Blog Entries
Observations about current developments bearing on complex litigation, U.S. and international arbitration, the Federal Rules, and occasionally state rules.
RSS2009 Apr
30 Apr 2009
Work Product Protection Waived By Creating It in Plain Sight of Opponent
29 Apr 2009
When Reasonable Attorneys' Fees Are an Element of Damages, Defendant Has a Seventh Amendment Right to a Jury Trial to Quantify Them, Unless Summary Judgment Is Appropriate
28 Apr 2009
No Pendent Appellate Jurisdiction Over Denial of Summary Judgment Is Conferred by Appealable, Intertwined Denial of Preliminary Injunction — At Least, Where Possibility of Prevailing Still Exists
27 Apr 2009
Spoliation Inference on Summary Judgment — Ready Availability of Evidence Elsewhere Precludes Finding of Spoliation, Despite Destruction
26 Apr 2009
What Is an “Action?” — Defendant Does Not “Bring an Action” in Filing a Compulsory Counterclaim
25 Apr 2009
Issuer Owes No Contractual Duty to Noteholders to File Timely Reports with SEC — Fifth Circuit Agrees with Eighth
24 Apr 2009
RICO — Competitor Not Proximately Injured by Defendant Hospitals’ Fraudulently Inflated Medicare Billing of the Government
23 Apr 2009
Ultimate Sanctions, Appellate Review and Evidence; Relationship of Inherent Power and Rule-Specific Sanctions
22 Apr 2009
Email Evidence — Authentication by Production in a Prior Action
21 Apr 2009
Waiver of Work Product Protection by Production Pursuant to Grand Jury Subpoena and Understanding with Government
20 Apr 2009
Public Records on Dismissal Motions — Eighth Circuit Standard
19 Apr 2009
28 U.S.C. § 1404(a) and Electronically Aided Discovery
18 Apr 2009
Arbitration and Appraisal — Court Enforces Mandatory Appraisal Clause Even Though No Appraisers Exist Who Possess the Contractual Qualifications
17 Apr 2009
Spoliation of One Defendant’s Evidence by Consultant Retained by Joint Counsel Exposes All Jointly-Represented Co-Defendants to Sanctions
16 Apr 2009
E.D.N.Y. Denies Bear Stearns Prosecutors an Injunction Blocking a FINRA Arbitration that Will Disclose Relevant Evidence
15 Apr 2009
Federal Arbitration Act Precludes Parties from Contracting under State Law for Broader Judicial Review Once Motion to Vacate Is Removed, Provided FAA Applies
14 Apr 2009
CAFA — Third Circuit Defines Local Controversy Elements — Jurisdiction Assessed Based on Defendants Remaining in Action — Plaintiff Bears Burden of Proving Lack of Federal Jurisdiction
13 Apr 2009
RICO — Materiality Not an Element of Mail Fraud —Standing Need Not be Pled with Specificity
12 Apr 2009
Ethics — Advocate-Witness Rule Warrants Denial of Pro Hac Vice Application and Exclusion from Representation during Pretrial as Well as Trial Proceedings
11 Apr 2009
Sanctions — Misconduct of Counsel Should Not Be Visited on Client Absent Evidence of Client Participation
10 Apr 2009
Experts — Guilty Knowledge and Criminal Intent Are Matters of Fact, Not Law, and Proper Topics of Expert Testimony
09 Apr 2009
Email Evidence — Attachments to Authenticated Emails Are Themselves Authenticated
08 Apr 2009
No Private Right of Action for Violation of State or Federal Rule of Civil Procedure
07 Apr 2009
Failure to Defend Claims Attacked by Motion to Dismiss Constitutes Abandonment — General Request that Motion Be Denied Is Insufficient
06 Apr 2009
Circuit Splits on Issues of Federal Procedure: New Article
05 Apr 2009
Filing Documents under Seal with Complaint Waives Attorney-Client Privilege and Work Product Protection — Extent of Waiver
04 Apr 2009
Federal Arbitration Act & Diversity Jurisdiction (Part 2) — Jurisdiction to Confirm Award Based on Unarbitrated, Stayed Claims
03 Apr 2009
Sanctions — Not Chilling Creativity vs. Acquiescing in Misconduct
02 Apr 2009
Spoliation — Destruction of Laptop Leads to Dismissal of Plaintiff’s Complaint and Adverse Inference on Counterclaims
01 Apr 2009