E-Discovery Law Alert Blog

NY Commercial Division Promotes Technology Assisted Review

NY Commercial Division Promotes Technology Assisted Review

On July 19, 2018, the Chief Administrative Judge of the Courts issued an administrative order adopting a new rule for the New York Commercial Division supporting the use of technology-assisted document review. Based on a recommendation and proposal by the Subcommittee on Procedural Rules to Promote Efficient Case Resolution, Commercial Division Rule 11-e has been amended to state: The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production. The Subcommittee noted that document review “consumes an average of 73% of the total cost of document production in cases involving electronic discovery.” With that in mind, the Court adopted a rule meant to streamline and make electronic discovery more efficient in large, complex and e-discovery-intensive cases. The use of technology-assisted review is still optional. It should be considered...

“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

The New York Court of Appeals unanimously ruled in Forman v. Henkin that “private” Facebook posts (i.e., those accessible only to your Facebook “friends,” as opposed to the general public) are discoverable if they meet the common discovery standard—that they are “material and necessary to the prosecution or defense of an action.” In Forman, plaintiff alleged she was severely injured when she fell from defendant’s horse. Plaintiff alleged her injuries impaired her ability to communicate and participate in what she described as the active lifestyle she enjoyed before the accident. Plaintiff alleged she posted on Facebook many photographs that depicted her pre-accident lifestyle, but that communicating on that social media platform had become so difficult after the accident that she deactivated the account six months later. She alleged that, after her accident, it would take hours to write a message on Facebook because she would have to re-read it several times before sending it to be sure that it made sense. Defendant requested an unlimited authorization to obtain plaintiff’s “private” Facebook account postings, arguing they would be relevant to plaintiff’s claims. The Supreme Court ordered plaintiff to produce all photographs (that were not of a romantic or sexual nature) and an...

Inadvertent Production Deemed Waiver of Privilege Where Counsel Was Reckless and Clawback Agreement Was Unclear

Inadvertent Production Deemed Waiver of Privilege Where Counsel Was Reckless and Clawback Agreement Was Unclear

The Southern District of Ohio recently clarified the relationship between FRE 502 and clawback agreements in its finding that a party’s counsel was “completely reckless” in producing the same privileged documents on two separate occasions. In Irth Sols., LLC v. Windstream Commc’ns LLC, the parties entered into a clawback agreement that was memorialized in three bullet points in an email exchange between counsel. The agreement provided that an inadvertent disclosure (a term not defined in the agreement) would not waive the attorney-client privilege. The parties further agreed that, “based on the scale of the case,” it was unnecessary to ask the court to enter an order under Rule 502(d), whereby the court may order “that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” Defendant then produced documents, 43 of which defendant later discovered were privileged. Defense counsel argued the reviewing defense attorney failed to designate the documents privileged because he was not familiar with the name of defendant’s in-house counsel and the second level review neither caught this error nor flagged search words such as “legal.” Upon discovering the error, defense counsel requested a clawback of the 43 documents. Plaintiff’s counsel...

SDNY Expands Interpretation of “Possession, Custody, or Control” – Orders Adverse Inference Against Company for Spoliation of Text Messages by Non-Party, Independent Contractor on Personal Phone

SDNY Expands Interpretation of “Possession, Custody, or Control” – Orders Adverse Inference Against Company for Spoliation of Text Messages by Non-Party, Independent Contractor on Personal Phone

In Van Zant, Inc. v. Pyle, et al., 270 F. Supp. 3d 656 (S.D.N.Y. 2017), the Southern District of New York ordered an adverse inference against Los Angeles-based Cleopatra Entertainment LLC (“Cleopatra”), based on the conduct of its independent contractor and non-party to the case, Jared Cohn (“Cohn”). Cohn had been hired by Cleopatra to write and direct a motion picture about the 1977 plane crash that killed two members of the Southern rock band Lynyrd Skynyrd. During the film’s production, Cleopatra and Cohn enlisted the aid of Lynyrd Skynyrd drummer Artimus Pyle (“Pyle”), who, along with other surviving band members (and the estates of deceased members), was party to a 1988 Consent Order that set limits on the permissible use of the Lynyrd Skynyrd name; the likenesses, names, and biographical material of its members; the band’s history; and related items. The Consent Order also detailed the respective parties’ rights to royalties from Lynyrd Skynyrd music, merchandise, and other proceeds, and prohibited the parties from “implicitly or through inaction authoriz[ing] the violation of the terms [of the agreement] by any third party.” Pyle initially did not make Cleopatra aware of the Consent Order, but plaintiffs (also parties to the 1988...

A Cloud of Confusion: The EDPA Compels Google to Disclose Data Stored Abroad Under the Stored Communications Act

A Cloud of Confusion: The EDPA Compels Google to Disclose Data Stored Abroad Under the Stored Communications Act

The Eastern District of Pennsylvania, in a departure from the Second Circuit’s Microsoft ruling, recently required Google to comply with search warrants issued pursuant to the Stored Communications Act (“SCA”), and produce data stored on servers abroad. The Eastern District joins other district courts, including the Northern District of California and the Eastern District of Wisconsin, in requiring technology companies to comply with subpoenas or warrants issued pursuant to the SCA and produce internationally-stored data. See In re Two Email Accounts Stored at Google, Inc., No. 17-1234, 2017 U.S. Dist. LEXIS 101691 (E.D. Wis. June 30, 2017); In re Search of Content that is Stored at Premises Controlled by Google, No. 16-80263, 2017 U.S. Dist. LEXIS 59990 (N.D. Cal., Apr. 19, 2017). In In re Google Search Warrants, the court found that Google’s compliance with the government’s warrants required a domestic application of the SCA because the relevant conduct, data retrieval and production, took place at Google’s headquarters in California. In support of its holding, the court distinguished Google’s method of data storage from Microsoft: whereas Microsoft stored its data in different centers abroad, Google breaks its data into “shards,” and “stores the shards in different network locations in different countries...

Gibbons Ranked Best Law Firm and Best Lobbying Firm in Inaugural NJBIZ Reader Rankings

Gibbons Ranked Best Law Firm and Best Lobbying Firm in Inaugural NJBIZ Reader Rankings

Gibbons P.C. has been selected as the best law firm and the best lobbying firm in New Jersey in the inaugural NJBIZ Reader Ranking Awards. The Reader Rankings were compiled through an online survey seeking the best of the best in a wide range of categories and subcategories. According to NJBIZ, “The publication of the 2017 Reader Rankings by NJBIZ is our way of recognizing the regard our readers have for the businesses in their communities. What makes the companies listed here distinct is the devotion they inspire among our region’s business leaders.” Gibbons has been recognized by numerous organizations and publications for the firm’s work on behalf of clients, including being named among the New Jersey Law Journal’s Litigation Departments of the Year, earning the top overall honors in 2014, as well as recognition for the practice areas of class actions (2017), products liability (2016), and commercial litigation (2013). The Gibbons Government Affairs Department has ranked as the #1 lawyer-lobbying firm in New Jersey for nine consecutive years, according to the New Jersey Election Law Enforcement Commission In addition, the firm and Gibbons attorneys are also consistently recognized in annual client-review publications such as the Chambers USA Guide to...

Defendant Acting With “A Pure Heart But Empty Head” Not Subject to Spoliation Sanctions Under Amended Rule 37(e)

Defendant Acting With “A Pure Heart But Empty Head” Not Subject to Spoliation Sanctions Under Amended Rule 37(e)

A recent decision denying a motion for spoliation sanctions highlights that a moving party must show that even clearly spoliated ESI is not available from other sources to qualify for an award of any form of sanction under Rule 37(e). In Snider v. Danfoss, LLC, the Northern District of Illinois held that a defendant’s admitted and erroneous destruction of duplicative ESI did not prejudice the plaintiff and therefore sanctions were not warranted. In other words, “no harm, no foul.” Plaintiff Snider worked for Danfoss for a number of years, during which time she was sexually harassed by another employee. Plaintiff informed her acting supervisor of the harassment, and was later transferred to a different position, which she viewed as a demotion and retaliation for her complaint. Approximately one week after the transfer, Plaintiff’s counsel sent a generalized, “preserve all evidence” letter to Danfoss. She then quit, and, pursuant to Danfoss’s policy, her emails were deleted 90 days after her employment ended. Plaintiff’s acting supervisor also later left Danfoss’s employment, and her emails were deleted in accordance with Danfoss’s auto-deletion policy. After the case was filed, Plaintiff deposed her acting supervisor, who suffered from a case of “testimonial amnesia” and was...

Do You Like What You’re Reading? Rate Our Blog: The ABA Journal’s “Web 100” Award

Do You Like What You’re Reading? Rate Our Blog: The ABA Journal’s “Web 100” Award

Thank you for visiting the Gibbons E-Discovery Law Alert blog! Content on our site, authored by members of the Gibbons E-Discovery Task Force, analyzes current issues, concerns, and developments in electronic discovery and corporate information management law. How are we doing? To review our blog and nominate the Gibbons E-Discovery Law Alert for this year’s ABA Journal’s “Web 100” award, please visit abajournal.com/blawgs/web100 and share why you are a “fan” of our site (Please note: the voting process closes on Sunday, July 30). Thank you in advance for your support.

Germany Moves to Amend Privacy Laws in Anticipation of the EU’s General Data Protection Regulation

Germany Moves to Amend Privacy Laws in Anticipation of the EU’s General Data Protection Regulation

With the EU’s General Data Protection Regulation (GDPR) scheduled to go into effect in May of 2018 – an ambitious effort to harmonize a patchwork of EU privacy laws and create a uniform privacy regime that restricts the collection, processing and use of individual information – Germany has become the first member state to amend its own privacy laws in anticipation of the coming changes. In May 2017, the German Federal Council (‘Bundesrat’) passed an act intended to bring the current German data protection laws in line with the requirements of the GDPR. On July 5, 2017, the new German Federal Data Protection Act (‘Bundesdatenschutzgesetz’), referred to as the German Data Protection Act, was countersigned by the German Federal President and published in the Federal Law Gazette. The Act utilizes some of the framework and concepts of the GDPR to enhance Germany’s existing data protection rules, while at the same time modifies existing German privacy rules to allow for certain data to be used more freely in cases of national security and employment. Under the new German law, employee data can be processed if “necessary” to establish or carry out the employment relationship (for example, to enforce a collective bargaining agreement)....

Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

In a recent case, Magistrate Judge Mark L. Carman of the United States District Court for the District of Wyoming reminds practitioners that requests for social media data still must be relevant and proportional to the dispute. In this auto accident case, the Court found a balance between the need for defendants to determine whether a plaintiff is lying or exaggerating and the possibility that allowing defendants too much leeway in seeking social media could dissuade injured plaintiffs from pursuing legitimate claims for fear of humiliation and embarrassment. Plaintiff alleged she sustained physical injuries, traumatic brain injury, posttraumatic stress disorder, anxiety, and depression. In an extraordinarily broad discovery request, defendant requested that plaintiff produce “an electronic copy of your Facebook account history.” Plaintiff downloaded and produced information from her Facebook accounts gathered by using several keyword search terms. However, plaintiff refused to produce her entire Facebook archive, and defendant moved to compel. The Court explained that “[s]ocial media presents some unique challenges to courts” in determining the proper scope of discovery. In particular, Judge Carman explained: “People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited...