1. Who are the key players? 2. Where is the electronically-stored information (ESI) that they generate? 3. Where else is relevant ESI stored? 4. How is it organized? 5. How difficult is it to retrieve? 6. How costly is it to retrieve? 7. Who has custody of it? < ...

Courts are divided as to whether a dispute over a third party subpoena that has been served outside the district in which the case is being litigated must be resolved in the district where the discovery is to be taken (i.e., where the subpoena is served) or whether it may be transferred to the district possessing the underlying action. Cases going both ways are cit ...

The Fourth Circuit’s 2-1 decision last week affirming dismissal of a securities fraud class action, Teachers' Retirement Sys. of Louisiana v. Hunter, 2007 U.S. App. LEXIS 3698 (4th Cir. Feb. 20, 2007), is notable in three respects: (1) its discussion of the ‛all facts“ requirement of the PSLRA, (2) the percentages of stock sold by the individual defendants ...

The automatic discovery stay of the PSLRA was partially lifted by Judge Gerald Rosen on February 15th in the Delphi securities class action (In re Delphi Corp. Secs. Litig., 2007 U.S. Dist. LEXIS 10408 (E.D. Mich. Feb. 15, 2007)). The Court granted the securities plaintiffs access to the materials produced by Delphi, other defendants and third parties to federal au ...

The plaintiff in TruGreen Cos. v. Scotts Lawn Serv., 2007 U.S. Dist. LEXIS 10916 (D. Utah Feb. 13, 2007), lost a branch manager and several employees to the defendant, a competitor. The plaintiff filed suit for breach of contract, intentional interference with contractual and economic relations, and unfair competition. District Judge Paul Cassell granted summar ...

Fed.R.Civ.P. 45(b)(1) requires that all parties be notified of the issuance of a subpoena for discovery purposes. At a minimum "the 'prior notice' requirement mandates notice to the opposing parties at least simultaneously with the issuance of the subpoenas." McClendon v. TelOhio Credit Union, No. 2:05-CV-1160, 2006 WL 2380601, at *2 (S.D. Ohio Aug 14, 2006). Neit ...

When are extrajudicial statements of counsel admissible against the client? In United States v. Jung, 473 F.3d 837 (7th Cir. 2007), the defendant was charged with securities fraud for putting his investors' money at risk for debts that were not theirs (i.e., exposing their assets to cross-collateralization, which resulted in millions of dollars in losses). The ...

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 ...