We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on May 23 and June 7. Defendant is accused of disorderly conduct for allegedly having blocked traffic during an Occupy Wall Street protest. The District Attorney has sought defendant’s simultaneous tweets that allegedly will undermine his defense that he was forced onto the street by police officers. The trial court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter and then denied Twitter’s own motion to quash.
Author: Paul A. Saso
We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 on May 23, 2012 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on June 7, 2012. The Court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter, ruling that the defendant, charged with disorderly conduct after allegedly marching onto the Brooklyn Bridge during an Occupy Wall Street protest, had no reasonable expectation of privacy in communications of this type and lacked standing to seek the protections of the Stored Communications Act. Seeing its user fail in his efforts to quash the subpoena, Twitter took the matter into its own hands, moving for the same relief as defendant and ultimately obtaining the same result. The more recent decision, which addressed Twitter’s challenges, raised considerable buzz in legal and social media circles as a case of first impression because it concerned (1) a criminal rather than a civil matter and (2) a motion by a social media site rather than an individual user.
A few weeks ago, we reported on the recent decision of the People of the State of New York v. Harris, Index No. 080152/2011, (Crim. Ct. Apr. 20, 2012). There, the Court denied defendant Malcolm Harris’s motion to quash the District Attorney’s subpoena requiring the production of defendant’s user information, email addresses, as well as any Tweets posted for a four-month period from Twitter, Inc., all in connection with criminal charges pending against Mr. Harris due to his alleged involvement in an Occupy Wall Street protest. You can read our most recent blog post on this case from May 23. Twitter subsequently moved to quash the Court’s order on May 7, 2012, on the basis that the order imposes an undue burden upon it pursuant to Section 2703(d) of the Stored Communications Act (18 U.S.C. §§ 2701-2711) (the “SCA”), which provides that “[a] court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if. . . compliance with such order otherwise would cause an undue burden on such provider.” Twitter argues that compliance with the Court’s order compelling the production of defendant’s Twitter user information imposes an undue burden for at least three reasons.
In a recent case before the Criminal Court of the State of New York, the prosecution served a subpoena duces tecum on Twitter, Inc., seeking user information including the e-mail address and Tweets for a two-month period under the Twitter account, @destructuremal, which was believed to be that of the defendant Malcolm Harris. The People of the State of New York v. Harris, Index No. 080152/2011, (Crim. Ct. Apr. 20, 2012). Mr. Harris had been charged with disorderly conduct after allegedly marching on to the roadway of the Brooklyn Bridge during an Occupy Wall Street protest. The prosecution sought to refute Mr. Harris’s expected defense that the police led him into stepping on to the roadway of the Brooklyn Bridge, by examining his contradictory, contemporaneous Tweets.
Inadvertent Production of Two Privileged Pages Among Over Two Million May Waive the Attorney-Client Privilege
The burdens associated with a massive document review of electronically-stored information (“ESI”) will not, in and of themselves, preclude a court from finding that a party has waived the attorney-client privilege with respect to an inadvertently produced document. In Jacob v. Duane Reade, Inc., Magistrate Judge Katz of the United States District Court for the Southern District of New York held that a privileged, two-page email that was inadvertently produced during the review of over two million documents in less than one month did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to timely request its return. Duane Reade had used an outside vendor and review team to conduct its review of this large volume of ESI. The document in question concerned a meeting among several individuals, including an in-house attorney at Duane Reade. Duane Reade argued that the email was inadvertently produced because it was neither from nor to an attorney, and only included advice received at a meeting from an in-house attorney, identified in the email only by the first name “Julie.”
Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases
The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).
FINRA Issues Regulatory Notice 11-39: Social Media Websites and the Use of Personal Devices for Business Communications
In August 2011, FINRA, the self-regulatory agency of the securities industry, issued Regulatory Notice 11-39, offering additional guidance concerning the use of social media and supplementing its first notice on the subject–Regulatory Notice 10-06, issued in January 2010. Notice 11-39 focuses on issues relating to FINRA members’ use of social media, including record-keeping, supervision and responding to third-party posts and links. The Notice includes 14 “Q&As,” which provide instruction on the practical application of a firm’s and “associated person’s” (i.e., FINRA members) obligations under applicable laws and regulations when it comes to social media. With respect to record-keeping requirements, social media websites raise new complications because member firms do not themselves typically sponsor or host the content on those websites. The Notice, however, clarifies that record retention requirements continue to apply to content on social media sites and that the controlling question is whether the communications on those sites relate to the firm’s “business as such.” Any business communication made via Facebook, for example, must be “retained, retrievable and supervised.”
Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ
Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).
Trial Court Says New York’s “Requester Pays” Rule Applies Only to Data That Is Not Readily Available
As discussed in a recent post, there exists a dichotomy between the New York state and federal courts with respect to which party should bear the cost of producing inaccessible data. A recent New York Supreme (Trial) Court decision held that New York’s standard “requester pays” rule only applies to data that is not “readily available.” Silverman v. Shaoul, 2010 N.Y. Slip Op. 20507, 2010 N.Y. Misc. (Sup. Ct. New York Cty. Nov. 3, 2010).
A recent article in the New York Law Journal by the secretary of the e-discovery committee of the Commercial and Federal Litigation Section of the New York State Bar Association underscored the confusion that remains in New York courts with respect to which party is responsible for bearing the cost of electronic document production. The article discusses cases that, on the one hand, state “what many have long believed was the rule in New York,” that “generally, the cost of [electronic] document production is borne by the party requesting the production.” Response Personnel, Inc. v. Aschenbrenner, 77 A.D.3d 518, 519, 909 N.Y.S.2d 433, 434 (1st Dept. 2010) (emphasis added). On the other hand, the First Department has also held that they “see no reason to deviate from the general rule that, during the course of the action, each party should bear the expenses it incurs in responding to discovery requests.” Clarendon Nat. Ins. Co. v. Atl. Risk Mgmt., Inc., 59 A.D.3d 284, 286, 73 N.Y.S.2d 69, 70 (1st Dept. 2009) (citing Waltzer v. Tradescape & Co., L.L.C., 31 A.D.3d 302, 819 N.Y.S.2d 38 (1st Dept. 2006)).