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

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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Diversity Jurisdiction — Assignment of Claims by Non-Diverse Subsidiaries to Diverse Parent

28 U.S.C. § 1359 provides that "[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of the court." There is a split in the Circuits as to whether to apply a presumption of collusive invocation of jurisdiction when evaluating assi ...
28 U.S.C. § 1359 provides that “[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of the court.”…
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Electronic Discovery — Unfettered Access to Opponent’s Hard Drive

The plaintiff-employer in Calyon v. Mizuho Secs. USA Inc. , 2007 U.S. Dist. LEXIS 36961 (S.D.N.Y. May 18, 2007), sued several former employees for allegedly transmitting confidential business information to their new employer. The ex-employees agreed to preserve mirror images of the hard drives of their personal computers, PDAs, etc., and produced informatio ...
The plaintiff-employer in Calyon v. Mizuho Secs. USA Inc. , 2007 U.S. Dist. LEXIS 36961 (S.D.N.Y. May 18, 2007), sued several former employees for allegedly transmitting confidential business information to their new employer. The ex-employees agreed to preserve mirror images…
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Recent Posts

Spoliation: Dismissal Under Rule 37(e)(2) and Monetary Sanctions Under Rule 37(e)(1), Implicitly Reading The “Or” Between 37(e)(1) and 37(e)(2) As Conjunctive, Not Disjunctive — Clear Error Standard of Review for District Court’s Intent (= Bad Faith) Finding under 37(e)(2)(C) — Additional Monetary Sanctions Imposed on Claimants under 28 U.S.C. § 1927 and Rule 37(a)(5) — No Right to Jury Determination of Intent under Rule 37(e)(2) — “Substantially Justified” in Rule 37(a)(5) Has Same Meaning As In Equal Access to Justice Act and Thus Rule 11 — Meaning of “Unreasonable and Vexatious” in 7th Circuit

nherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

Rule 37 Default Judgment — Tenth Circuit Multifactor Test Is Not Exhaustive But a Non-Exclusive List of “Sometimes-Helpful Criteria Or Guide Posts”— Appeal from Preliminary Injunction Mooted by Entry of Permanent Injunction — Difficulty in Collecting Damages Award May Equal Irreparable Injury — A Monetary Award For Past Conduct Does Not Preclude A Permanent Injunction Against Similar Wrongful Conduct Likely To Occur In The Future

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

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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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