The defense expert in Physicians Dialysis Ventures, Inc. v. Griffith, 2007 U.S. Dist. LEXIS 78879 (D.N.J. Oct. 23, 2007), destroyed her notes of conversations she had with the defendant and defense counsel. She was thereafter asked to produce them by the plaintiff and, when she couldn’t, the plaintiff sought spoliation sanctions. Judge Jerome B. Simandle ...

When privileged or work product information is exchanged between the relator (the original private plaintiff) and the government in an action brought under the False Claims Act, 31 U.S.C. § 3729 ff., neither privilege nor work product is waived — at least if the material is exchanged prior to a decision by the government to decline to prosecute the action ...

The issue of first impression in CitiFinancial, Inc. v. Lightner, 2007 U.S. Dist. LEXIS 78647 (N.D. W.Va. Oct. 22, 2007), was whether the Class Action Fairness Act overturned pre-CAFA precedent barring a plaintiff from removing when it becomes a counterclaim defendant where the counterclaim falls within CAFA. The Court’s answer was No. The plaint ...

Whether aiding and abetting liability may be asserted under the Alien Tort Claims Act (a/k/a Alien Tort Statute), 28 U.S.C. § 1350, has never been addressed by the Supreme Court. Two of three members of the panel in Khulumani v. Barclay Nat’l Bank, 2007 U.S. App. LEXIS 24370 (2d Cir. Oct. 12, 2007), held that that such a claim is cognizable but for quite ...

The gravamen of the complaint in Morrison v. Rankin, 738 N.W.2d 588 (Wis. App. 2007) was medical malpractice. As a sanction for spoliation committed by the defendants, the court directed a verdict in favor of the plaintiff on the issue of informed consent. The defense then admitted that the surgery caused permanent nerve injury and, after a trial limited to ...

The defendant in United States v. Gagliardi, 2007 U.S. App. LEXIS 24644 (2d Cir. Oct. 22, 2007) claimed that emails and transcripts of instant-message chats offered by the government were not properly authenticated because they were cut from his electronic communications and pasted into word processing files. The defendant argued that they were not originals ...

In the context of a pro se prisoner action, which may be telling, District Judge Peter Dorsey held in Vega v. Lantz, 2007 U.S. Dist. LEXIS 76640 (D. Conn. Oct. 15, 2007), held that ‛a motion for a preliminary injunction is not an appropriate stage for the court to look to precedent outside this circuit to decide a matter of first impression,“ citing an o ...

There is a debate in the case law as to when and whether emails generated in a business setting constitute business records within Federal Rule of Evidence 803(6) (see Internet & Email Evidence on the Recent Articles page). The defendants in United States v. Stein, 2007 U.S. Dist. LEXIS 76201 (S.D.N.Y. Oct. 15, 2007) (the KPMG tax shelter prosecution) ...

28 U.S.C. § 1338(a) creates exclusive federal jurisdiction for patent, trademark and copyright cases ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant v ...

Eckstein v. Cincinnati Ins. Co., 2007 U.S. Dist. LEXIS 72375 (W.D. Ky. Sept. 26, 2007) (applying Kentucky law) holds that, when an insurance coverage question is a matter of first impression, no bad faith claim for denial of coverage lies. In entering summary judgment for the carrier in this water-damage-turned-mold-damage claim, District Judge Joseph H. McK ...