Gibbons Law Alert

Gibbons Law Alert

Author: Paul A. Saso

Inadvertently Produced Privileged Material May Generally Be Used for Purpose of Challenging Assertion of Privilege

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

On June 25, 2019

A New York federal court has recently held that inadvertently produced privileged documents may be used by the receiving party for the limited purpose of challenging the claim of privilege to the extent that the receiving party became aware of the contents of those documents prior to the assertion of the privilege over those documents. In re Keurig Green Mt. Single Serve Coffee Antitrust Litig. In that case, the parties had entered into a stipulated protective order with a Federal Rule of Evidence 502(d) clawback provision, but the parties relied on two different provisions of the same order to support their arguments concerning whether the privileged document could be relied upon in challenging the claim of privilege. The order stated that “[i]f a party has inadvertently or mistakenly produced Privileged Material, and if the party makes a written request for the return, … the receiving party will also make no use of the information contained in the Privileged Material … regardless of whether the receiving party disputes the claim of privilege.” However, the order also stated that “[t]he receiving party may not use the Privileged Material … for any purpose whatsoever other than moving the Court for an order compelling production of the Privileged Material…” The Court relied on two prior decisions, both authored by...

NY Commercial Division Promotes Technology Assisted Review

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

On August 1, 2018

On July 19, 2018, the Chief Administrative Judge of the Courts issued an administrative order adopting a new rule for the New York Commercial Division supporting the use of technology-assisted document review. Based on a recommendation and proposal by the Subcommittee on Procedural Rules to Promote Efficient Case Resolution, Commercial Division Rule 11-e has been amended to state: The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production. The Subcommittee noted that document review “consumes an average of 73% of the total cost of document production in cases involving electronic discovery.” With that in mind, the Court adopted a rule meant to streamline and make electronic discovery more efficient in large, complex and e-discovery-intensive cases. The use of technology-assisted review is still optional. It should be considered on a case-by-case basis and the parties are encouraged to confer about its potential use....

“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

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

On July 3, 2018

The New York Court of Appeals unanimously ruled in Forman v. Henkin that “private” Facebook posts (i.e., those accessible only to your Facebook “friends,” as opposed to the general public) are discoverable if they meet the common discovery standard—that they are “material and necessary to the prosecution or defense of an action.” In Forman, plaintiff alleged she was severely injured when she fell from defendant’s horse. Plaintiff alleged her injuries impaired her ability to communicate and participate in what she described as the active lifestyle she enjoyed before the accident. Plaintiff alleged she posted on Facebook many photographs that depicted her pre-accident lifestyle, but that communicating on that social media platform had become so difficult after the accident that she deactivated the account six months later. She alleged that, after her accident, it would take hours to write a message on Facebook because she would have to re-read it several times before sending it to be sure that it made sense. Defendant requested an unlimited authorization to obtain plaintiff’s “private” Facebook account postings, arguing they would be relevant to plaintiff’s claims. The Supreme Court ordered plaintiff to produce all photographs (that were not of a romantic or sexual nature) and an authorization that would allow defendant to obtain from Facebook the frequency of plaintiff’s Facebook posts,...

N.Y. Court Grants Spoliation Sanctions for Destruction of Documents Decades Ago

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 11, 2016

In Warren v. Amchem Products, Inc., Justice Peter Moulton sanctioned defendant J-M Manufacturing Company for destroying documents in 1990 and 1997 – 24 years and 17 years, respectively, before the Warren Estate filed suit against asbestos manufacturers in 2014. The Court granted plaintiff’s motion for spoliation sanctions and ordered that, should the case proceed to trial, the jury will be instructed that it may infer that the destroyed documents would have supported plaintiff’s claims and would not have supported J-M’s defenses.

Tweets Contradict Court Filings, Leading to Judgment of Conviction and Appeal

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2014

We have been covering a case pending in the Criminal Court of the State of New York in which the State sought discovery and use of a criminal defendant’s tweets for use in his trial. Malcolm Harris was accused of disorderly conduct when he and others allegedly marched on to the Brooklyn Bridge during an Occupy Wall Street protest. For nearly a year, Harris argued in court papers that he was not guilty because the N.Y.P.D. had allegedly led the protestors onto the roadway of the Brooklyn Bridge as the protest swelled.

Negligent Spoliation May Result in Sanctions Under New York Law

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2014

Recently, the New York Supreme Court, Appellate Division, First Department considered whether to adopt and apply the Zubulake standard for the spoliation of electronically-stored information (“ESI”) to a claim for spoliation of an audiotape recording or whether existing New York spoliation doctrine was sufficient. Strong v. City of New York involved a June 30, 2009, accident in which an NYPD vehicle collided with another vehicle, jumped the sidewalk curb and struck five pedestrians, including plaintiff, Kevin Strong. Within 30 days of the accident, three plaintiffs commenced personal injury actions and these were consolidated for trial. On September 21, 2009, less than 90 days after the accident, the City joined issue and interposed the “emergency operation” defense, claiming the police officer’s vehicle was an authorized emergency vehicle engaged in an emergency operation at the time of the accident and, therefore, the City could only be held liable if the officer had acted with reckless disregard for the safety of others.

New York State Courts Look to Adopt Rules Requiring Parties to Discuss E-Discovery at the Outset of Litigation

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 31, 2013

The E-Discovery Working Group has recommended changes to the New York State Court rules concerning e-discovery that would significantly expand litigants’ obligations to confer concerning anticipated e-discovery issues. Currently, only the rules that govern cases pending before the Commercial Division require that parties confer about expected e-discovery issues at the outset of a litigation. (See Section 202.70 Rule 8 of the Uniform Rules). The E-Discovery Working Group has not only recommended that this rule be expanded to include all New York State Courts, but also to provide specific guidance concerning what e-discovery issues ought to be discussed by the parties. These issues include identifying potentially relevant categories of data and relevant computer servers, implementing measures to preserve relevant information, agreeing to procedures for parties to recall any privileged information that they provide by accident and discussing the likely cost and allocation of e-discovery between the parties.

Harris Running Out of Options: Judge Has Tweets and May Conduct In Camera Review

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 3, 2012

We previously reported on the First Appellate Department’s refusal to stay Judge Sciarrino’s order that Twitter turnover criminal defendant, Malcolm Harris’s tweets, which will allegedly contradict his defense in a criminal action. Facing the threat of a contempt order, Twitter produced to Judge Sciarrino the tweets in question on September 14. However, Harris previously brought an Article 78 proceeding against Judge Sciarrino (In the Matter of Harris v. Sciarrino, Index No. 103569/12) and filed a motion seeking a stay of Judge Sciarrino’s order that the tweets be produced to Judge Sciarrino for in camera review before production to the District Attorney. On September 27, 2012, Judge Huff denied Harris’s motion to stay enforcement of Judge Sciarrino’s order pending the resolution of the Article 78 proceeding. Although Harris argued pursuant to CPLR 7803 that Judge Sciarrino had acted outside of his jurisdiction, the District Attorney successfully countered that criminal defendants may not “interrupt their prosecutions to launch what is in essence a pre-conviction collateral attack using Article 78 as a vehicle.” Stay tuned for further updates….

“Trust me, I know what I’m doing!” – Court Outlines Perils of Custodian Self-Collection and Inadequate Keyword Searches

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 21, 2012

In a recent ruling, United States Southern District Judge and e-discovery authority Shira Scheindlin, of Zubulake and Pension Committee fame, held that various government agencies had failed to adequately design searches for responsive electronically-stored information. While the case, National Day Laborer Org. Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. LEXIS 97863 (S.D.N.Y. July 13, 2012), deals largely with searches in the context of the Freedom of Information Act (“FOIA”), Judge Scheindlin noted “much of the logic behind . . . e-discovery searches is instructive in the FOIA search context because it educates litigants and the courts about the types of searches that are or are not likely to uncover all responsive documents.”

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