On Friday afternoon, March 14, 2008, I participated in a conference call with House Judiciary Committee staffers concerning proposed Federal Rule of Evidence 502 (waiver of privilege and work product). The good news is that they agreed that there is a problem that needs to be addressed -- a threshold which, they said, is rarely crossed. The bad news is that they f ...

Learned Treatises by Interested Authors. A key issue in In re Welding Fume Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 14319 (N.D. Ohio Feb. 19, 2008), was whether, and to what extent, exposure to welding fumes can cause neurological damage. The parties relied, on direct and cross-examination and on motion practice, on scientific, medical, and epidemiol ...

Permitting the plaintiff to serve a trial subpoena on a distant individual defendant, the Court in Clark v. Wilkin, 2008 U.S. Dist. LEXIS 18419 (D. Utah March 10, 2008) noted a split on the issue: While there is a split among courts on this issue, the majority of courts, including this Court, have found that when a subpoena is served upon ...

From Orchard Motorcycle Dist., Inc. v. Morrison Cohen Singer & Weinstein LLP, 2008 NY Slip Op 1996, 2008 N.Y. App. Div. LEXIS 1864 (1st Dep’t March 6, 2008): The expert's affidavit was enough to sustain defendant's prima facie burden on the motion for summary dismissal of the legal malpractice claim, shifting the burden to plaintiffs ...

For an excellent article by Eric Sherby analyzing the use of 28 U.S.C. § 1782 (which authorizes the taking of evidence in the United States for proceedings abroad) in federal district court decisions as a factor in resolving forum non conveniens motions, go to http://www.sherby.co.il/200803ILQ.pdf. Eric is a prominent Israeli practitioner who practiced succ ...

In Ellenburg v. Spartan Motors Chassis, Inc., 2008 U.S. App. LEXIS 5076 (4th Cir. March 10, 2008), the Fourth Circuit joined every other Circuit that has considered the issue in holding that a “district court is prohibited from remanding a case sua sponte based on a procedural defect absent a motion to do so from a party.” The case raised ...

From West Village Assocs. LP v. Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, 2008 NY Slip Op 1844, 2008 N.Y. App. Div. LEXIS 1822 (1st Dep’t March 4, 2008): Under the "continuous representation" doctrine ... a client cannot reasonably be expected to assess the quality of the professional service while it is still in progress ...

Someday the Supreme Court will have to address whether structure is a necessary aspect of a viable association-in-fact enterprise under RICO. Until then, the Circuit split persists. From the Fifth Circuit decision in Matter of McCann, 2008 U.S. App. LEXIS 4978 (5th Cir. Mar. 7, 2008) (unpublished): This Court has previously declined the ...

From a speech on March 7, 2008, to the Spring Meeting of the American College of Trial Lawyers in Tucson by Hon. Thomas W. Thrash, Jr., of the United States District Court for the Northern District of Georgia: It may be of some interest to a group of attorneys that during this session of the Georgia General Assembly, a bill has been introduced ...

Section 1927 penalties may be imposed only on “any attorney or other person admitted to conduct cases in any court of the United States.” Law firms are not admitted to practice in the federal courts. Nonetheless, there is a split in the Circuits as to whether sanctions may be imposed on law firms pursuant to 28 U.S.C. § 1927. See Medtronic Navigation Inc. ...