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 ...

Under Hickman v. Taylor, 329 U.S. 495 (1947), a third-party witness statement is prototypical work product. The defendant in 1100 West, LLC v. Red Spot Paint & Varnish Co., 2007 U.S. Dist. LEXIS 73621 (S.D. Ind. May 18, 2007), argued that, to the extent that a third-party witness was shown drafts of his own statement, and asked to execute the final, ...

The discovery snafus in Kyoei Fire & Marine Insurance Co. v. M/V Maritime Antalya, 2007 U.S. Dist. LEXIS 74200 (S.D.N.Y. Oct. 4, 2007), defy brief description. Two of District Judge Loretta A. Preska’s instructive holdings: 1. Spoliation of Evidence Relevant Only to an Adversary’s Burden of Proof. The defendants argued that spoliation san ...