Gibbons Law Alert

Gibbons Law Alert

Tagged: Case Summaries

Judge Peck Stays Defendant’s ESI Production in da Silva Moore Pending Resolution of Several Motions

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Posted in E-Discovery: Legal Decisions and Court Rules

On June 5, 2012

If you’ve been following this blog, then you know that the Monique da Silva Moore, et al. v. Publicis Groupe SA and MSL Group case, in which Magistrate Judge Peck authored the first opinion approving the use of predictive coding, is very contentious. You can read our latest entries discussing this controversial case from March 2 and May 16. It appears there is no sign the tension will abate anytime soon.

Predictive Coding Upheld by District Court: Judge Carter Endorses Judge Peck’s Approval of Computer-Assisted ESI Review

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 16, 2012

On March 2, 2012, we reported on Magistrate Judge Andrew Peck’s February 24, 2012 decision in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. Feb. 24, 2012), wherein Judge Peck issued the first judicial opinion approving the use of predictive coding “in appropriate cases.” On April 25, 2012, District Judge Andrew L. Carter, Jr. rejected plaintiffs’ bid to overturn that decision, and cleared the way for the use of computer-assisted ESI review in this case and others.

Who’s Paying For This? First Department Requires the Producing Party to Initially Bear the Costs of Production in U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc.

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 26, 2012

For the second time this year, New York’s First Department, Appellate Division, has adopted e-discovery standards articulated in Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003). On January 31, 2012, the First Department’s decision in Voom H.D. Holdings LLC v. EchoStar Satellite LLC, 2012 N.Y. Slip Op. 00658 (1st Dep’t 2012) adopted the Zubulake standard concerning when a party’s preservation obligations are triggered. Read a blog posting on the Voom decision here. Most recently, on February 28, 2012 the First Department held in U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc., 2012 NY Slip Op. 01515 (1st Dep’t 2012), that, consistent with Voom’s “adopt[ion] [of] the standards articulated by [Zubulake] in the context of preservation and spoliation, [it was] persuaded that Zubulake should be the rule in this department, requiring the producing party to bear the cost of production to be modified by the IAS court in the exercise of its discretion on a proper motion by the producing party.”

Taking the Plunge: Judge Peck Issues First Decision Endorsing Computer-Assisted ESI

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 2, 2012

Late last year, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York, one of the most prominent judicial thought leaders in e-discovery, wrote an article entitled Search, Forward in which he opined that computer-assisted ESI review “should be used where it will help ‘secure the just, speedy and inexpensive’ (Fed. R. Civ. P. 1) determination of cases”, but he forecast that lawyers awaiting a judicial opinion endorsing predictive coding might have “a long wait.” As it turns out, the wait wasn’t very long at all; on Friday, February 24, 2012, less than 6 months after the publication of his article, Judge Peck himself issued the first judicial opinion approving the use of predictive coding “in appropriate cases.”

Hard Drive of a Key Non-Party Witness is Searchable in Response to Subpoena

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2012

A key non-party fact witness is fairly the target of a subpoena seeking production of ESI. In Wood v. Town of Warsaw, North Carolina, the United States District Court for the Eastern District of North Carolina held that ESI preserved on a former town manager’s personal computer must be made available for a search by a forensic expert in response to the Plaintiff’s subpoena.

Lester v. Allied Part 2: “Clean Up” of Compromising Social Media Evidence Can Result in Severe Sanctions

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 21, 2012

Though some practitioners might be in denial, the follow-up sanctions orders in Lester v. Allied Concrete Co. et al. dated May 27, 2011 and September 23, 2011 should leave no room for doubt that preservation of social media is as important as any other electronic data or discovery. Similarly, the penalty for intentionally destroying such evidence may reach beyond the purse strings.

Chief Judge Finds That Alteration of Facebook Page Can Lead to Spoliation Inference

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Posted in E-Discovery: Legal Decisions and Court Rules

On December 16, 2011

In a trademark infringement case involving two restaurants, Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al., Plaintiff sought a spoliation inference, alleging various discovery abuses involving several types of evidence including social media. Specifically, Plaintiff requested sanctions for the individual Defendant’s failure to preserve his Facebook pages in two different ways. Recognizing that Facebook users change their pages frequently given the nature of the media at issue, Chief Judge Brown of the District of New Jersey crafted a creative remedy, which was based in large part on the level of prejudice to Plaintiff.

In re Facebook Privacy Litigation – Uphill Battle for Plaintiffs

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Posted in E-Discovery: Legal Decisions and Court Rules

On December 8, 2011

In a recent case in California, Facebook account holders filed a putative class action lawsuit against Facebook, alleging that Facebook knowingly forwarded personal information to online advertisers without its users’ consent. In In re Facebook Privacy Litigation, Plantiffs asserted eight causes of action against Facebook, including violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. and various California laws (both statutory and common law), and all were dismissed.

Extended Access to Cell-Site Records Constitutes Fourth Amendment Search, Which Requires Showing of Probable Cause

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 17, 2011

Law enforcement must establish probable cause to obtain a suspect’s cell-site-location records according to a recent federal decision, In Re Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information. In that case, Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York ruled that a prosecutor’s application for access to a criminal defendant’s cell-site-location records pursuant to the Stored Communication Act (“SCA”) was insufficient to allow their release. Judge Garaufis determined that access to records revealing a criminal defendant’s movements over an extended period of time constitutes a “search” under the Fourth Amendment. Accordingly, such information can only be released upon a showing of probable cause and the issuance of a warrant.

The Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year’s Pivotal E-Discovery Case Decisions

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On November 16, 2011

The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.

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