The patent dispute in ClearValue, Inc. v. Pearl River Polymers, Inc., 2007 U.S. Dist. LEXIS 46919 (E.D. Tex. June 28, 2007), turned on the question whether the defendant’s products had a high molecular weight. At trial, the plaintiffs presented no evidence of any tests showing that the products had a high molecular weight (instead, plaintiffs relied on mar ...

Federal Rule of Evidence 201(b) provides that courts may take judicial notice of adjudicative facts outside the trial record only if they are "not subject to reasonable dispute." The plaintiffs in Mississippi State Democratic Party v. Barbour, 2007 U.S. Dist. LEXIS 41908 (N.D. Miss. June 8, 2007), moved the Court to take judicial notice of approximately 28 p ...

One portion of the Supreme Court's decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 2007 U.S. LEXIS 8270 (U.S. June 21, 2007), hasn't received the attention it is due. Apart from the scienter pleading standard which the case articulates (a standard that plaintiffs will likely find more hospitable than they were anticipating), the Court embraced the ...

For years, anyone who has litigated RICO claims in the Ninth Circuit has had to deal with a very amorphous definition of association-in-fact enterprise — one that could (but not necessarily would) be satisfied by almost any contractual relationship. Now, there is a strong argument that ‛could“ has now become ‛would.“ In an en banc decision, Odom v. Mi ...

The plaintiffs in the putative class action styled McMorris v. TJX Cos., 2007 U.S. Dist. LEXIS 47458 (D. Mass. June 26, 2007), filed a state court complaint on behalf of ‛[r]esidents of Massachusetts who made purchases and paid by credit or debit card or check or who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright stores ...

After being convicted and sentenced to more than 20 years imprisonment for drug trafficking, the defendant in Vo v. United States, 2007 U.S. Dist. LEXIS 47093 (D Haw. June 28, 2007), claimed ineffective assistance of counsel because his lawyer did not object to testimony from the defendant’s wife on grounds of marital privilege. The wife testified that her ...

Federal Rule of Civil Procedure 23(f) provides that: ‛A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order.“ The ten-day time limit is jurisdictional. The plaintiffs in Jenkins v ...

Download associated file: Spoliation Power Points.pdf  Attached is a power point presentation (in PDF format) that was used in connection with a continuning judicial education program at the National Foundation for Judicial Excellence in Chicago on June 30, 2007. It upda ...

The prosecution in People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007), was evidently unable to authenticate an email in the traditional way. (See Internet and Email Evidence on the Recent Articles page for a description of the customary ways to authenticate email evidence.) The witness, moreover, was hostile and said she c ...

The deposition of the defense expert in Jama v. Esmor Correctional Servs., 2007 U.S. Dist. LEXIS 45706 (D.N.J. June 25, 2007), suggested that defense counsel had not been diligent in instructing the expert to preserve his files and, worse, that some data had been lost: Q. In May were you asked when you were retained by the defendant's law ...