Author: Stephen J. Finley, Jr.

Pennsylvania Supreme Court Protects Due Process Rights and Rejects “Jurisdiction by Consent”

On December 22, 2021, a unanimous Pennsylvania Supreme Court held in Robert Mallory v. Norfolk Southern Railway Company that a foreign corporation is not subject to personal jurisdiction in the Commonwealth of Pennsylvania solely because of its registration to do business there. The Mallory decision is an affirmation of the due process rights of non-Pennsylvania corporate defendants and significantly impacts who can permissibly be sued in the Commonwealth. Mallory, a resident of the Commonwealth of Virginia, filed suit in Pennsylvania seeking damages under the Federal Employers’ Liability Act against his former employer, Norfolk Southern, a Virginia corporation, for injuries allegedly sustained in the course of the plaintiff’s work in Virginia and Ohio. The sole basis for the exercise of personal jurisdiction was Norfolk Southern’s registration to do business in the Commonwealth of Pennsylvania. Pennsylvania’s business registration statute is unique in that the statute conditions registration upon a corporation’s “consent” to personal jurisdiction in Pennsylvania courts. Before Mallory, Pennsylvania state courts and many of Pennsylvania’s federal courts generally permitted the exercise of personal jurisdiction over foreign corporations based solely on their registering to do business in Pennsylvania. The appeal in Mallory required the Pennsylvania Supreme Court to consider whether Pennsylvania’s broad exercise of personal jurisdiction through its corporate registration statute comports with the demands of due...

Pennsylvania Supreme Court Adopts E-Discovery Amendments to Pennsylvania Rules of Civil Procedure

Effective August 1, 2012, Pennsylvania became the most recent state to adopt amendments to its Rules of Civil Procedure addressing the scope of, and limitations on, discovery of electronically-stored information. The amendments to the Pennsylvania Rules of Civil Procedure come more than six years after the Federal Rules of Civil Procedure were amended to address e-discovery. In that time, federal courts have developed a complicated body of law that has often confounded practitioners and jurists alike. Eschewing that complexity, Pennsylvania has essentially rejected much of the federal approach and adopted a more streamlined and “proportional” approach to e-discovery practice.

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

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.

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

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.

Courts Embrace Sua Sponte Imposition of Rule 502 Clawback Provisions

In 2008, Congress adopted Federal Rule of Evidence 502. FRE 502 was designed to promote discovery by providing litigants with a tool to control review costs in large-scale document or electronic evidence productions while avoiding the risk of wholesale subject matter waiver in cases of inadvertent production of privileged materials. Under Rule 502, where privileged material (or other information protected from disclosure) is inadvertently revealed, the disclosing party retains the privilege so long as it took reasonable steps both to prevent the disclosure and to rectify its mistake. Although it is still in its infancy, Rule 502 nonetheless appears to be living up to expectations. Indeed, as two recent federal decisions demonstrate, FRE 502 is not simply a tool available to litigants but rather, it is yet another weapon in a judge’s arsenal, permitting the court to manage discovery and protect privilege, through sua sponte entry of clawback orders.

Notes From the E-gallery: Live texts, tweets and postings by courtroom observers present new challenges

Courts frequently grapple with questions raised by the use of social media in the legal process. From the admissibility of social media to limitations on its use by jurors, courts are continuing to develop new tools and best practices to ensure the outcome of a case is not impacted by social media sites. While the issues raised by new social media technologies have primarily concerned those actually involved in a trial (i.e., the parties, their counsel, and members of the jury), that is beginning to change. Outside observers and news reporters are utilizing social media to report on trial happenings, sometimes in real-time.

Courts Rely Upon Jury Instructions to Discourage Juror Use of Social Media and Electronic Devices

The explosion of social media and the universal availability of electronic devices have presented a host of courtroom issues the judicial system must address, ranging from substantive legal questions like the admissibility of Facebook accounts and Twitter postings, to more ministerial issues such as the extent to which electronic devices may be utilized by counsel in the courtroom. While different courts have reached varied conclusions on these questions, courts have uniformly rejected any attempt by jurors to use technology to research a case or to post information about a case to social media sites, and increasingly use pre-trial and post-closing jury instructions.

Show Me The Evidence – Use of Social Media Information at Trial

A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be established — proof of authorship and timeliness. These evidentiary foundations are not easy to establish in the ever-changing medium of social media. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content difficult. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, recreating a post or a profile from a particular moment in time can be difficult, if not impossible, depending on how a partciluar site functions.

Federal Communications Commission to Move to the Cloud

In early 2011, the Federal Communications Commission will launch a new, updated website and become the first major federal agency to utilize cloud computing technology to completely support its principal web presence. By moving to cloud technology, the FCC hopes to give a boost to this increasingly popular technology and to improve the FCC’s technology platform. In announcing its move to cloud computing, the FCC’s Managing Director stated, “given that we oversee an industry that should lead this country in innovation, we want to lead the government in the things we do every day as well.” Terremark will manage the FCC’s transition to cloud computing.