If you call it ‛spoliation“ when someone destroys or fails to preserve evidence, what do you call it when someone ignores a duty to create evidence and, by doing so, impedes the factfinding process? That was the question for Magistrate Judge James Orenstein in Ramirez v. Pride Devel. & Constr. Corp. 244 F.R.D. 162 (E.D.N.Y. 2007). Answer: Equally sanc ...

As of November 10, 2007, less than six months after the Supreme Court’s decision in Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), a LEXIS search reveals that the opinion has been cited in more than 2,000 cases. Rarely, I suspect, to the benefit of the plaintiff. ...

The plaintiff in Globe Wholesale Tobacco v. WWT, 2007 U.S. Dist. LEXIS 72656 (S.D.N.Y. Sept. 28, 2007), was a wholesale tobacco dealer whose RICO claim against a competitor was premised on the fact that the competitor was selling contraband cigarettes with phony tax stamps while the plaintiff was obeying the law and selling only more expensive, fully-taxed, l ...

It is well-settled that personal injuries are not injuries to "business or property" within 18 U.S.C. 1964(c). What about a chose in action for personal injuries? In an unpublished opinion (whatever vitality that distinction enjoys in the E-Age) rendered on November 6, 2007, Magnum v. Archdiocese of Philadelphia, 2007 U.S. App. LEXIS 25812 (3d Cir. Nov. 6, ...

Our June 3, 2007 post reported a decision in which transmittal of attorney-client privileged communications via a fiancй’s computer was held not to effect a waiver of privilege. Use of a computer at work can be another matter. In Scott v. Beth Israel Med. Ctr., 2007 N.Y. Misc. LEXIS 7114 (Sup. Ct. N.Y. Cty. Oct. 17, 2007), the plaintiff, a physician on ...

The Seventh Circuit in U.S. v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007), was dealing with the same tax shelter strategy that brought about the demise of the law firm of Jenkens & Gilchrest. The IRS was seeking to enforce administrative subpoenas against the accounting firm of BDO Seidman, which defended in part on the ground that certain of the docume ...

The question in State of N.Y. v. Shinnecock Indian Nation, 2007 U.S. Dist. LEXIS 80443 (E.D.N.Y. Oct. 30, 2007), was whether New York state authorities were entitled to an injunction preventing the Shinnecock Indian Nation from constructing a casino in Suffolk County. A potentially dispositive legal issue was whether aboriginal title to the property held by ...

Did the plaintiff act sanctionably in Liberty Sav. Bank v. GE Capital Corp., 236 Fed. Appx. 353, 2007 U.S. App. LEXIS 12606 (10th Cir. 2007)? The District Court didn’t find any specifics in defendant General Electric’s moving brief and that ended the matter. In denying GE's Rule 11 motion, the District Court wrote: In support of it ...

The 21-day safe harbor to withdraw challenged papers stated in the text of Rule is well known. (It will go undercover on December 1, when it skulks from Rule 11(c)(1)(A) into hiding in Rule 11(c)(2), evidently renumbered on the theory that research is too easy if the rule numbers remain the same.) But the 21-day safe harbor isn’t the only one adopted in 1993 — ...

Normally, corporate defendants sued for fraud seek, wherever possible, to have the fraud claims dismissed as redundant of contract claims, under such authorities as Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13 (2d Cir. 1996) (in order to maintain a claim of fraud, a plaintiff must either ‛(i) demonstrate a legal duty separate from ...