Category: Legal Decisions and Court Rules

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...

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...

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...

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...

Second Circuit Reverses Lower Court Microsoft Decision and Holds That Email Evidence Stored Abroad Cannot Be Gathered Pursuant to Criminal Warrant Issued Under Stored Communications Act 0

Second Circuit Reverses Lower Court Microsoft Decision and Holds That Email Evidence Stored Abroad Cannot Be Gathered Pursuant to Criminal Warrant Issued Under Stored Communications Act

In a prior post, we reported that Southern District of New York Magistrate Judge Francis determined that Microsoft must comply with a U.S. Government’s warrant seeking a user’s email content, even though the emails are stored in Microsoft’s datacenter in Dublin, Ireland. After the lower court declined to quash the subpoena and held Microsoft in contempt for failing to turn over customer content stored abroad, Microsoft appealed to the Second Circuit. On July 14, 2016 the appeals court issued an extensive opinion reversing the lower court’s ruling.

New “Privacy Shield” for EU-U.S. Data Transfers Gains Acceptance by Europe and U.S. Regulators 0

New “Privacy Shield” for EU-U.S. Data Transfers Gains Acceptance by Europe and U.S. Regulators

As previously noted, in response to the European Court of Justice ruling in Schrems v. Data Protection Commissioner (Case C-362/14) striking down as inadequate the so-called “safe harbor” agreement that existed for more than a decade, the EU Commission and U.S. Department of Justice announced the framework of a deal to allow transatlantic data transfers between the EU and U.S. without running afoul of Europe’s strict data protection directives. Described as the EU-U.S. “Privacy Shield” agreement, that framework has now been vetted by EU Member States, modified in certain respects, and formally adopted on July 12, 2016 by the European Commission.

New York Federal Court Weighs in on Apple Encryption Debate 0

New York Federal Court Weighs in on Apple Encryption Debate

Anyone reading recent headlines knows that Apple, Inc. is engaged in a legal, and ultimately political, struggle with the U.S. Government over access to the cell phone of Syed Rizwan Farook, one of the shooters in the December 2, 2015 terror attack at the Inland Regional Center in San Bernardino, California. The core issue in that California proceeding is whether Apple should be forced to “create and load Apple-signed software onto the subject iPhone device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the passcode to obtain access to the protected data contained therein.”

Signs of Life?  – Judge Francis Opines that “Inherent Authority” to Sanction Spoliation Related Conduct Survives Amended Rule 37(e) 0

Signs of Life? – Judge Francis Opines that “Inherent Authority” to Sanction Spoliation Related Conduct Survives Amended Rule 37(e)

In perhaps the first published decision since the amended Federal Rules took effect on December 6, 2015, United States Magistrate Judge James C. Francis IV, a preeminent judicial e-discovery authority, relied upon amended Rule 37(e) and, somewhat controversially, his inherent authority, to sanction a litigant for evidence tampering and spoliation. The opinion is significant, not solely because it invokes the newly-minted rule, but because it interprets amended Rule 37(e) as not foreclosing the court’s inherent authority as a viable alternative to sanction spoliation-related conduct that may not strictly satisfy the new Rule’s elements.