As Judge Patrick Higginbotham writes for the Court in Betzel v. State Farm Lloyd's, 480 F.3d 704 (5th Cir. 2007), the Fifth Circuit applies a four-factor test in reviewing, for abuse of discretion, a District Court’s decision to exclude expert testimony as a sanction for belated designation of expert witnesses in violation of a pretrial order: ‛(1) th ...

District Judge Barbara Crabb addressed a series of Daubert motions directed at economic expert testimony in Southwire Co. v. J.P. Morgan Chase & Co., 2007 U.S. Dist. LEXIS 30294 (W.D. Wis. April 24, 2007), an antitrust action for, inter alia, price fixing in the copper market. The details of the testimony are complicated, but several of the holdings are ...

Email doesn’t linger. It is stored or it evaporates. The government realized this a little late in United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007), a drug conspiracy prosecution. The DEA executed a search warrant to obtain, inter alia, the defendant’s cell phone. The DEA agent found email found on the phone. He te ...

In a recent decision arising out of the Pan Am 103/Lockerbie tragedy, Hurst v Socialist People’s Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007), District Judge Henry Kennedy held as a matter of first impression in the D.C. Circuit that a foreign criminal judgment is entitled to preclusive effect in a subsequent civil action where (I) pursuant to ...

Under Rule 30(d)(4), ‛A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4) [i.e., for a protective order]." Sometimes, questions are beyond the pale, and this limitation is extremely confining. Redwood v. Dobson, 476 F.3d 462 ...

Hurricane Katrina generated the class action filed in Preston v. Tenet HealthSystem Memorial Med. Ctr. , 2007 U.S. App. LEXIS 9451 (5th Cir. April 25, 2007), which sought damages for injuries and deaths allegedly caused by defects and unreasonably dangerous conditions at the medical facilities of certain defendants, and their failure to have an adequate e ...

The plaintiff in Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006), took a 30(b)(6) deposition of the corporate representative of one of the two defendants. The plaintiff was prepared to read selected testimony into the record if the witness did not appear at trial, but he did. The District Court, however, precluded the plaintiff from taking l ...

The decision in Al-Haddad Commodities Corp. v. Toepfer Int’l Asia Pte., Ltd., 2007 U.S. Dist. LEXIS 29405 (E.D. Va. April 19, 2007), confirmed the international arbitration award before it, but it is most interesting for its statement of the standards for review of an award under the Federal Arbitration Act. The threshold point for the Court was the relationsh ...

Unlike Rule 11, which expressly authorizes sanctions against an offending attorney, client or both, § 1927 does not apply to parties but only to "[a]ny attorney or other person admitted to conduct cases in any court of the United States...." Only lawyers may, therefore, be sanctioned under the statute. If a pro se litigant is a lawyer, the statute applies. < ...

Bills sent from lawyer to client are privileged only to the extent that they reflect the specific nature of legal services rendered. Otherwise, a bill for legal services is not privileged. See the recent decision in Sobba v. Elmen, 2007 U.S. Dist. LEXIS 29172 (E.D. Ark. April 19, 2007), quoting Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) ("Typically, ...