New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Electronic Discovery — Metadata — Timing Is Everything

From Autotech Techs. LP v. AutomationDirect.com, 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. April 2, 2008): It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format. Ordinarily, courts will not compel the production of metadata when a party did not make that a ...
From Autotech Techs. LP v. AutomationDirect.com, 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. April 2, 2008): It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.…
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Website Evidence on Valuation

The issue in Tippie v. Patnik, 2008 Ohio 1653; 2008 Ohio App. LEXIS 1429 (Ohio App. April 4, 2008), was the valuation of certain gold and silver items in a divorce context. Much of the case revolved around Ohio Rule 701 and the ability of the owner to testify as to value. The trial judge excluded certain printouts taken from the Internet. The majority affi ...
The issue in Tippie v. Patnik, 2008 Ohio 1653; 2008 Ohio App. LEXIS 1429 (Ohio App. April 4, 2008), was the valuation of certain gold and silver items in a divorce context. Much of the case revolved around Ohio Rule…
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$72 Million Sanctions Award Against FDIC Reversed and Remanded

The Fifth Circuit reversed one of the largest sanctions awards ever imposed in Fed. Deposit Ins. Corp. v. Maxxam, Inc., 2008 U.S. App. LEXIS 7221 (5th Cir. April 3, 2008). The Court reversed outright $56 million of a $72 million sanctions award and vacated and remanded the remainder -- although millions will likely still have to be paid. A key conten ...
The Fifth Circuit reversed one of the largest sanctions awards ever imposed in Fed. Deposit Ins. Corp. v. Maxxam, Inc., 2008 U.S. App. LEXIS 7221 (5th Cir. April 3, 2008). The Court reversed outright $56 million of a $72 million…
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Privilege — Waiver by Use of Company Email System

Held, an employee’s use of a corporate computer to transmit or receive privileged communications waives the privilege when the employee is on notice that the employer reserves the right to review the communications. United States v. Etkin, 2008 U.S. Dist. LEXIS 12834 (S.D.N.Y. Feb. 19, 2008) (employees do not have a reasonable expectation of privacy in th ...
Held, an employee’s use of a corporate computer to transmit or receive privileged communications waives the privilege when the employee is on notice that the employer reserves the right to review the communications. United States v. Etkin, 2008 U.S. Dist.…
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Sanctions — Refusal to Accept That You’ve Lost

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.” ...
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…
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Is There a Right to Depose an Expert Who Is Designated Non-Testifying After Initially Having Been Designated Testifying?

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 ...
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…
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Cause of Action for Intentional, but Not Negligent, Spoliation Recognized in U.S. Virgin Islands

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 ...
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…
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What Do You Own? McVeigh’s Lawyer Doesn’t Own Files — Can’t Donate Them and Deduct Value

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 ...
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…
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Blog Entries Admissible on Summary Judgment to Show State of Mind

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 ...
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…
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Recent Posts

Patently Frivolous RICO Complaint Fails to Confer Federal Question Jurisdiction — Subject to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Inherent Power Sanctions — Dismissal — Abuse of Discretion Review Is “More Exacting” When Judge is “Accuser, Fact Finder and Sentencing Judge All in One” — Client Responsible for Her Lawyer’s Discovery Defalcations — No Need for Evidentiary Hearing When Sanctions Based Entirely on an Established Record — Lesser Sanctions Reasonably Determined to be Ineffective Given Record of Repeated Discovery Abuses

Inherent Power Sanction of Dismissal for Fraud on the Court — Fabrication of Evidence and Lying about It to the Court — 2-Part Test for Dismissal Sanction (Eleventh Circuit) — Whether Fraud on Court Was Committed for the Court, Not a Jury

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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