The plaintiffs in Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151 (E.D. Tex. Oct. 31, 2008), had engaged a Canadian lawyer/U.S. patent agent named Waraksa but later became dissatisfied with his work. In this patent action, defense counsel interviewed Waraksa and sought to take his deposition. Plaintiffs’ counsel sought the inte ...

Earlier this year, the Supreme Court ruled in Hall Street Assocs. LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008), that the Federal Arbitration Act “confines its expedited judicial review to the grounds listed in 9 U.S.C. §§ 10 and 11,” id. at 1408, and “manifest disregard of the law” nowhere appears in those sections. Therefore, one would think, the ma ...

A new article, entitled The Impact of Federal Rule of Evidence 502(d) on Protective Orders has been posted on the Recent Articles page at http://www.josephny_live.com/articles/viewarticle.php?59. The article discusses the manner in which protective orders -- specifically, provisions clawing back privileged information that has been disclosed -- should now be ...

From Wilson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88429 (M.D.Fla Oct. 17, 2008), an employment action predicated on both federal and state law claims: While federal law governs the imposition of sanctions for spoliation of evidence, the Court may look to state law for guidance to the extent that it is consistent with federal law ...

From Gipson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88928 (S.D. Tex. Nov. 3, 2008): [Footnote] 2 "Fraudulent joinder" does not require a showing that the plaintiff had an intent to deceive or knew that the facts alleged were false. [Citation omitted; end of footnote.] The burden of persuasion on those who claim fraudulen ...

From Sommerfield v. City of Chicago, 2008 U.S. Dist. LEXIS 88760 (N.D. Ill. Nov. 3, 2008): Acceptance of the notion that an expert can reasonably base his opinion on summaries of deposition testimony prepared by a party's lawyer would effectively eliminate Daubert 's insistence that an expert's opinion be grounded on reliable infor ...

From Randleman v. Fidelity Nat’l Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008): Although questions of evidentiary privilege arising in the context of a state law claim are governed by state law, Fed. R. Evid. 501, the work product doctrine, Fed. R. Civ. P. 26(b)(3), is not an evidentiary privilege. Consequently, the scope of the wor ...

From Mr. Rooter Corp. v. Mr. Plumber, Rooter & Plumbing Servs., LLC, 2008 U.S. Dist. LEXIS 85836 (D. Nev. Oct. 6, 2008): The federal court has inherent power to levy sanctions, including attorneys' fees, for "willful disobedience of a court order." Roadway Express v. Piper, 447 U.S. 752, 766 (1980).... [D]espite the court's rep ...

From Wheatley v. Moe’s SW Grill, LLC, 2008 U.S. Dist. LEXIS 88108 (N.D. Ga. Sept. 30, 2008): ...Rule 68 and O.C.G.A. § 9-11-68 are not in "direct collision" with one another. Rule 68 is available only to a party defending against a claim, whereas O.C.G.A. § 9-11-68 is available to both plaintiffs and defendants. Moreover, Rule 68 a ...

From Gallagher v. Southern Source Packaging, 568 F. Supp. 2d 624 (E.D.N.C. 2008): Supplementation of an expert report permits a party to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid summary judgment. See, e.g., Beller ex rel. Beller v. United States,