One of the plaintiffs’ experts in B.H. v. Gold Fields Mining Corp., 2007 U.S. Dist. LEXIS 4612 (N.D. Okla. Jan. 22, 2007), testified at his deposition to a theory not set forth in his Rule 26(a)(2)(B) report. The District Court concluded that the new theory was not trivial but constituted ‛a significant extension of [the] generic opinion“ set forth in the exp ...

The Foreign Sovereign Immunities Act provides, in 28 U.S.C. § 1609, that "the property in the United States of a foreign state shall be immune from attachment[,] arrest and execution except as provided in section[] 1610...." Section 1610 in turn provides: "The property in the United States of a foreign state ... used for a commercial activity in the United St ...

Businesses move from one corporate entity to another. Does the attorney-client privilege covering communications between business executives and their counsel move with the business? Sometimes. It is well-settled that a transfer of corporate assets, without more, does not transfer the right to assert or waive the attorney-client privilege. ...

The Third Circuit has never embraced — or for that matter rejected — the majority position that each defendant must consent in writing (as opposed to orally) to removal of a state court action to federal court, according to the decision in Wal-Mart Stores, Inc. v. Elec. Ins. Co., 2007 U.S. Dist. LEXIS 3572 (D.N.J. Jan. 18, 2007). Nonetheless, that decision c ...

Lawyers often wonder whether about the extent of informal communication between District and Magistrate Judges. In Trustees of Laborers Local 310 v. Able Contracting Group, 2007 U.S. Dist. LEXIS 3988 (N.D. Ohio Jan. 19, 2007), the District Judge imposed discovery sanctions decision on defense counsel and the defendant, which ignored discovery orders after a failed ...

Does 28 U.S.C. § 1782(a) authorize discovery for use in a private international arbitration? Prior to the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), it was well-settled that a private international arbitration tribunal was not ‛a foreign or international tribunal“ within § 1782. Intel, however, relied heav ...

Rich Rosen of Paul Weiss has written an excellent article in the current issue of the BNA Securities Regulation & Law Report that comprehensively explores the last two years' (Nov. 2004 to Nov. 2006) judicial decisions applying the safe harbor for forward-looking statements contained in the the Private Securities Litigation Reform Act of 1995. Paul Weiss has poste ...

The Recent Articles page contains a new article addressing (1) federal rule changes that are expected to go into effect on December 1, 2007; (2) the activity of the Advisory Committee on Civil Rules dealing with experts and summary judgment; and (3) the Standing Committee's Time Computation Project. ...

Judge Hudson of the Eastern District of Virginia ruled on January 16, 2007, that, even if an appellant cannot demonstrate a likelihood of prevailing on appeal, if the appellant raises a significant issue of first impression that the Court of Appeals may resolve differently, the appellant has ‛at least demonstrated a substantial case on the merits. A stay may ther ...

Under many states’ laws, a novation agreement — under which a new party is substituted for an original contracting party — terminates the prior contract between the parties. Does that apply to an arbitration clause in the underlying contract? Goshaw Dedicated Ltd. v. Portsmouth Settlement Co. I, 2006 U.S. Dist. LEXIS 91036 (N.D. Ga. Dec. 18, 2006), holds tha ...