Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

“Accidentally” Destroying Years of Text Messages Is No Defense to Spoliation Sanctions

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Posted in General Litigation

On March 1, 2021

The New York Supreme Court recently granted a defendant spoliation sanctions, in the form of an adverse inference instruction, against the plaintiff for the “accidental” destruction of years’ worth of text messages from the plaintiff’s cellphones. In Iacovacci v. Brevet Holdings, LLC, the plaintiff was terminated from his employment with the defendants in October 2016, through a letter that referred to “possible litigation” and requested that the plaintiff “preserve … electronically stored information (‘ESI’) relating” to the defendant’s business, “includ[ing] all emails, text messages, … and the like, … [including] material on a phone.” Several days after receiving the termination letter, the plaintiff filed a wrongful termination and breach of contract action, and the defendants filed an answer with counterclaims alleging misappropriation of the defendants’ documents, breach of fiduciary duty, and self-dealing. Thereafter, a years-long discovery dispute ensued. The defendants served several requests for documents, including text messages, but the plaintiff objected to the demands as irrelevant and overbroad, and in March 2018, the plaintiff filed a motion for a protective order. In May 2018, the court ordered the plaintiff to produce cellphone and electronic calendar records as requested by the defendants, and at a status conference in December 2018, the court, again, directed the plaintiff to produce the text messages within 30 days. Finally,...

Litigating at the Intersection of Cooperation and Sedona Principle 6

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 9, 2021

The terms “cooperation” and “transparency” continue to gain traction in the context of litigation discovery, and the emergence of these concepts has been accompanied by a gradual erosion of a party’s ability to respond to discovery with autonomy. Litigants are often forced to make a decision as the expectation of cooperation in discovery intersects with the understanding that it is the responding party who will be in the best position to formulate a comprehensive discovery plan to search for, gather, and ultimately produce its own electronically stored information (ESI). This is based on the premise that the responding party is best situated to understand its own systems, the formats of communication used by employees, and the lingo used to discuss the subject matter of the dispute. The Sedona Conference Principle 6 recognizes that a responding party is in the best position to select relevant technology to appropriately gather and produce relevant information. On the other hand, the Sedona Conference Cooperation Proclamation, the 2016 Amendments to the Federal Rules of Civil Procedure, and countless judicial decisions extoll the benefits of cooperation. The intersection of Sedona Conference Principle 6 with the concepts of “cooperation” and “transparency” has been on full display in several recent decisions involving attempts by a requesting party to force a responding party to...

Second District Court to Dismiss Claims Based on Unconstitutional Statute Provision

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Posted in Class Action Defense

On January 22, 2021

In Lindenbaum v. Realgy, the United States District Court for the Northern District of Ohio dismissed the plaintiff’s “robo-call” class action under the Telephone Consumer Protection Act (TCPA), based on the Supreme Court’s 2020 holding that a statutory exception for automated calls to collect government debts was unconstitutional. Because the statute was unconstitutional at the time of the alleged violations, the district court determined that it lacked subject matter jurisdiction and dismissed the lawsuit. Originally enacted in 1991, the TCPA restricts almost all prerecorded sales calls to cell phones. In 2015, Congress amended the provision to allow prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). The 2015 provision was struck down in 2020 by the United States Supreme Court’s plurality decision in Barr v. American Association of Political Consultants, Inc. While the Supreme Court struck down the portion of the statute dealing with calls for government debt, it left the rest intact. In Lindenbaum, the plaintiff brought a class action lawsuit alleging violations of the TCPA. Specifically, the plaintiff alleged that she received two prerecorded calls, one to her cellphone and one to her landline, and had not provided express written consent to receive these calls. The plaintiff argued that the severance of the...

NJDEP Continues Environmental Justice Rulemaking Process With Second Stakeholders Meeting

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Posted in Environmental and Green Issues

On January 15, 2021

As we previously reported, the New Jersey Department of Environmental Protection (NJDEP) has embarked on a robust process for soliciting public input on the regulations it will propose to implement in the state’s landmark environmental justice law, which was enacted last year (and which will not become effective until NJDEP promulgates its regulations). The first meeting was held remotely on October 22, 2020. The process goes well beyond the normal notice-and-comment rulemaking procedure and offers members of the public and the regulated community an unusually broad set of options for submitting their views to the NJDEP. Under the new statute, a company seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on its project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility will cause a disproportionate impact on the affected community. If NJDEP makes such a finding, it must deny the application if it seeks a new permit (unless the facility addresses a “compelling public interest” in the community) or impose extra conditions if the application seeks a permit renewal or...

District Court Denies Protective Order in Putative Class Action: Production of Relevant ESI May Be Time Consuming and Expensive, But Not Unduly Burdensome

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Posted in General Litigation

On December 17, 2020

The District Court for the Eastern District of California recently denied a defendant’s motion for a protective order in a putative class action, finding that the information requested by plaintiff was relevant and subject to pre-certification discovery, and that defendant did not show that the electronically stored information (ESI) was inaccessible due to undue burden or cost, pursuant to Rule 26(b)(2)(C). Additionally, the court determined that even if defendant could show that the ESI was “inaccessible,” plaintiff demonstrated “good cause” to order production of the ESI notwithstanding the potential burden and cost. In Sung Gon Kang v. Credit Bureau Connection Inc., plaintiff, a consumer, filed a putative class action alleging that defendant provided businesses with inaccurate consumer credit information, including that plaintiff and the proposed class of consumers were included on the United States Treasury Department’s Office of Foreign Assets Control (OFAC) list. A consumer is ineligible for credit in the United States if he or she is included on the list. Plaintiff sought to “represent classes consisting of individuals ‘about whom Defendant … sold a consumer report to a third party’ that included an OFAC Hit.” The discovery dispute centered on defendant’s objections to plaintiff’s first set of written discovery requests. Specifically, defendant objected to requests seeking the identities of individuals who had an...

Roll-Out of COVID-19 Vaccines in New Jersey

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Posted in State Legislation

On December 15, 2020

Pharmaceutical innovation has positioned the world to witness the beginning of the largest vaccination effort that humankind has ever seen. Vaccine doses for COVID-19 are arriving in New Jersey this week, and the first doses will be injected in the arms of frontline healthcare workers and seniors by the close of business today in Newark’s largest hospital. More important than today’s historic event, the current New Jersey plan to vaccinate 70 percent of the Garden State’s current eligible population is worth reviewing. As the COVID-19 vaccines roll out, New Jersey plans to follow the Phased Approach framework crafted by the Centers for Disease Control and Prevention (CDC). Under the CDC’s framework, the initial wave of vaccines will be administered first to healthcare personnel. More specifically, Phase 1A of New Jersey’s COVID-19 vaccination plan will include “any paid or unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials and are unable to work from home.” Examples of workers within healthcare settings who are eligible to receive COVID-19 vaccinations during Phase 1A include, but are not limited to: Licensed healthcare professionals, such as doctors, nurses, pharmacists, and dentists; Healthcare staff, including receptionists, janitors, clergy, mortuary services, and laboratory technicians; Consultants and per diem contractors who are...

The Destruction of a “Startling Amount of Discovery”: District Court Imposes Severe, Case-Ending Sanctions Pursuant to Rule 37(e)(2)

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Posted in General Litigation

On November 18, 2020

The United States District Court for the Eastern District of Washington recently entered a default judgment order of terminating sanctions against defendants pursuant to Rule 37(e)(2), as a result of defendants’ wholesale destruction of a “startling amount of discovery” as part of defendants’ adoption of a document disposition program during the course of the litigation. The district court found that the defendants “purposefully destroyed” relevant electronically stored information (ESI) “to avoid their litigation obligations.” This decision highlights the importance of extreme caution in the adoption of a document disposition or information governance program, which necessarily eliminates typically large quantities of ESI, during the time period when the duty to preserve relevant ESI has been triggered. In Moreno v. Correctional Healthcare Companies, Inc., plaintiffs filed constitutional claims against defendants–providers of healthcare services to inmates–after plaintiffs’ eighteen-year-old son died while in defendants’ custody. In January 2018, prior to filing the lawsuit, plaintiffs sent a letter to defendants notifying defendants of their plan to file a lawsuit and advising defendants to “preserve all paper and electronic records that may be relevant to our clients’ claims” including “all e-mails and other electronic and paper records regardless of where they are maintained.” Plaintiffs filed the lawsuit in October 2018 and, in December 2018, served discovery requests on defendants, seeking certain categories...

Gibbons Attains National and Regional Rankings in 2021 Best Law Firms

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Posted in Firm News

On November 5, 2020

Gibbons is proud to announce that 35 of the firm’s practice areas have achieved national and metropolitan recognition in the 2021 edition of U.S. News – Best Lawyers® “Best Law Firms.” The firm also earned numerous national rankings this year, placing in the second two national tiers in the categories of: Construction Law Employment Law – Management Land Use & Zoning Law Litigation – First Amendment Real Estate Law We also earned our highest number of National Tier 1 rankings ever, in the categories of: Environmental Law Litigation – Construction Mass Tort Litigation/Class Actions – Defendants “Gibbons continues to evolve and adapt our legal services to anticipate the future needs of our clients,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “The recognition of our practice areas on both the national and regional levels reaffirms that excellent client service and legal work are firm-wide commitments.” The firm’s regional practice area rankings include: New Jersey Regional Rankings Appellate Practice Banking and Finance Law Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law Bet-the-Company Litigation Commercial Litigation Construction Law Corporate Law Corporate Compliance Law Criminal Defense – White Collar Employee Benefits (ERISA) Law Employment Law – Management Environmental Law First Amendment Law Government Relations Practice Health Care Law Insurance Law Land Use & Zoning Law...

William Hatfield to Participate in Upcoming Strafford Webinar – “Practical Tips and Lessons Learned for Asserting Divisibility in CERCLA Litigation in Federal Court” – November 19

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Posted in Environmental and Green Issues

On November 3, 2020

William S. Hatfield, a Director in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by Strafford. The panel, “Practical Tips and Lessons Learned for Asserting Divisibility in CERCLA Litigation in Federal Court,” will take place virtually on Thursday, November 19 from 1:00 – 2:30 pm ET. The panel will analyze how recent court decisions have addressed divisibility and apportionment in CERCLA litigation. Panelists will also guide environmental counsel and professionals on when and how the divisibility of harm defense is appropriate, offer practical tips, and discuss the legal and technical challenges in establishing divisibility. The discussion will be interactive, allowing for questions and answers, and CLE credits will be offered. For additional information or to register, click here.

NJDEP Solicits Input as It Begins Process of Drafting Regulations to Implement Landmark Environmental Justice Legislation

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Posted in Environmental and Green Issues

On October 27, 2020

As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.) Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility...

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