Complex Lit Blog

No Right to Sidebars during Presentation of Testimony at Trial

From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011): Sidebars Aleynikov contends that the Court's denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was acting improperly in requesting a sidebar. Aleynikov has not shown that he ...

From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011): Sidebars Aleynikov contends that the Court’s denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was…

No “Substantial Ground for Difference of Opinion” for § 1292 Purposes Where 14 District Courts in Circuit Have Addressed the Issue

From In re Regions Morgan Keegan ERISA Litig., 741 F. Supp. 2d 844 (W.D. Tenn. 2010): In deciding whether to grant an interlocutory appeal [under 28 U.S.C. § 1292], the Court considers three factors: (1) whether the order involves a "controlling question of law"; (2) whether there is "substantial ground for difference of opinion" a ...

The Importance of Rule 403 in Evaluating Expert Testimony — Good Quote

From Brown v. Nat’l R.R. Passenger Corp., 2011 U.S. Dist. LEXIS 33216 (S.D. Miss. Mar. 28, 2011): [I]f an expert's testimony survives the threshold scrutiny under Rule 702, it is subject to further review under Rule 403. See Daubert, 509 U.S. at 595; Brock v. Caterpillar, Inc., 94 F.3d 220, 226 (6th Cir. 1996). "[E]xpert evidence can ...

From Brown v. Nat’l R.R. Passenger Corp., 2011 U.S. Dist. LEXIS 33216 (S.D. Miss. Mar. 28, 2011): [I]f an expert’s testimony survives the threshold scrutiny under Rule 702, it is subject to further review under Rule 403. See Daubert, 509…

Samples of Overly Broad and Burdensome Interrogatories — Party May Not Refuse to Answer Interrogatories, Then Claim the Interrogatories Are Cumulative of Later Deposition — Examples of Meritorious Cumulativeness Objections

From SEC v. Berry, 2011 U.S. Dist. LEXIS 39907 (N.D. Cal. April 1, 2011): [Sample Overly Broad and Burdensome Interrogatories.] The SEC correctly points out that none of the authority cited by Berry supports her claim that the interrogatories are, "by [their] nature," overbroad and unduly burdensome. Indeed, the cases cited by ...

Mandatory Abstention from Federal “Related to” Bankruptcy Jurisdiction — What Constitutes “Timely Adjudicated” within 28 U.S.C. § 1334(c)(2)

From Parmalat Capital Finance Limited v. Bank of Am. Corp., 632 F.3d 71 (2d Cir. 2011): The questions presented are (1) whether the district court erred in exercising jurisdiction over plaintiffs' claims, pursuant to 28 U.S.C. § 1334(b); and (2) whether the district court properly declined to abstain from exercising that jurisdiction, p ...

From Parmalat Capital Finance Limited v. Bank of Am. Corp., 632 F.3d 71 (2d Cir. 2011): The questions presented are (1) whether the district court erred in exercising jurisdiction over plaintiffs’ claims, pursuant to 28 U.S.C. § 1334(b); and (2)…

When Sanctions Rule Provides “Substantially Justified” Defense, District Court Must Rule Whether Conduct was Substantially Justified — Deposition Misconduct and Untimely, Revised, Post-Deposition Expert Report

From DeVille v. Givaudan Frangrances Corp., 2011 U.S. App. LEXIS 6245 (3d Cir. Mar. 25, 2011): Two discovery events are relevant to this appeal. The first occurred during the deposition of an expert witness named Michael Soudry. Elliott produced Soudry to testify about alleged statistical evidence [*5] of age discrimination at Givaudan ...

Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Effected Waiver of Privilege and Work Product — Client’s Assertion of Advice of Counsel Defense Prevails

From SEC v. McNaul, 271 F.R.D. 661 (D. Kan. 2010): In January 2009, the Receiver issued and served a subpoena on Baker & McKenzie seeking documents related to the firm's former representation of several defendants in this action. *** Baker & McKenzie [maintains] that while the Receiver is the successor-in-interest to the corporat ...

From SEC v. McNaul, 271 F.R.D. 661 (D. Kan. 2010): In January 2009, the Receiver issued and served a subpoena on Baker & McKenzie seeking documents related to the firm’s former representation of several defendants in this action. *** Baker…

Pendent Venue — Discretionary — Two Approaches

From Vivant Pharma., LLC v. Clinical Formula, LLC, 2011 U.S. Dist. LEXIS 37343 (S.D. Fla. Mar. 31, 2011): Vivant's Amended Complaint alleges various causes of action for patent infringement, federal and common law trademark infringement, federal and common law unfair competition, misappropriation of trade secrets, breach of contract, br ...

From Vivant Pharma., LLC v. Clinical Formula, LLC, 2011 U.S. Dist. LEXIS 37343 (S.D. Fla. Mar. 31, 2011): Vivant’s Amended Complaint alleges various causes of action for patent infringement, federal and common law trademark infringement, federal and common law unfair…

New York Justices on the U.S. Supreme Court: John Jay

Download associated file: John Jay Lecture NY Justices on US Supreme Court.pdf On Wednesday, May 4, 2011, Justice Ruth Bader Ginsburg and former Chief Judge Judith Kaye will be introducing a lecture on John Jay, the first Chief Justice of the U.S. Supreme Court, as part ...

Interrogatories Asking Who Has Been Interviewed and What They Said Are Permissible Unless Asked in a Way that Effectively Infringes on Work Product — Good Quote

From United States v. Capital Tax Corp., 2011 U.S. Dist. LEXIS 13242 (N.D. Ill. Feb. 10, 2011): The challenged interrogatories and document requests ask the government to identify, among other things, each person who made decisions regarding whether to name Dukatt in this case, the dates on which those determinations were made, and any d ...

Commercial Litigation and Arbitration

No Right to Sidebars during Presentation of Testimony at Trial

No “Substantial Ground for Difference of Opinion” for § 1292 Purposes Where 14 District Courts in Circuit Have Addressed the Issue

The Importance of Rule 403 in Evaluating Expert Testimony — Good Quote

Samples of Overly Broad and Burdensome Interrogatories — Party May Not Refuse to Answer Interrogatories, Then Claim the Interrogatories Are Cumulative of Later Deposition — Examples of Meritorious Cumulativeness Objections

Mandatory Abstention from Federal “Related to” Bankruptcy Jurisdiction — What Constitutes “Timely Adjudicated” within 28 U.S.C. § 1334(c)(2)

When Sanctions Rule Provides “Substantially Justified” Defense, District Court Must Rule Whether Conduct was Substantially Justified — Deposition Misconduct and Untimely, Revised, Post-Deposition Expert Report

Counsel Not Permitted to Make Independent Claim of Work Product Where Client Has Effected Waiver of Privilege and Work Product — Client’s Assertion of Advice of Counsel Defense Prevails

Pendent Venue — Discretionary — Two Approaches

New York Justices on the U.S. Supreme Court: John Jay

Interrogatories Asking Who Has Been Interviewed and What They Said Are Permissible Unless Asked in a Way that Effectively Infringes on Work Product — Good Quote

Recent Posts

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

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