Category: Technology Developments and Issues

Do Not Treat Rule 26(g) Certifications as a Mere Formality: Southern District of Florida Cautions Against Client ‘Self-Collection’ of ESI Without Adequate Attorney Oversight

Do Not Treat Rule 26(g) Certifications as a Mere Formality: Southern District of Florida Cautions Against Client ‘Self-Collection’ of ESI Without Adequate Attorney Oversight

In a recent decision reprimanding defense counsel’s lack of oversight of a client’s collection of data during discovery, the District Court for the Southern District of Florida issued a cautionary opinion that should serve as yet another reminder to counsel of the perils associated with allowing a client to self-collect ESI. Similar to a recent decision we addressed from the District Court of the Northern District of California, Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. is a strong reminder that Federal Rule of Civil Procedure 26 should serve as a guide for the action and oversight required of counsel in the search, collection, and production of documents in response to discovery demands. In this age discrimination case, the District Court addressed plaintiff’s motion to compel. Plaintiff sought more specific discovery responses to two requests, attorney’s fees and costs in addition to the “opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of counsel.” Cautioning against the “perils of self-collection of ESI by a party or interested person,” the District Court reminded counsel of its obligation to “have knowledge of, supervise,...

Disappearing Act: Northern District of California Issues Rare Terminating Sanctions for Spoliation on a Massive Scale

Disappearing Act: Northern District of California Issues Rare Terminating Sanctions for Spoliation on a Massive Scale

In WeRide Corp. v. Kun Huang, the Northern District of California addressed an egregious case of discovery abuses and spoliation by defendants in a business litigation involving the alleged theft of autonomous vehicle technology. Applying Federal Rules of Civil Procedure 37(b) and 37(e), the court issued rare terminating sanctions against several defendants who willfully and intentionally deleted various forms of ESI, including relevant emails, status reports, and source code, well after the commencement of litigation and after a preservation order issued by the court requiring the preservation of such information. Defendants compounded these abuses by adopting the use of “DingTalk,” an ephemeral communication technology, after the court had issued the preservation order. WeRide, a technology company engaged in the business of developing autonomous cars, employed defendant Jing Wang as CEO in January 2018. WeRide alleged that Wang went on to form his own company, AllRide, as a direct competitor. WeRide also alleged that former employee defendant Kun Huang was recruited by Wang to work for AllRide while still employed by WeRide. WeRide alleged that Huang downloaded various forms of data during this time period and transferred this data onto several USB devices from two WeRide-issued computers, then proceeded to delete...

ADA Website Liability and COVID-19

ADA Website Liability and COVID-19

Perhaps the last thing that many companies are focused on in the midst of the COVID-19 crisis is the extent to which their websites are compliant with accepted accessibility standards and the threat of ADA website accessibility class actions or individual claims. Unfortunately, however, it appears that ever-enterprising plaintiffs’ attorneys are taking advantage of this crisis to press these already ubiquitous claims even further. Over the past several years, thousands of federal lawsuits, styled as both class and individual actions, have been filed against companies in many industries seeking injunctive and compensatory relief for website-related violations of the Americans with Disabilities Act (ADA). The Department of Justice, which enforces the ADA, has taken the position that the “Web Content Accessibility Guidelines” developed by the World Wide Web Consortium provide a minimum standard, and most courts have agreed. These cases seek injunctive and compensatory relief for violations of the ADA and analogous state and local anti-discrimination laws, specifically alleging that websites are not compliant with the ADA and accessibility guidelines particularly for vision-impaired users. These cases have developed into a lucrative cottage industry for certain plaintiffs’ attorneys, as they are easy to prosecute, difficult to defend, and often result in expedited...

Latest Technology Survey of Lawyers Reveals Troubling Trends

Latest Technology Survey of Lawyers Reveals Troubling Trends

Recently, the American Bar Association released its annual technology survey, a comprehensive report that explores how attorneys are using technology. It revealed some troubling trends. The finding of most concern is that nearly half of the respondents indicated their belief that they were not ethically required to stay apprised of legal technology developments, or that they were unclear regarding their ethical duties. In fact, the ABA formally approved a change to Rule 1.1 of the Model Rules of Professional Conduct in 2012 that clarified that a lawyer’s ethical duty of competence requires knowledge of technology related to their practice. Since that time, approximately half of the states have adopted the revised rule, which provides: “Maintaining Competence To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Indeed, an attorney’s lack of familiarity with relevant technology may subject him/her to sanctions and ethical violations, even in a state that has not adopted the revised ABA Rule. For example, California’s Professional Responsibility Committee opined...

Robot Associates and the Future of Law 0

Robot Associates and the Future of Law

In the last 10 years, robotic surgical systems have revolutionized the way doctors approach minimally invasive surgery, especially laparoscopic and arthroscopic procedures. AI-enabled systems can also provide doctors with suggestions based on symptoms, learning from medical diagnoses and the outcomes of the symptoms. As with medicine, the field of law will be revolutionized in the coming years by the application of AI-enabled systems and networks to the practice of law.

Regulations Proposed by NY Department of Financial Services are a Significant Development for Regulated Entities … and Everyone Else 0

Regulations Proposed by NY Department of Financial Services are a Significant Development for Regulated Entities … and Everyone Else

On September 13, 2016, New York Governor Andrew M. Cuomo announced new first-in-the-nation proposed regulations to protect against the ever growing threat of cyber-attacks in the financial services industry. The proposed regulations, to be enforced by the New York State Department of Financial Services, would apply only to an entity regulated by the NY Department of Financial Services – from a multi-national bank to a “mom-and-pop” operation. However, the regulations are important for all companies to review and consider, regardless of their location or scope of operations, because the proposal represents an important step in the ongoing national dialogue about reasonable and necessary cybersecurity standards for all businesses.

Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad 0

Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad

A recent decision from the District of New Jersey granting a motion to compel arbitration not only reinforces the strong federal policy in favor of arbitration, but also highlights issues pertaining to company-issued devices and employees’ personal use of these devices. While employed by Anheuser-Busch, Victor Nascimento received a company-issued iPad. Nascimento and other employees exchanged text messages about a coworker over their personal cell phones outside of the work day, but the messages were received on Nascimento’s company-issued iPad because the iTunes account on his iPad was linked to his personal cell phone.

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.”

New “Privacy Shield” Agreement Seeks to Resurrect a Safe Harbor for EU-U.S. Data Transfers – Can it Succeed? 0

New “Privacy Shield” Agreement Seeks to Resurrect a Safe Harbor for EU-U.S. Data Transfers – Can it Succeed?

On February 2, 2016, 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. It was appropriate that the announcement came on Groundhog Day, because we have been here before.