A requesting party seeking to compel discovery into the producing party’s document collection processes – sometimes called “discovery on discovery” – has always faced an uphill battle. Courts fear allowing discovery to continue indefinitely. Mere suspicion of deficient document production is insufficient; the requestor must proffer an “adequate factual basis” for its belief. Recently, the Southern District of New York found that such a showing is not made where the requestor produced only limited relevant unproduced emails and the requestor did not specify how its requested relief would remedy the alleged discovery defects.
Author: Gibbons P.C.
Attorney competence is currently one of the most-discussed issues in e-discovery. Not surprisingly, much attention has been paid to the proposed ethics opinion issued last year by the State Bar of California that addresses an attorney’s ethical duties in the handling of the discovery of ESI. (See e.g., our previous blog post summarizing topics addressed at the Gibbons Eighth Annual E-Discovery Conference.) In response to several critical comments received during the public comment period, the California Bar’s Standing Committee on Professional Responsibility and Conduct met in December 2014 and issued a revised version of Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests). The public comment period for the revised version of the proposed opinion ends on April 9, 2015.
Florida is the Latest State to Allow Attorneys to Advise Clients About the Removal of Social Media Posts and Pictures
On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued an advisory opinion holding that before litigation commences, and absent any other preservation obligation, an attorney may advise a client to: (1) remove information from social media pages and (2) change privacy settings from public to private, as long as the client retains a record of any deleted information or data. In so holding, the Florida ethics committee joined panels from New York, Pennsylvania, and North Carolina that have issued similar guidance.
On December 15, 2014, the New Jersey Assembly voted 75-to-0 to advance a bill that would expand the existing data breach notification requirements for companies doing business in the state. The bill, A3146, would broaden the type of information that, if compromised, would trigger a company’s obligation to notify customers of the breach. The proposal now heads to the Senate, where a similar bill, S2188, has been pending in the Commerce Committee since June.
In Pero v. Norfolk Southern Railway, Co., No. 14-cv-16 (E.D. Tenn. Dec. 1, 2014), the United States District Court for the Eastern District of Tennessee concluded that a party cannot use a video software license to block a party from obtaining relevant evidence. Pero, an employee of Norfolk, sued after he was injured while operating a locomotive. The train was equipped with a camera and recorded the events leading to Pero’s injuries. Pero moved to compel production of the video, which could only be viewed using a proprietary software program. Norfolk moved for a protective order, arguing that providing a copy of the video would exceed the scope of its software license. Norfolk took the position that Pero had to pay $500 to purchase his own license or Pero could view the video in Norfolk’s counsel’s office.
E-Discovery Year-in-Review 2014: Panel at Gibbons Eighth Annual E-Discovery Conference Discusses Recent Developments, Issues, and Trends
On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.
Second Circuit Vacates Defendant’s Conviction Due to Government’s Failure to Authenticate Social Media Evidence
The Second Circuit Court of Appeals has reversed a conviction for unlawful transfer of a false identification document (a forged birth certificate) because the district court abused its discretion and committed error in admitting a Russian social media page — akin to Facebook — that the government failed to authenticate as required by Federal Rule of Evidence 901.
On September 16, 2014, the Judicial Conference approved, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments and the approval process, see our previous blog posts from June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013.) The proposed amendments, which include changes to the definition of the scope of discovery in Rule 26(b)(1) and the applicable standard courts should apply when considering sanctions for ESI spoliation under Rule 37(e), will now be submitted to the U.S. Supreme Court for consideration and approval. If adopted by the Supreme Court before May 1, 2015, and Congress does not intervene, the proposed amendments will take effect on December 1, 2015.
Attempting to Shoot for the Moon and Settle For the Stars During the Meet and Confer Process May Result in Obtaining Neither
A recent decision out of the Northern District of California provides a sobering reminder that a party’s obligation to meet and confer must be undertaken in good faith. If a party is overly aggressive – and therefore perceived not to be acting in good faith – it may wind up with nothing. Boston Scientific Corporation v. Lee, was a fairly typical case involving a former employee’s alleged theft of trade secrets. Defendant Dongchul Lee (Lee) left Plaintiff Boston Scientific Corp. (Boston) and began working for a competitor, nonparty Nevro Corp. (Nevro). Shortly thereafter, Boston sued Lee, claiming theft of trade secrets and violation of a confidentiality agreement.
On May 29-30, 2014, the Judicial Conference’s Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) met and approved the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from May 27, 2014, February 10, 2014, and May 6, 2013.) The Standing Committee approved the entire slate of proposed amendments, including changes to the scope of discovery, as defined in Rule 26(b)(1), and changes to the standard to be applied by courts when imposing curative measures or sanctions for the spoliation of electronically stored information, as per Rule 37(e). Before approving the proposed amendments, the Standing Committee made several minor revisions, including changes to the proposed Committee Notes to Rules 26 and 37 (the meeting minutes setting forth the precise changes were not available as of writing). The Agenda Book from the Standing Committee’s meeting is available.