New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Electronic Discovery — Email Database Searches — Protocol / Form of Production

The parties in Williams v. Taser Int’l, Inc., 2007 U.S. Dist. LEXIS 40280 (N.D. Ga. June 4, 2007), like the parties in many other cases, could not agree on an email database search protocol. Plaintiffs wanted to be present at the corporate defendant’s facilities, looking at the screen, and provide search requests in real time to the IT professional actua ...
The parties in Williams v. Taser Int’l, Inc., 2007 U.S. Dist. LEXIS 40280 (N.D. Ga. June 4, 2007), like the parties in many other cases, could not agree on an email database search protocol. Plaintiffs wanted to be present at…
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Attorney-Client Privilege/Work Product — Experts — What Is ‛Considered?“

Under Fed. R. Civ. P. 26(a)(2)(B), an expert must include in his or her report not only ‛a complete statement of all opinions“ but also ‛the data or other information considered by the witness in forming the opinions.“ The critical word is ‛considered.“ As noted in the posting of January 8, 2007, the Sixth Circuit has largely ended the debate a ...
Under Fed. R. Civ. P. 26(a)(2)(B), an expert must include in his or her report not only ‛a complete statement of all opinions“ but also ‛the data or other information considered by the witness in forming the opinions.“ The critical…
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Email Strings — Privilege Logs — Waiver by Failure to Log

In contrast to Nnebe v. Daus, 2007 U.S. Dist. LEXIS 32981 (S.D.N.Y. May 3, 2007) (discussed in the posting dated May 25, 2007), the opinion in C.T. v. Liberal School District, 2007 U.S. Dist. LEXIS 38177 (D. Kan. May 24, 2007), declined to find a waiver despite an inadequate privilege log. Magistrate Judge K. Gary Sebelius concluded that: ‛While th ...
In contrast to Nnebe v. Daus, 2007 U.S. Dist. LEXIS 32981 (S.D.N.Y. May 3, 2007) (discussed in the posting dated May 25, 2007), the opinion in C.T. v. Liberal School District, 2007 U.S. Dist. LEXIS 38177 (D. Kan. May 24,…
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Rule 37 Discovery Sanctions — Necessity of a Motion or ‛Order“ — Informal Appeals to the Court

In the 1970 amendments to Fed.R.Civ.P. 37, the scope of Rule 37(b)(2) (discovery sanctions) was substantially broadened. Among other things, the Rule was extended to cover disobedience to any order ‛to provide or permit discovery,'' including orders issued under Rules 37(a) (motions to compel discovery), 35 (requiring a physical or mental examination) or 26(c) (p ...
In the 1970 amendments to Fed.R.Civ.P. 37, the scope of Rule 37(b)(2) (discovery sanctions) was substantially broadened. Among other things, the Rule was extended to cover disobedience to any order ‛to provide or permit discovery,” including orders issued under Rules…
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Local Counsel — Unauthorized Signature by Out-of-State Counsel

An out-of-state attorney electronically filed a post-trial motion reflecting her local counsel’s signature by including an ‛/s/“ electronic signature for him. Her local counsel, who was on vacation at the time the filing was made, notified the Judge on his return that the filing had been made without his "knowledge, consent, authorization, or approval." Dist ...
An out-of-state attorney electronically filed a post-trial motion reflecting her local counsel’s signature by including an ‛/s/“ electronic signature for him. Her local counsel, who was on vacation at the time the filing was made, notified the Judge on his…
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Attorney-Client Privilege — Email — Waiver by Use of Another’s Computer

The question in Geer v. Gilman Corp., 2007 U.S. Dist. LEXIS 38852 (D. Conn. Feb. 12, 2007), an age discrimination action, was whether the plaintiff waived the attorney-client privilege by using the computer and email of her fiancй, and by having her fiancй assist her in ministerial maters, such as proofreading her communications to her attorney. Magistrate ...
The question in Geer v. Gilman Corp., 2007 U.S. Dist. LEXIS 38852 (D. Conn. Feb. 12, 2007), an age discrimination action, was whether the plaintiff waived the attorney-client privilege by using the computer and email of her fiancй, and by…
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Rule 34 — Form of Document Production

Fed.R.Civ.P. 34(b)(i) provides that ‛a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.“ This presents an alternative — either produce them as kept in the usual course of businessor shall organize and ...
Fed.R.Civ.P. 34(b)(i) provides that ‛a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.“ This presents…
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Eleventh Amendment Immunity — No Waiver by Filing Third Party Complaint

The Hawaii Department of Public Safety and ten state officials were sued for negligence by a prisoner who was beaten by other inmates. In their answer, the defendants asserted Eleventh Amendment immunity as an affirmative defense. They subsequently filed a third-party complaint for indemnification or contribution against the inmates who had attacked the plaintiff. ...
The Hawaii Department of Public Safety and ten state officials were sued for negligence by a prisoner who was beaten by other inmates. In their answer, the defendants asserted Eleventh Amendment immunity as an affirmative defense. They subsequently filed a…
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Fed.R.Evid. 803(8) and Expert Testimony — Foreign Official Report

Italian prosecutors hired an accounting expert to assist them pursue Deloitte-Italy in the Parmalat case. The expert was a ‛technical consultant“ to the prosecution under Italian law, and she prepared reports that the U.S. plaintiffs sought to introduce in the U.S. proceeding, In re Parmalat Securities Litigation, 477 F.Supp.2d 637 (S.D.N.Y. 2007), purs ...
Italian prosecutors hired an accounting expert to assist them pursue Deloitte-Italy in the Parmalat case. The expert was a ‛technical consultant“ to the prosecution under Italian law, and she prepared reports that the U.S. plaintiffs sought to introduce in the…
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Experts — Rule 702 vs. Rule 56

The District Judge in Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007) excluded the testimony of the plaintiff’s expert, finding that the testimony was not helpful, within Fed.R.Evid. 702, because it did not address the issue of causation, only defect, in this medical device products liability action. The Ninth Circuit reversed, holding that ...
The District Judge in Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007) excluded the testimony of the plaintiff’s expert, finding that the testimony was not helpful, within Fed.R.Evid. 702, because it did not address the issue…
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Recent Posts

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

RICO: (1) Assignability of RICO Claims Uncertain — (2) Declining to Decide Whether Indirect-Purchaser Rule Applies to RICO (Given the Directness Requirement, How Much Does It Matter?) — (3) Two Types of Directness of Injury in Proximate Cause Analysis — (4) Proximate Cause As a Court Not Jury Issue in the First Instance

(1) RICO Pattern: Open-Ended Continuity — The Vendetta Exception — Jury Could Reasonably Infer That Scheme Directed at One Person, With Goal of Destroying His Current and Future Business Prospects, Presented A Threat of Continued Racketeering Activity Extending Indefinitely into the Future — Lawsuit’s “Fortuitous Interruption” of Scheme ≠ Lack of Threat of Continuing Racketeering Activity — Acts of Concealment Used to Perpetuate Violations — Multiple Schemes Not Required — Jury Could Judge Defendant’s Credibility in Assessing Threat of Continuing Criminal Activity — (2) RICO Conspiracy — Two Methods of Proof: Agreement to Overall Objective Or to Commit Predicate Acts — Agreement Can Be Inferred from Conduct — Conspirator Needn’t Know All Details, Have Contact with Other Conspirators Or Participate in Every Stage

Experts: “Normally, Courts Are Loath to Outright Dismiss An Expert” (Good Quote) — Experts Are Unhelpful If They Misstate the Law [Note Premise That Testimony on Law Not Precluded Outright] — Rule 37 Sanctions Unwarranted for Unjustifiable Failure to Produce Relevant Document Already in Requester’s Possession

FRAP 38 Sanctions: (1) Pressing Objectively Frivolous Arguments, Multiple Misstatements at Oral Argument and Failure to Address What District Judge Said Warrant Award against Appellants’ Counsel (Only) — (2) “General Award” of $5,000 Warranted Where Appellee Failed to Sufficiently Document Its Fees and Expenses [Goodyear v. Haegar Issue]]

RICO: Capital Call Investment Process Increasing Equity of Those Responding to Call at Expense of Those Not Responding ≠ Collection of An Unlawful Debt

RICO [And Constitutional] Standing: Concrete Injury Requirement Not Satisfied by Alleged Intangible Injuries of Intrusion Upon Seclusion, Confusion And Emotional Distress, Public Disclosure of Private Facts, Deterred Speech On Nondefamatory Matters, Violation Of First Amendment Rights, And Compulsion

Rule 37(b) Sanctions: Striking of Answer, Default Judgment, Civil Contempt and Piercing Corporate Veil for Deliberate Disregard of Multiple Orders to Produce — Finding of Deliberate Disregard of Court Order Is Factual, Triggering Clear Error Review — Discretion Narrows When Default Sanction Involved — Fourth Circuit Factors for Rule 37 Default Sanction Are Different Than Those for Inherent Power Dismissal Sanction — Continued Defiance of Court Orders And Millions in Unpaid Judgments And Tax Liens Render Lesser Sanctions Futile

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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