Author: Jennifer A. Hradil

Third Circuit Adopts Later-Served Defendant Rule for Removal Petitions in Multi-Defendant Cases

On October 12, 2011, the Third Circuit weighed in on what it referred to as a “deep circuit split.” In Delalla v. Hanover Insurance, the Third Circuit joined a majority of the other circuit courts in adopting the “later-served defendant” rule for determining whether a removal petition is within the thirty-day limitation under 28 U.S.C. §1446(b).

Beware of Mutual Demand for Attorneys’ Fees in Arbitration Proceedings in Jurisdictions (Such as New York) Which Permit Award in the Absence of Statute or Agreement if Both Parties Demand Fees

It is well-known that, generally, an arbitrator may award attorneys’ fees where the award is authorized by statute or where the parties have agreed that the prevailing party is entitled to fees. Nonetheless, parties in an arbitration often include a demand for attorneys’ fees as a matter of course even where neither circumstance exists. Depending upon the jurisdiction, this practice may have a negative impact.

E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes

Even after a particular case has concluded, the risk of sanctions arising from e-discovery violations persists. Green v. Blitz U.S.A. was one of many products liability suits alleging injuries resulting from the defendant’s failure to equip its gas can with a “flame arrester.” Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices

In September 2010, the Third Circuit Court of Appeals became the first federal appeals court to rule on the question of whether the government is required to establish probable cause to obtain cell site location information (“CSLI”) from a cell phone provider. See In the Matter of the Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010). CSLI includes historical information that is collected by cell towers during cell phone calls, which can later be used to render some opinions as to the location of the cell phone during those calls.

The Sedona Conference’s Proportionality Guidelines Encourage Reasonable Limits on Scope of E-Discovery

The Sedona Conference’s most recent publication, Commentary on Proportionality in Electronic Discovery, sets forth six guidelines for assessing whether a discovery request or obligation should be limited because it is disproportionate to the likely benefit. The Sedona Conference noted that courts have often failed to apply the proportionality doctrine when warranted and that it is increasingly important for courts to do so given the volume and expense associated with discovery of ESI. The Federal Rules of Civil Procedure provide ample authority for, and in some instances mandate, the application of a proportionality analysis. See Rule 26(c), Rule 26(b)(2)(C), and Rule 26(g). The New Jersey Court Rules are closely modeled after the Federal Rules in this respect. See R. 4:10-2(g), 4:10-3.