The Summary Judgment Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure held a mini-conference in New York yesterday (Monday, 1/29/07). No conclusions were reached, and the Subcommittee’s deliberations remain tentative. But a number of interesting proposals for amending Rule 56 discussed. The most significant issu ...

On January 24, 2007, the Second Circuit instructed the prevailing defendants/appellants in the IPO Securities Litigation (In re Initial Public Offering Sec. Litig., 2006 U.S. App. LEXIS 29859 (2d Cir. Dec. 5, 2006)) to respond to the petition for rehearing and rehearing en banc filed by the plaintiffs/appellees. Since petitions for rehearing are often denied withou ...

As amended effective December 1, 2006, Fed.R.Civ.P. 26(f) requires that, at the initial discovery conference, the parties discuss ‛any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.“ Williams vs. Sprint/United Mgmt. Co., 2007 U.S. Dist. LEXIS 5477 (D. Kan. Jan. 23, ...

As previously noted, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York today (Monday, 1/29/07) to consider possible amendments to summary judgment practice under Rule 56. A summary of the discussion will appear in a posting tomorrow (Tuesday, 1/30/07). ...

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 ...