Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552 (D.S.C. May 8, 2008). Drafts of Disclosure Documents. The opinion explores the split in the case law concer ...

The Minnesota Supreme Court in In re UnitedHealth Group Inc. Shareholder Deriv. Litig.,2008 Minn. LEXIS 419 (Minn. S.Ct. Aug. 14, 2008), answering a certified question from the United States District Court for the District of Minnesota, adopted the highly deferential standard of Auerbach v. Bennett, 47 N.Y.2d 619, 393 N.E.2d 994, 999-1000, 419 N.Y.S.2 ...

Plaintiff Michael Savage in Savage v. Council on Am.-Islamic Relations, Inc., 2008 U.S. Dist. LEXIS 60545 (N.D. Cal. July 25, 2008), a talk show host, filed a RICO suit based on the defendant’s (i) having posted on its website a four minute clip from the plaintiff’s broadcast together with extensive criticism of what the plaintiff said, and (ii) sending p ...

From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded "on the ground that the court believes one version of the facts and not the other." Allstate Insurance Co. v. Hugh Cole Builder Inc., 137 F.Supp.2d 1283, 1285 (M.D. Ala. 2001) ...

The Sixth Circuit affirmed one of the largest sanctions awards in history — a default judgment in the amount of approximately $5.4 million in favor of Allstate Insurance Company — for rampant discovery abuse in Grange Mut. Cas. Co. v. Mack, 270 F. App’x 372 (6th Cir. 2008). The four-part test applied by the Court in assessing the propriety of a defaul ...

From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to "nudge [its RICO continuity] claim[] across the line from conceivable to plausible." As did Twombly, this case involves a federal statute under whi ...

From United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008): In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case of a bench trial. As the Seventh Circuit has held: It is not that evidence may be less reliable during a ...

From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008): Rite Aid correctly argues that the seven-factor Zubulake test which Judge Larson applied is intended solely for electronic discovery, not for discovery of paper documents. The Zubulake opinion sought to refine a set of factors which had b ...

From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008): Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm's improper citation in the fact section of its brief, and throughout other parts of its brief to a lesser extent, to transcript and d ...

From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008): Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party. Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the ...