From CFTC v. Lake Shore Asset Management Ltd., 2008 U.S. Dist. LEXIS 26502 (N.D. Ill. April 1, 2008): • “The problems in this case fall into two categories: (1) overly aggressive advocacy; and (2) the failure to acknowledge prior adverse rulings when allegedly raising these previously-rejected arguments to preserve the record.” ...

An opponent has the right to depose a testifying expert (after the report is issued) under Fed.R.Civ.P. 26(b)(4)(A) but may depose a non-testifying expert only in “exceptional circumstances” under Rule 26(b)(4)(B). What if a testifying expert is later re-designated a non-testifying expert? What test is used to determine whether the re-classified witness may be ...

The United States District Court for the District of the Virgin Islands held in Mendez v. Hovenza, LLC, 2008 U.S. Dist. LEXIS 25127 (D. V.I. March 24, 2008), that: (1) “Because the common law, as generally understood and applied in the United States, does not provide for a tort of negligent spoliation against a first-party defendant, the Court predicts th ...

Stephen Jones, Timothy McVeigh’s lead defense counsel in the Oklahoma City Bombing case, donated to the University of Texas voluminous materials that he received from the Government during the preparation of McVeigh's defense. The question in Jones v. Commissioner, 129 T.C. 146, 2007 U.S. Tax Ct. LEXIS 34 (Tax Ct. Nov. 1, 2007), was whether Jones and his w ...

The University of Kansas (“KU”), in University of Kansas v. Sinks, 2008 U.S. Dist. LEXIS 23765 (D. Kan. Mar. 19, 2008), was suing to prevent unauthorized sale of KU apparel. In support of its motion for summary judgment, the plaintiff offered what the court described as “weblog entries ... certain internet postings to the Lawrence Journal-World ...

How does a CEO know anything? They are not in the field; they are not on the floor; they are not compiling the numbers; but they are required to be intimately acquainted with sales, operations and finance. Does that mean they lack firsthand knowledge sufficient to permit them to testify? Or is there a sphere of knowledge that CEOs — and other corporate executiv ...

From Keck Garrett & Assocs., Inc. v. Nextel Commc’ns, Inc., 2008 U.S. App. LEXIS 3649 (7th Cir. Feb. 21, 2008): To the extent that Keck Garrett is attempting to appeal this matter, we are without jurisdiction. Keck Garrett filed a motion for sanctions in the district court, but, insofar as the record before us indicates, the district co ...

Under Federal Rules of Civil Procedure 26(a)(2)(B) and 37(c), the failure of a retained expert to submit the requisite, detailed report in a timely fashion presumptively leads to exclusion of the expert’s testimony at trial. But the strictures of Rule 26(a)(2)(B) do not apply in the pre-trial setting of the Daubert hearing. Among other things, that means that on ...

Appalachian Railcar Servs., Inc. v. Boatright Enters., Inc., 2008 U.S. Dist. LEXIS 23940 (E.D. Mich. March 25, 2008) holds that there is no independent cause of action for spoliation against a party (that, of course, does not preclude sanctions). In urging the opposite result, the plaintiff relied on a dissenting opinion in an intermediate appellate court de ...

From Livingston v. Wyeth, Inc., 2008 U.S. App. LEXIS 6088 (4th Cir. Mar. 24, 2008): [T]o establish a cause of action under 18 U.S.C. § 1514A [Section 806 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 802-04 (2002)], [the plaintiff] must show, in the context of this case, by a preponderance of the evidence that (1 ...