The Federal Rules of Civil Procedure and the Zubulake-driven case law frequently require parties to retain forensic electronic discovery experts. These vendors, though, can create nightmares (which, frankly, we’re quite capable of doing without expert assistance). In PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66 ...

The Eleventh Circuit’s standards for an adverse inference instruction are set forth in Judge B. Avant Edenfield’s opinion in Sapeu v. Bland, 2007 U.S. Dist. LEXIS 66606 (S.D. Ga. Sept. 10, 2007): [The] court must consider the following factors: (1) whether plaintiff was prejudiced as a result of the destruction of evidence; (2) whether ...

The stream-of-commerce theory of personal jurisdiction originated in the Supreme Court's decision in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), in which the Court held that the exercise of jurisdiction over a defendant is permissible when the sale of its product "is not simply an isolated occurrence, but arises from the efforts of the [ ...

International arbitration agreements usually identify the law that is to govern the parties’ relationship, but evidently not always. InCertain Underwriters at Lloyd's, London v. Argonaut Ins. Co., 2007 U.S. App. LEXIS 20620 (7th Cir. Aug. 29, 2007), the parties had a dispute under a reinsurance treaty that was silent in this respect. The arbitration clau ...

The defendant in Accuride Corp. v. Forgitron, LLC, 2007 U.S. Dist. LEXIS 60508 (N.D. Ohio Aug. 17, 2007), signed an arbitration clause but did not want to arbitration. Opposing the plaintiff’s motion to compel, it argued that the arbitration clause was not valid because it was not supported by consideration — it was part of a supply contract under which ...

The data that were lost in CSI Investment Partners II, L.P. v. Cendant Corp., 2007 U.S. Dist. LEXIS 66353 (S.D.N.Y. Sept. 7, 2007), were lost in a data conversion process that took place before this lawsuit was filed. The defendant argued that it could not be sanctioned for spoliation for data lost before it was on notice of the plaintiffs’ claim. But th ...

The defendant in Chambers v. Cooney, 2007 U.S. Dist. LEXIS 64932 (S.D. Ala. Aug. 29, 2007), threatened for more than a year to file suit against the plaintiffs, claiming a right to certain merger proceeds. The merger was consummated in January 2005, and negotiations continued on and off through late 2006. On May 9, 2007, the defendant’s lawyer forwarded a ...

It is well settled that the lengthier two-year/five-year limitations and repose periods provided by the Sarbanes Oxley Act (‛SOX“) do not apply to securities claims that had expired before SOX was enacted, even if those claims were filed after enactment and would be timely under SOX. What about claims that were still viable at the time of enactment? The Third ...

The Second Circuit ruled in Zeiler v. Deitsch, 2007 U.S. App. LEXIS 20065 (2d Cir. Aug. 23, 2007), that the resignation of a party-appointed arbitrator did not affect the power of the remaining two arbitrators to issue a decision. The arbitration panel in Zeiler was a Jewish religious tribunal known as a Beth Din and composed of three rabbis. Little, ...

Sanctions against vexatious litigants — who paper the courts with suit after suit alleging the same rejected claims — commonly take the form of orders requiring that require the litigant to obtain leave of court before he or she files yet another lawsuit on the same subject matter. (See our post of May 11, 2007.) Is that an appealable order? Under Cunningh ...