, 2011): This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on ...

Supreme Court: Only Speaker or Person with Ultimate Authority for Content of Statement Is Liable under 10b-5 for “Making” It — Merely Hosting Document on Website ≠ Adopting It

From Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380 (U.S. June 13, 2011): One "makes" a statement by stating it. When "make" is paired with a noun expressing the action of a verb, the resulting phrase is "approximately equivalent in sense" to that verb. 6 Oxford English Dictionary 66 ...

From Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380 (U.S. June 13, 2011): One “makes” a statement by stating it. When “make” is paired with a noun expressing the action of…

Supreme Court: Federal Common Law Survives Erie — If Congress Has Statutorily Delegated an Area to Agency Expertise, the Statute Displaces (Preempts) Federal Common Law

From Am. Elec. Power Co. v. Connecticut, 2011 U.S. LEXIS 4565 (U.S. June 20, 2011): We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and ...

Class Actions: Supreme Court Strictly Defines Commonality under Rule 23(a) — Merits Rightly Considered on Certification — Daubert Alm ost Certainly Applies at Certification Stage

From Wal-Mart Stores, Inc. v. Dukes, 2011 U.S. LEXIS 4567 (June 20, 2011): The crux of this case is commonality — the rule requiring a plaintiff to show that "there are questions of law or fact common to the class." Rule 23(a)(2). Footnote 5. We have previously stated in this context that "[t]he commonality ...

From Wal-Mart Stores, Inc. v. Dukes, 2011 U.S. LEXIS 4567 (June 20, 2011): The crux of this case is commonality — the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.”…

Sixth Circuit Agrees with D.C. and Not First that Disclosure of Privileged Matter to Client’s Accountant Does Not Effect Waiver — Fact Lawyer Has Conflict Does Not Affect Client’s Right to Assert Privilege

From New Phoenix Sunrise Corp. v. Comm’r IRS, 408 F. App'x 908 (6th Cir. 2010): II. Reasonable Cause Exception The Commissioner assessed a 40% underpayment penalty applicable to valuation misstatements of more than 400% against New Phoenix. See I.R.C. § 6662(h). New Phoenix seeks to avoid this penalty by invoking the reasonabl ...

From New Phoenix Sunrise Corp. v. Comm’r IRS, 408 F. App’x 908 (6th Cir. 2010): II. Reasonable Cause Exception The Commissioner assessed a 40% underpayment penalty applicable to valuation misstatements of more than 400% against New Phoenix. See I.R.C. §…

Weighing Work Product Claims by Insurance Companies — No Bright Line Test

From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011): As the Fourth Circuit has explained, "the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product immunity." Nat'l Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., Inc, 967 F.2d 980, 984 ...

From Botkin v. Donegal Mut. Ins. Co., 2011 U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011): As the Fourth Circuit has explained, “the mere fact that litigation does eventually ensue does not, by itself, cloak materials with work product…

Commercial Litigation and Arbitration

Response to Document Request Must Identify Which Previously-Produced Documents Are Responsive — Non-Specific = Evasive — When Failure to Timely Provide Privilege Log Effects Waiver of Privilege (Good Quote)

Inherent Power Sanction of Dismissal Appropriate for Refusing to Respect the Dignity of the Court

Supreme Court: Fiduciary Exception to Attorney-Client Privilege Does Not Apply to U.S. as Trustee of Funds Belonging to Indian Tribes

Supreme Court: Foreign Manufacturer’s Single Sale into State Plus General Marketing in U.S. Insufficient to Support Personal Jurisdiction in Products Case — Stream of Commerce Theory Limited — Means of Consenting to Jurisdiction

Supreme Court: Personal Jurisdiction — Stream of Commerce Theory Relevant Only to Specific Jurisdiction — Foreign Subsidiaries of U.S. Parent Not Subject to Personal Jurisdiction in State Court for Acts Unrelated to State

Supreme Court: Only Speaker or Person with Ultimate Authority for Content of Statement Is Liable under 10b-5 for “Making” It — Merely Hosting Document on Website ≠ Adopting It

Supreme Court: Federal Common Law Survives Erie — If Congress Has Statutorily Delegated an Area to Agency Expertise, the Statute Displaces (Preempts) Federal Common Law

Class Actions: Supreme Court Strictly Defines Commonality under Rule 23(a) — Merits Rightly Considered on Certification — Daubert Alm ost Certainly Applies at Certification Stage

Sixth Circuit Agrees with D.C. and Not First that Disclosure of Privileged Matter to Client’s Accountant Does Not Effect Waiver — Fact Lawyer Has Conflict Does Not Affect Client’s Right to Assert Privilege

Weighing Work Product Claims by Insurance Companies — No Bright Line Test

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

Archives

New York Office