The notice of appeal is jurisdictional. Absent a notice, the Court of Appeals lacks jurisdiction over the appeal. Generally, a notice of appeal in the name of the client alone is insufficient to obtain review of sanctions imposed on counsel. Counsel ordinarily must appeal in his or her own name, although this requirement is somewhat leniently applied under the 199 ...

The pro se appellant in Halim v. Great Gatsby’s Auction Gallery, Inc., 2008 U.S. App. LEXIS 3165 (7th Cir. Feb. 14, 2007), contending, inter alia, that “the arbitrator ‘manifestly disregarded the law’ by declining to formally rule on a discovery dispute.” The Seventh Circuit rejected the argument, reasoning that the failure to decide the discovery ...

In In re IPO Secs. Litig., 2008 U.S. Dist. LEXIS 11058 (S.D.N.Y. Feb. 14, 2008), Judge Shira A. Scheindlin rejected the argument of Credit Suisse that disclosure of work-product-protected reports to the Securities and Exchange Commission staff pursuant to a confidentiality agreement preserved work product protection. After a lengthy analysis of the cases and ...

Does a party's loss to theft of a laptop that contains the only copy of electronic data constitute spoliation? This was one of the questions presented to District Judge Nancy F. Atlas in Diabetes Centers of Am., Inc. v. Healthpia Am., Inc., 2008 U.S. Dist. LEXIS 8362 (S.D. Tex. Feb. 5, 2008). The Chief Executive Officer of the corporate defendant (Healthpia ...

Sometimes jurisdictional facts overlap with merits facts. The right to a jury trial may therefore be implicated if merits facts are decided at on a pretrial motion addressed to jurisdiction. What is the standard for determining whether the right to a jury trial is being impinged? Resolving this as an issue of first impression for the Federal Circuit, DDB Tech ...

One would have thought that any party asserting a waiver would bear the burden of proving it. Not necessarily. Many courts hold that a party asserting attorney-client privilege bears the burden of establishing that the privilege has been both claimed and not waived. See, e.g.: One of the elements that the asserting party must prove is ...

There will, optimistically, never be occasion for citing this case, but, if needed, Amadasu v. General Revenue Corp., stands for the proposition that presenting forged documents to the court warrants dismissal. Note that the offender was the client, who suffered the sanction, even though the documents were initially proffered to the court by his counsel, ...

Jurisdiction was predicated on diversity in Osborn & Barr Commc’ns, Inc. v. EMC Corp., 2008 U.S. Dist. LEXIS 8430 (E.D. Mo. Feb. 5, 2008). The plaintiff sued an LLC, among other defendants, but alleged nothing about the citizenship of the members of the LLC. The Court pointed out that diversity was not properly alleged. The plaintiff responded that it ha ...

As now-Judge Martin Glenn pointed out in a valuable paper on Civil and Criminal Contempt he prepared for the Federal Bar Council two years ago, there is a split in the Circuits as to whether violation of a consent decree that simply tracks the language of a statute may be punished by contempt. The Eleventh Circuit says no (SEC v. Smyth, 420 F.3d 1225, 1233 n.14 (11 ...

The Third Circuit held in Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008) that it is error for a District Court not to resolve a pending Rule 11 (or, by implication, any other sanctions motion) prior to entering final judgment. The Third Circuit has a unique a supervisory rule "that counsel seeking Rule 11 sanctions must file thei ...