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Statistical evidence is admissible to establish predominance under FRCivP 23(b)(3) if that evidence would be admissible in an individual action on the same claim, the statistical evidence is linked to the plaintiffs' theory of liability and the use of averaging assumptions does not conceal the variations that otherwise would defeat class certification.  Here, plaintiffs' statistical evidence satisfied those three tests. … Read More

F.R.Civ.P. 37(c)(1) provides that a party that fails to provide information or identify a witness as required by F.R.Civ.P. 26(a) or (e) is barred from using the undisclosed evidence or witness unless the district court finds the failure substantially justified or finds a different sanction more appropriate.  To invoke the court's power under this provision, the offending party must move… Read More

The trial court abused its discretion in excluding an expert's opinion as to lost profits in ruling on a summary judgment motion.  While most of his opinion was speculative, one part dealt with lost profits using a before-and-after method based on 16 months of actual profits earned before the allegedly harmful event.  The before-and-after method is an approved way to… Read More

Under the Stored Communications Act (18 USC 2701, 2707) creates a private right of action against a person who intentionally accesses, without authorization, an electronic communication system, thereby obtaining an electronic communication in the system's electronic storage.  For this purpose, electronic storage includes storage by the system for the purpose of backup.  This decision holds that wife raised triable issues,… Read More

Three conclusions reached in a Police Foundation report of the incident in which plaintiff was injured shoulld have been admitted into evidence under the adoptive admission exception to the hearsay rule.  (Evid. Code 1221, 1222.)  The police chief had stated at a press conference that he adopted the report's conclusions as true.  And, the police chief was authorized to make… Read More

This decision outlines the seven factors a trial court should consider in deciding a third party's motion to quash a subpoena served on it by a criminal defendant.  Most important of those factors, particularly when the subpoena seeks social media posts, are the defendant's proof of a plausible justification for needing the subpoenaed documents and the consideration of privacy and… Read More

In a groundwater pollution case, the trial court abused its discretion in awarding sanctions against the Water District since it had a reasonable basis for denying requests for admission based on evidence the defendant used contaminants on its property and on expert testimony that that release of those chemicals contaminated the groundwater. Read More

Defendant’s repeated kicks and punches of the plaintiff was sufficient evidence of malice and/or intent to injure, thus providing sufficient justification for a punitive damages award. Read More

Motions to quash a subpoena on an internet service provider may be pursued even after the subpoena has been withdrawn, since there is no assurance in a voluntary withdrawal that the subpoena will not be reissued later, further harassing the same party for his exercise of free speech rights. Read More

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