The Advisory Committee's proposed amendments to Rule 26 concerning expert discovery and disclosure are posted at the blog entry for July 4, 2008. My thoughts: The Rule 26 amendments extremely well done. I like the balances struck, the language and particularly the new summary of opinions of Rule 26(a)(2)(A) witnesses. There are two practical problems that ...

From In re Monster Worldwide, Inc. Secs. Litig., 2008 U.S. Dist. LEXIS 53466 (S.D.N.Y. July 14, 2008): Here, as part of class certification discovery, defendants deposed STA-ILA [Steamship Trade Association-International Longshoremen's Association Pension Fund] witness Horace Alston, Co-Chairman of the fund, who testified that he was the ...

The defendant in Neville v. Value City Dep’t Stores, LLC, 2008 U.S. Dist. LEXIS 55284 (S.D. Ill. July 18, 2008), removed this trip and fall case based on diversity jurisdiction. More than a year later, the plaintiff filed a motion to remand, claiming that the amount in controversy did not exceed $75,000: Although § 1447(c) provides no ...

It is well settled that governmental entities cannot be sued under RICO because they lack the necessary mens rea to commit the predicate crimes on which RICO liability depends. Joseph, Civil RICO: A Definitive Guide § 11 (2d ed. 2000). From this premise, the Ninth Circuit reasoned in Pesnell v. Arsenaut, 2008 U.S. App. LEXIS 13834 (9th Cir. ...

The Second Circuit affirmed Judge Denny Chin’s judgment of acquittal of New York Stock Exchange specialist David Finnerty in United States v. Finnerty, 2008 U.S. App. LEXIS 15296 (2d Cir. July 18, 2008). Finnerty was charged with a criminal violation of § 10(b) and Rule 10b-5 by “interpositioning,” which the Court defined as arbitraging the spread bet ...

The plaintiff’s expert in Betts v. General Motors Corp., 2008 U.S. Dist. LEXIS 54350 (N.D. Miss. July 16, 2008), made material changes to his deposition testimony in his errata sheet but gave no reason for the changes. Held, changes barred and no amended errata sheet permitted: Rule 30(e) of the Federal Rules of Civil Procedure provide ...

From Wallace v. UAW Local 1639, 2008 U.S. Dist. LEXIS 52750 (S.D. Ala. July 9, 2008), a pro se action by a union member against a union alleging civil rights violations in connection with her employment: The Court understands that Wallace has suggested in passing that she is impoverished and unable to pay the $1,754.05 sanction imposed ...

After losing a state court judgment, HealthNet, Inc. filed a federal action to block enforcement of that judgment. The trial judge dismissed the action and imposed sanctions on HealthNet’s counsel. The Fifth Circuit, in HealthNet, Inc. v. Wooley, 2008 U.S. App. LEXIS 14326 (5th Cir. July 8, 2008), affirmed the dismissal but overturned the sanctions:

The Seventh Circuit held in Lopez de Manez v. Bridgestone Firestone N. Am. Tire, LLC, 2008 U.S. App. LEXIS 14802 (7th Cir. July 11, 2008), that an order dismissing a case on forum non conveniens grounds is appealable because it terminates the action and is denominated “without prejudice” simply to make it clear that the plaintiff may proceed in an alterna ...

The non-party recipient of a Rule 45 subpoena in In re Intel Corp. Microprocessor Antitrust Litig., 2007 LEXIS 97229 (D. Del. Dec. 13, 2007) was found by the Special Master to have engaged in obstruction and other misconduct in responding (or, more precisely, failing to respond) to a subpoena. The misconduct included: 1. Taking the posi ...