Gibbons Law Alert

Gibbons Law Alert

Category: E-Discovery: Legal Decisions and Court Rules

Bill to Expand Data Breach Notification Requirements Passes New Jersey Assembly

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Posted in E-Discovery: Legal Decisions and Court Rules / General Litigation / Privacy and Data Security

On January 28, 2015

On December 15, 2014, the New Jersey Assembly voted 75-to-0 to advance a bill that would expand the existing data breach notification requirements for companies doing business in the state. The bill, A3146, would broaden the type of information that, if compromised, would trigger a company’s obligation to notify customers of the breach. The proposal now heads to the Senate, where a similar bill, S2188, has been pending in the Commerce Committee since June.

Software License Cannot Be Used as a “Shield” Against Production

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 26, 2015

In Pero v. Norfolk Southern Railway, Co., No. 14-cv-16 (E.D. Tenn. Dec. 1, 2014), the United States District Court for the Eastern District of Tennessee concluded that a party cannot use a video software license to block a party from obtaining relevant evidence. Pero, an employee of Norfolk, sued after he was injured while operating a locomotive. The train was equipped with a camera and recorded the events leading to Pero’s injuries. Pero moved to compel production of the video, which could only be viewed using a proprietary software program. Norfolk moved for a protective order, arguing that providing a copy of the video would exceed the scope of its software license. Norfolk took the position that Pero had to pay $500 to purchase his own license or Pero could view the video in Norfolk’s counsel’s office.

#Do-Not-Disclose — Twitter Sues Government Alleging Free Speech Violation

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 9, 2014

Twitter’s ubiquitous 140-character-or-less tweets are not, the company argues, sufficiently similar to email or other forms of stored electronic information to warrant lumping them together with the likes of Google, Microsoft, Facebook, Yahoo!, or Apple, all of which have agreed to restrictive limitations on their public reporting of government surveillance. Twitter has sued the U.S. Government in federal court in California to make its point.

Rule Amendments Update: Judicial Conference Approves Proposed Changes

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 25, 2014

On September 16, 2014, the Judicial Conference approved, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments and the approval process, see our previous blog posts from June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013.) The proposed amendments, which include changes to the definition of the scope of discovery in Rule 26(b)(1) and the applicable standard courts should apply when considering sanctions for ESI spoliation under Rule 37(e), will now be submitted to the U.S. Supreme Court for consideration and approval. If adopted by the Supreme Court before May 1, 2015, and Congress does not intervene, the proposed amendments will take effect on December 1, 2015.

Attempting to Shoot for the Moon and Settle For the Stars During the Meet and Confer Process May Result in Obtaining Neither

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 8, 2014

A recent decision out of the Northern District of California provides a sobering reminder that a party’s obligation to meet and confer must be undertaken in good faith. If a party is overly aggressive – and therefore perceived not to be acting in good faith – it may wind up with nothing. Boston Scientific Corporation v. Lee, was a fairly typical case involving a former employee’s alleged theft of trade secrets. Defendant Dongchul Lee (Lee) left Plaintiff Boston Scientific Corp. (Boston) and began working for a competitor, nonparty Nevro Corp. (Nevro). Shortly thereafter, Boston sued Lee, claiming theft of trade secrets and violation of a confidentiality agreement.

Rule Amendments Update: Standing Committee Approves Proposed Changes

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Posted in E-Discovery: Legal Decisions and Court Rules

On June 19, 2014

On May 29-30, 2014, the Judicial Conference’s Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) met and approved the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from May 27, 2014, February 10, 2014, and May 6, 2013.) The Standing Committee approved the entire slate of proposed amendments, including changes to the scope of discovery, as defined in Rule 26(b)(1), and changes to the standard to be applied by courts when imposing curative measures or sanctions for the spoliation of electronically stored information, as per Rule 37(e). Before approving the proposed amendments, the Standing Committee made several minor revisions, including changes to the proposed Committee Notes to Rules 26 and 37 (the meeting minutes setting forth the precise changes were not available as of writing). The Agenda Book from the Standing Committee’s meeting is available.

ABA Says that Attorneys May Investigate Jurors’ Social Media Presence, Even if Automatic Notifications are Generated

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Posted in E-Discovery: Legal Decisions and Court Rules

On June 11, 2014

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently weighed in on the ethical parameters of attorneys’ investigation of jurors’ social media presence. In ABA Formal Opinion 466, the Committee concluded that an attorney may review a juror’s social media presence; an attorney may undertake that review even if the social media website issues a notice to the juror that the attorney viewed his social media profile; and an attorney may not request private access to a juror’s social media profile.

Appellate Division Says Adverse Inference Inappropriate Where Records Were Ultimately Produced

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Posted in E-Discovery: Legal Decisions and Court Rules

On June 2, 2014

In a recent decision, the New Jersey Appellate Division held that a trial court’s adverse inference instruction for e-discovery misconduct was an unreasonably harsh penalty where the electronically stored information (ESI) was eventually produced. The Appellate Division’s opinion in Liberty Mutual Insurance Co. v. Viking Industrial Security, Inc. illustrates and reaffirms the principle that discovery sanctions must be just and reasonable, and proportional to the prejudice caused to an adversary, regardless of bad faith or willfulness of the misconduct.

Exploration of Sophisticated Cloud Computing Abilities Unnecessary When Responding to Discovery Demands

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 29, 2014

A new decision out of the District of New Jersey holds that a company need not utilize its cloud-based comprehensive document search tools absent evidence that its standard custodian-based approach to data collection was deficient. In Koninklijke Philips v. Hunt Control Systems, a multi-billion dollar trademark dispute, defendant Hunt Control Systems, Inc. (“Hunt”) served plaintiff Koninklijke Philips N.V. (“Philips”) with discovery demands that included requests for production of electronically stored information (“ESI”). To prepare its response, Philips requested information from eight specific employees.

Rule Amendments Update: Advisory Committee Approves Proposed Changes, But Not Before Rewriting Rule 37(e)

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 27, 2014

Like many, we’ve been following closely the process to amend the Federal Rules of Civil Procedure. (See our previous blog posts from May 6, 2013 and February 10, 2014.) Last month, the Advisory Committee on Rules of Civil Procedure took the next step in that process by approving the proposed amendments and submitting them to the Standing Committee on Rules of Practice and Procedure for its review and possible approval. But before doing so, the Advisory Committee took the particularly noteworthy step of completely rewriting the proposed amendment to Rule 37(e).

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