Friday, December 20, 2013

Why Write Fifty Pages but Decline to Publish?

Asahi Kasei Pharma Corp. v. Actelion Ltd., No. A133927 (D1d5, as modifed Jan. 16, 2013)

This is a very long and detailed opinion that is well worth reading if you litigate business torts. It addresses, among other things: instructional sanctions for failure to timely produce discovery; what to do when an expert relies on materials that are not produced because he is no longer able to obtain them; the requirement that hearsay evidence submitted for non-hearsay must be relevant as to those specific issues; hearsay exceptions for the effect on the listener, lay opinion in issues of law; and the sufficiency of the evidence on several damages issues. Unfortunately, the discussion on all of these issues (more than 50 pages of it) is contained in sections of the opinion that the court declines to publish. The only published section affirms
the trial court—in a cogent discussion that comprehensively reviews the case law—on some instructional issues regarding the elements of intentional interference with contract, the Applied Equipment rule that a defendant can’t interfere with its own contract, and the justification defense.


Postscript: On a publication request by a nonparty under Rule of Court 8.1120, the court published two subsections on the sufficiency of the evidence of lost profits. The rest of the opinion, however, remains unpublished.

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