Publication
July 01, 2011

In this issue of The Spotlight we discuss a number of recent U.S. Supreme Court decisions. Three of the four continue a trend in which the Court narrowed grounds for plaintiffs to bring suit under federal law; the fourth addresses a trustee’s attorney-client privilege. In two commercial cases, the Court decided that plaintiffs failed to establish jurisdiction in state court based upon the distribution of products through the “stream of commerce” in that state. In the noted decision in Wal-Mart Stores, Inc. v. Dukes, the Court rejected certification of a class and held that a federal court could not enjoin a state court from certifying a parallel state class.

In United States v. Jicarilla Apache Nation, the Court upheld the government's privilege assertion against the Nation with respect to documents related to the government’s actions as trustee for the Nation’s property, because the Nation was not the government’s “real client.” In other developments, also addressing attorney-client privilege, the Third Circuit reversed a decision finding privilege waived, because the privilege had not attached due to a documentary crew’s presence at attorney-client meetings.

Several important district court decisions addressed when a party waives its right to arbitrate. Finally, two district court decisions departed from a recent trend of imposing stiff penalties for failing to preserve electronically stored information (“ESI”). Judge Scheindlin of the Southern District of New York withdrew an opinion criticizing the government for producing ESI without metadata, and a second court, in Texas’ Southern District, rejected default judgment as the appropriate penalty for the failure to preserve emails.

Regards,

David J. Bradford and Craig C. Martin
Co-Chairs Jenner & Block Litigation Department

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