The plaintiffs’ expert in Boim v. Holy Land Foundation, 2007 U.S. App. LEXIS 29864 (7th Cir. Dec. 28, 2007), relied in part on internet website postings in which the terrorist organization Hamas took credit for the murder of plaintiffs’ decedent. The panel majority ruled that the expert failed sufficiently to elucidate the basis for his conclusion that t ...

Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007): • “In general, the obligation to preserve evidence arises when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." • “At times, th ...

The New York Appellate Division, First Department, ruled on Thursday, December 27, 2007, that the attorney-client relationship between class counsel and absent class members is limited in scope and, specifically, does not require class counsel to turn over work product to every absent class member. The decision, Wyly v. Milberg Weiss Bershad & Schulman, LLP,

As amended effective December 1, 2000, Federal Rule of Evidence 701 contemplates that lay witnesses may testify to opinions that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge ...

In a major decision addressing expert evidence in trademark litigation, District Judge Shira A. Scheindlin, in Louis Vuitton Malletier, v. Dooney & Bourke, Inc., 2007 U.S. Dist. LEXIS 91934 (S.D.N.Y. Dec. 13, 2007), excluded voluminous expert evidence — largely survey evidence, but damages evidence as well — for failure to satisfy Rule 702 (Daubert ...

The key waiver issue in Quiksilver, Inc. v. Kymsta Corp, 2007 U.S. Dist. LEXIS 92905 (C.D. Cal. Dec. 18, 2007), centered on the defendant’s claim that that plaintiff impliedly waived its attorney-client privilege by filing this trademark infringement action, on the theory that the action "involv[ed] registrations acquired via the applications prosecuted b ...

Our post of October 3, 2007, discussed New York General Obligations Law § 5-701 and the question of when a an email — with the sender’s name typed at the end — may suffice to satisfy the statute of frauds in the context of a personal services contract. In contrast, Vista Dev. Corp. v. VFP Realty LLC, 17 Misc. 3d 914 (Sup. Ct. Queens County Oct. 7, 200 ...

“Does the fact that an amended complaint (or answer) contains an allegation that is apparently contrary to an earlier iteration of the same pleading render the later pleading a sham? The answer is: not necessarily.” So writes Chief Circuit Judge Alex Kozinski in PAE Gov’t Servs. v. MPRI, Inc., 2007 U.S. App. LEXIS 29221 (9th Cir. Dec. 18, 2007). A sep ...

A lawyer has standing to appeal an award of attorneys' fees even if the statute pursuant to which fees were awarded confers as standing only on the client, under the Sixth Circuit’s decision in Gonger v. Hunt Valve Co., 2007 U.S. App. LEXIS 29229 (6th Cir. Deck. 18, 2007). Although the decision was rendered under the False Claims Act, the Court looked to p ...

The plaintiffs in In re Omnicom Group, Inc., Secs. Litig., 2007 U.S. Dist. LEXIS 60298 (S.D.N.Y. Aug. 10, 2007), moved to preclude the testimony of the defendants' principal expert on judicial and equitable estoppel grounds, contending that he relied on a set of facts that was inconsistent with the facts put forth by the defendants in opposing a motion to com ...