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On May 26, 2011

Acknowledging the widespread use of electronic communications in commercial transactions, courts and legislatures have recognized e-mails as binding legal documents. The Appellate Division of the Supreme Court of New York recently reinforced this trend by holding that an e-mail from a real estate broker could satisfy the writing and subscription requirements of the New York statute of frauds. In Naldi v. Grunberg, the plaintiff sued the owner of a commercial property in Manhattan claiming that the owner breached the plaintiff’s right of first refusal when the owner sold the property to another buyer. The plaintiff had offered through his broker to purchase the property for $50 million. The owner’s broker responded three days later with an e-mail that included the following statements: Counteroffer: $52 million; DD: No due diligence period although complete unfettered access and first right of refusal on any legitimate, better offer during a 30 day period.

California Court Holds Employee’s E-mails To Counsel From Work Computer Are Not Privileged

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On March 2, 2011

Despite recent decisions from courts of last resort on State and federal levels, some jurisdictions are not extending full protection to otherwise privileged communications made through work-issued computers and PDAs. We last wrote on this issue after the New Jersey Supreme Court held that an employee did not waive the attorney-client privilege when using a company computer to communicate with her attorney via a personal password-protected e-mail account. Stengart v. Loving Care Agency. A short time later, in Quon v. Arch Wireless, the United States Supreme Court determined that the search of an employee’s text messages on a work-issued pager was reasonable and did not violate the employee’s Fourth Amendment rights. In the wake of these holdings, courts in other jurisdictions continue to make their own path through this new area of law. In Holmes v. Petrovich Development Company, LLC, the latest in the line of cases, the California Court of Appeals held that an employee’s e-mail communications with her attorney from her work computer did not constitute “‘a confidential communication between client and lawyer'” under Section 954 of the California Evidence Code.

Orbit One: Inadequate ESI Preservation Does Not Merit Sanctions Absent Evidence That Relevant Information Has Been Destroyed

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2011

Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010) represents a dichotomy in jurisprudence on ESI preservation efforts and the imposition of automatic sanctions. In Orbit One, Magistrate Judge James C. Francis, IV found that regardless of how inadequate a litigant’s preservation efforts may be, sanctions are not appropriate without proof that “information of significance” has been lost. The court determined that the threshold determination must be “whether any material that has been destroyed was likely relevant even for purposes of discovery.” In so holding, the court discussed and diverged from Judge Shira A. Scheindlin’s decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which earlier held that sanctions may be warranted for inadequate preservation efforts even if no relevant evidence is lost. 685 F. Supp.2d 456, 465 (S.D.N.Y. 2010).

Tagged: Email

Caveat E-Mailer: New York Court Holds E-Mail May Be Binding in Real Estate Transaction

California Court Holds Employee’s E-mails To Counsel From Work Computer Are Not Privileged

Orbit One: Inadequate ESI Preservation Does Not Merit Sanctions Absent Evidence That Relevant Information Has Been Destroyed

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