In an opinion yesterday, Judge Cote ruled inadmissible certain deposition designations that a group of defendants wanted to use at a forthcoming antitrust trial because the witnesses were corporate representatives who lacked personal knowledge of the matters to which they testified.

As Judge Cote explained, even though Rule 30(b)(6) authorizes deposition testimony via corporate representatives that are supposed to gather knowledge from others, it does not follow that the testimony meets the standards for admissibility at trial:
Continue Reading Judge Cote: Corporate Representative Deposition Testimony Must Be Based on Personal Knowledge to Be Admissible at Trial

Yesterday, Judge Sweet found that there was sufficient evidence to survive summary judgment regarding allegations that Bear Stearns hid material information about its lack of liquidity and other problems during the financial crisis.  He rejected the defendants’ argument that the supposedly hidden risks were “publicly known as a result of Bear Stearns’ disclosures”:

Defendants’ opposition and cited disclosures demonstrate textbook disputes of material fact sufficient to defeat a motion for summary judgment.

For example, both Plaintiff and Defendants point to a disclosure stating “inability to raise money in the long- term or short- term debt markets, or to engage in repurchase agreements or securities lending, could have a substantial negative effect on [Bear Stearns’ ] liquidity. ” Defendants frame this as sufficient disclosure to alert Plaintiff to risks, defeating the possibility of a misstatement or omission. Plaintiff emphasizes that Defendants disclosed only the possibility but not the certainty that Bear Stearns was already experiencing negative pressure as a result of its reliance on repo financing.  . . .

“Nothing short of a complete failure of proof concerning an essential element of the nonmoving part y’s case will be sufficient to award summary judgment.” Celotex Corp . v . Catrett, 477 U.S. 317, 323 (1986). The disclosures Bear has identified are not so forthright and comprehensive that it can be said no dispute of material fact exists.

Continue Reading Judge Sweet: Allegations of Bear Stearns’ Material Omissions Before Its Collapse Survive Summary Judgment

Last week, Judge Rakoff held that courts should generally be wary of admitting handwriting expert testimony under Federal Rule of Evidence 702.  His opinion notes that handwriting analysis, unlike DNA or other forms of scientific evidence, did not arise from scientific inquiry and instead was created solely for use in the courtroom.  Judge Rakoff found the expert’s opinion evidence “far too problematic” to be admissible towards determining whether a party’s signature at issue in the case was authentic.

After applying the Daubert factors, Judge Rakoff concluded that:
Continue Reading Judge Rakoff Rejects Handwriting Expert Under FRE 702