The New York Court of Appeals held on October 16, 2007, that the tort of third-party negligent spoliation of evidence is not cognizable in the state. Ortega v. City of New York, 2007 NY Slip Op 7741; 2007 N.Y. LEXIS 2715 (Ct. App. Oct. 16, 2007). Because of the remedies available to litigants to deal with spoliation by parties to a lawsuit, few states have ...

Another Circuit split worthy of Supreme Court attention: Our post of October 6, 2007, reported on a recent Ninth Circuit case holding that a District Judge may not increase an appellate bond to cover potential appellate sanctions. That opinion is in accord with the general propositions that (1) it is for appellate courts, not district courts, to sanction improper ...

Twenty-five years ago, in 1982, state and federal litigation cost about the same. Plaintiffs chose federal court sometimes for expansive discovery or to get a good judge, even though state court was available and additur impermissible. Today, plaintiffs with non-federal causes of action flee federal court. What happened? Highlights: 1983< ...

Fed.R.Civ.P. 33(d) provides: Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served ... and the burden of deriving ... the answer is substantially the same for the part[ies]..., it is a sufficient answer to ...

Parties are entitled, as a matter of due process, to notice of (a) the fact that sanctions are under consideration, (b) the specific conduct for which sanctions are under consideration and (c) the type of sanctions under consideration. Joseph, Sanctions: The Federal Law of Litigation Abuse § 17(D)(1) (3d ed. 2000). The plaintiffs in Foster v. Wilson, 2007 ...

You have to admire the candor of companies that make their living destroying data. They leave nothing to the imagination. As observed by District Judge Donald J. Stohr in Ameriwood Indus. v. Liberman, 2007 U.S. Dist. LEXIS 74886 (E.D. Mich. July 3, 2007): ‛Window Washer is advertised as a tool to make electronic files unrecoverable. While the name sounds ...

There is a split in the Circuits as to whether the 30-day time period for removal set forth in 28 U.S.C. § 1446(b) commences on the date of service of the first defendant or the last. This is a function of the text of § 1446(b), which provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the r ...

Download associated file: FJC Rule 56g Study.pdf  Rule 56(g) of the Federal Rules of Civil Procedure, as restyled effective December 1, 2007, provides: (g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under this rule is su ...

Muha v. Encore Receivable Mgmt., Inc. 2007 U.S. Dist. LEXIS 74801(E.D. Wis. Sept. 28, 2007) is a case study in how not to prepare survey evidence. In this FDCPA class action, the plaintiffs offered a consumer survey as extrinsic evidence of consumer confusion. District Judge J. P. Stadtmueller found the survey unreliable and irrelevant because, inter alia ...

Federal Rule of Civil Procedure 41(d) provides that you don’t get two bites at the apple free. A voluntary dismissal followed by refiling the same action subjects the plaintiff to paying the ‛costs“ of the defendant in the first action, in the discretion of the judge in action number 2: If a plaintiff who has once dismissed an action in an ...