Party A serves a document request on Party B. Party B has the unconditional right, by contract, to obtain responsive documents held by Party C. Are the documents held by Party C in Party B’s ‛possession, custody or control“ within the meaning of Fed.R.Civ.P. 34? Under the analysis of District Judge Lewis A. Kaplan in United States v. Stein, 2007 ...

The Ninth Circuit issued an en banc opinion on May 4, 2007, in Odom v. Microsoft Corp., 2007 U.S. App. LEXIS 10519 (9th Cir. May 4, 2007) ‛to correct and clarify our case law“ on the meaning of an association-in-fact enterprise. Key holdings: 1. No Separate Structure Requirement. Noting that four circuits require that an a ...

The defendant in Crow v. Wolpoff & Abramson, 2007 U.S. Dist. LEXIS 31356 (D. Minn. April 19, 2007), a Fair Debt Collection Practices Act case, was so incensed by the complaint that it filed an affirmative defense asserting that the action was brought in bad in violation of Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. The plaintiff moved to strike the affirmative ...

Feelings often run high at trial, and they ran high enough in Maday v. Public Libraries of Saginaw, 480 F.3d 815 (6th Cir. 2007), that the issue was whether a mistrial was required. Defense counsel in this employment-related case began her opening statement with a derogatory reference to the length of the opening of plaintiff’s counsel: ...

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 ...