Gibbons Law Alert

Gibbons Law Alert

Tagged: Case Summaries

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.

E-Discovery Year-in-Review 2014: Panel at Gibbons Eighth Annual E-Discovery Conference Discusses Recent Developments, Issues, and Trends

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Posted in Technology Developments and Issues

On January 12, 2015

On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.

Adverse Inference Instruction Warranted For Insurer’s Breach of Retention Policy

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 7, 2014

It should come as no surprise that litigants continue to ignore such basic discovery obligations as the duty to preserve potentially relevant documents once litigation is reasonably anticipated. A recent case out of the Northern District of New York exemplifies the importance of patience in establishing a record of discovery abuses, including data deletion, before seeking sanctions to address such situations.

Takeda Part One: Prelude To Disaster? — Takeda Can’t Narrow Its Broadly-Written Litigation Hold

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Posted in E-Discovery: Legal Decisions and Court Rules / Pharmaceuticals

On April 14, 2014

An opinion from Judge Rebecca Doherty in In re Actos (Pioglitazone) Products Liability Litigation, MDL No. 11-2299, provides valuable lessons on the consequences of drafting overly-broad litigation hold notices, as well as the importance of providing evidence from knowledgeable witnesses in defense of document retention procedures.

Somebody’s Watching You — New York Court of Appeals Says State Can Place GPS Device on Employee’s Car, But Can Only Collect Data During Work Hours

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 17, 2013

In its recent 4-3 decision in Cunningham v. New York State Department of Labor, the New York Court of Appeals added to the growing body of case law addressing the constitutional implications of global positioning system (GPS) technology. In Cunningham, the Court found that the Department of Labor’s attaching of a GPS device to an employee’s personal car that was used for work purposes fell within the “workplace exception” to the warrant requirement, however, the search as conducted was unreasonable because the car’s location was tracked in the evenings, on weekends, and while the employee was on vacation. Interestingly, the Court suppressed all of the evidence collected by the GPS device, not just the data collected during non-work hours, citing the “extraordinary capacity” of GPS devices to permit “constant, relentless tracking of anything.”

Court Denies Direct Access to Computer, Phones, and Email Account Absent a Finding of Improper Conduct or Non-Compliance With Discovery Rules

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 9, 2013

In a recent decision in Carolina Bedding Direct, LLC v. Downen, United States Magistrate Judge Monte C. Richardson shed light on the limitations placed on discovery by Federal Rule of Civil Procedure 26 and the circumstances under which a requesting party will be denied wholesale access to a responding party’s computer, cell phone, and email account. The decision also reinforces that courts are unlikely to question a responding party’s certification of compliance with discovery requests absent a real showing of improper conduct, even if it is shown that the responding party failed to produce its own email and text messages that were later produced by another party.

Show Your Work: Google Ordered to Produce Search Terms and Custodians Used When Responding to Apple’s Subpoena

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 23, 2013

In a recent order in Apple Inc. v. Samsung Electronics Co. Ltd., et al., United States Magistrate Judge Paul S. Grewal reinforced the importance of cooperation and transparency in the discovery process, especially when it involves electronically stored information. The order granted Apple’s motion to compel Google, a non-party, to produce the search terms and list of custodians Google used when responding to Apple’s subpoena. Judge Grewal’s order is significant because it underscores that a responding party, whether or not a party to the litigation, should be prepared to disclose the methodology it used to identify and collect electronically stored information in response to a discovery request.

“Persnickety, Persistent” Questions: The Stored Communications Act

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Posted in E-Discovery: Legal Decisions and Court Rules

On April 1, 2013

The Stored Communications Act (“SCA”) prohibits internet service providers from disclosing the “content” of electronic communications. What constitutes “content” of an electronic communication? It may be easier to rephrase the question: What doesn’t constitute content? According to the U.S. District Court for the Northern District of California, the answer is: very little.

“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.”

New Jersey District Judge Upholds Sanctions for Camden County’s Grossly Negligent Litigation Hold Procedures

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 6, 2012

On March 21, 2012, New Jersey District Judge Noel Hillman upheld Magistrate Judge Ann Marie Donio’s ruling against Camden County, New Jersey (the “County”) for spoliation of evidence in an insurance dispute arising out of injuries to a motorist on a county road. State National Insurance Co. v. County of Camden, 08-cv-5128 (D.N.J. March 21, 2012). Judge Hillman’s March 21, 2012, decision addresses the County’s appeal of a June 30, 2011, decision of Judge Donio granting State National Insurance Company’s (“State National”) motion regarding the County’s failure to preserve electronically stored information (“ESI”). Specifically, the County failed to institute a litigation hold, to disable its automatic email deletion program, and to preserve copies of its backup tapes after litigation was commenced.

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