December 2012 archive

California Appellate Court criticizes expert witness exclusion in eminent domain case

Valuation in an eminent domain case is necessarily accomplished through experts. In County Of Glenn vs. Patrick Foley (California Third Appellate District, case no. C068750, November 26, 2012), the Trial Court was reversed with directions. The trial court had excluded the property owner’s valuation expert, thus effectively eviscerating the property owner’s case. The subject property …

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Huge Patent Infringement Damage sets the stage for further Federal Circuit Guidance on Reasonable Royalties

In Carnegie Mellon University vs. Marvell Technology Group (Western District of Pennsylvania, Case no. 09-290), the jury awarded $1.17 billion in reasonable royalty damages. This is one of the largest patent infringement damage awards ever. Marvel indicated it will appeal. Recently, large damage awards have not fared well on appeal, thus generating a number of …

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Another example of a plaintiff waiting too long before addressing damages

A Northern District of California case (Brandywine Communications Technologies, LLC, vs. Cisco Systems, Inc., Case C 12-01669 WHA), provides an analysis of the damage disclosure requirements that a plaintiff has in a patent infringement case.  It applies equally to any commercial dispute. The Court started with the damage disclosures under FRCP 26(a)(1)(A)(iii), which states:  A …

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Qui Tam suits recovering extraordinary amounts

On December 4, the Department of Justice (DOJ) released a statement bragging about the money it had recovered. In reality, the government had much less to do with this than the private citizens and their lawyers who filed qui tam False Claim Act cases on behalf of the U.S. when the U.S. declined to take …

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California’s new deposition limitation has plenty of exceptions, including experts

Effective January 1, 2013, AB-1875 amends California Code of Civil Procedure (CCP) Section 2025.290, which applies to oral depositions in civil cases. The revised law limits the deposition to seven hours of total testimony. Currently, CCP § 2025.290 does not contain any time limits on depositions. This revision brings CCP § 2025.290 more in conformity …

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Northern District of California ESI Guidelines should be duplicated elsewhere

The Northern District of California recently issued guidelines for e-discovery of electronically stored information (ESI). The guidelines and links to related resources are summarized here. The resources include:             An ESI checklist to assist in the ESI meet and confer process A Model Stipulated Order re: ESI discovery A standing …

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Supreme Court Brings California Closer To The Federal Expert Witness Admissibility Standard

In a unanimous opinion, the California Supreme Court clarified that trial courts may use either California Evidence Code Sections 801(b) or 802 to admit or exclude the expert’s testimony. Potentially, the Opinion widens California judicial authority to exclude expert testimony by placing California closer to the federal Daubert standard and the majority of other states …

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The decline in California’s exodus fizzles out

The good news for California is that not as many of its residents are leaving the state now as they were six or seven years ago. The bad news is that the exodus continues to march onward, together with its domestic migration gap, which has remained steady over the past several years. 2006 saw the …

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“Hollywood Accounting” Attack Upheld By The Ninth Circuit

“Who Wants to be a Millionaire” is an American game show that is based on the UK program of the same name. When ABC contracted for the show in North America, the program and concept were already successful. The showed aired on Disney’s ABC in primetime for three years, and has been in syndication for …

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Rules of Thumb & Formulaic Software Models Are Dangerous for Damage Calculations

Plaintiffs often desire short cuts to damage measurements. Given the cost of using experts employing proper methods and data, the temptation is obvious. For example, business valuation programs are commonly available that will spit out a result once the user inputs a few financial statistics for the subject company. Why pay thousands of dollars for …

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