The American Bar Association recently published Formal Opinion 11-460 to provide guidance to attorneys regarding their ethical duty upon discovering emails between a third party and the third party’s attorney. The Opinion interprets Model Rule 4.4(b) literally, concluding that neither that rule nor any other requires an attorney to notify opposing counsel of receipt of potentially privileged communications. The Opinion is of particular note because it directly contradicts the New Jersey Supreme Court’s opinion in Stengart v. Loving Care Agency. Inc. 201 N.J. 300 (2010).
Author: Suzanne Herrmann Brock
Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record reflects about your intentions. Although both the plaintiff and the defendant in E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, demonstrated that the other intentionally destroyed relevant evidence, as is detailed below, the Court sanctioned only defendant Kolon Industries, Inc. (“Kolon”) based on its manifest bad faith (read the decision here). As is discussed in an earlier post on Gibbons’ E-Discovery Law Alert (which you can read here), plaintiff E.I. du Pont de Nemours and Company (“DuPont”) escaped a similar fate based on its demonstrable good faith. In short, this case teaches that the intentional deletion of relevant evidence does not per se lead to sanctions. Rather, the parties’ conduct — or misconduct, as the case may be — must be judged contextually.
Pennsylvania Court Orders Plaintiff to Disclose Facebook and MySpace Passwords, User Names, and Log in Names to Defendant
A Pennsylvania trial court recently became one of a growing number of courts to rule that a plaintiff’s non-public Facebook and MySpace postings are discoverable. On May 19, 2011, in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) the Court of Common Pleas of Pennsylvania granted the defendant’s motion to compel the plaintiff, a former employee of the defendant, to disclose his Facebook and MySpace passwords, user names and log in names. Notably, the Court reasoned that because the plaintiff voluntarily posted all of the pictures and information on his Facebook and MySpace sites, he had no reasonable expectation of privacy to the postings although the posts were on non-public pages.
Obtaining data and images from social networking sites (“SNS”) such as Facebook, LinkedIn and MySpace has become commonplace in civil and criminal litigation. However, issues surrounding proper authentication of this information at trial remain unresolved. The New York Supreme Court’s recent opinion in People v. Karon Lenihan, 1714/2008 (Sup. Ct., Queens Cty. Nov. 12, 2010)highlights judicial skepticism surrounding the use of SNS evidence.