If an expert testifies at trial, his or her opinion is evidence in the case, and, like any other evidence, may be relied upon by a testifying expert. What if the initial expert does not testify? This arises in a number of ways. The first expert may be unavailable (it is surprising how frequently the word ‛deceased“ pops up in this area); he or she may be a ...

It is bad enough to lose on a motion for reconsideration after winning initially. It is worse to lose on reconsideration when no motion has even been filed. In Marsden v. Select Medical Corp., 2007 U.S. Dist. LEXIS 9893 (E.D. Pa. Feb. 6, 2007), the plaintiff had defeated a motion to dismiss a securities fraud class action complaint. The defendants moved the Di ...

On December 6, 2006, District Judge Faith S. Hochberg — after eleven days of evidentiary hearings — found that Health Net, Inc., had engaged in repeated and serious discovery abuse, including spoliation of email and other electronic evidence, and imposed sanctions that rank up there with the partial default, adverse inference and other sanctions imposed on Morga ...

The plaintiff/petitioner in Int’l Thunderbird Gaming Corp. v. United Mexican States, 2007 U.S. Dist. LEXIS 10070 (D.D.C. Feb. 14, 2007), sought to vacate a NAFTA arbitration award that rejected its claim against the Mexican Government for shutting down its gambling operations and awarded $1.25 million in costs fees to Mexico. Thunderbird’s primary argument w ...

This week's National Law Journal has two interesting articles. The first, by Scott Stolley, deals with the Circuit split over whether parties may by contract authorize federal appellate courts to review arbitration awards ("Circuits Grapple with Courts' Role in Arbitration," http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1171620175359). The second, by Gregory Bal ...

The first-impression issue posed by the Court in Wolinsky v. Oak Tree Imaging, LP, 2007 U.S. Dist. LEXIS 9431 (S.D. Tex. Feb. 9, 2007), was: ‛Can a district court exercise jurisdiction over a withdrawn adversary proceeding's state law claims that supplement the federal bankruptcy claim in another court?“ For those of us who don’t practice bankruptcy law, ...

Every lawyer knows that interrogatory answers are to be signed by the client, the party with substantive knowledge (Rule 33(b)(2)), not by the lawyer, who separately signs as to the objections (id.) and thereby certifies that the answers are true to the best of the lawyer’s knowledge, information and belief (Rule 26(g)(2)). Does it happen that lawyers, alone, exe ...

Download associated file: FJC Electronic Discovery Guide.pdf  The Federal Judicial Center has issued a pocket guide to help federal judges manage the discovery of electronically stored information. The guide, entitled "Managing Discovery of Electronic Information: A Poc ...

The defendant in In re NTL, Inc., Sec. Litig., 2007 U.S. Dist. LEXIS 6198 (S.D.N.Y. Jan. 30, 2007), did not have physical custody of the electronically-stored information that was lost, but it was subjected to an adverse inference because that information had been in its ‛control“ and — in the no-good-deed-goes-unpunished department — litigation hold memo ...

Does a plaintiff have a right to a court-appointed expert where expert testimony is an element of the plaintiffs’ cause of action? Not in the D.C. Circuit, under Gaviria v. Reynolds, 2007 U.S. App. LEXIS 2890 (D.C. Cir. Feb. 9, 2007) (a medical malpractice action brought by a pro se prisoner). Recognizing that the ‛standard for reviewing the district court's r ...