Tagged: Discovery

Corporate Counsel Is Not Your Counsel: Communications Between Shareholders and Corporation Counsel Are Not Necessarily Privileged

You founded, own, and run your company. So, it is natural to assume that your company’s lawyer is your lawyer, right? While the assumption may be natural, the courts are firm in differentiating an attorney’s responsibilities to a corporation versus an individual shareholder. One who disregards this distinction may find that communications believed to be confidential and privileged are subject to discovery in later litigation. “A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents.” NJRPC 1.13(a). Shareholders of a closely held corporation are no exception to this rule and are not entitled to any presumption of privilege distinct from the corporate entity. The New Jersey Appellate Division recently emphasized this point in Royzenshteyn v. Pathak, where two shareholder-owners of a closely held corporation unsuccessfully appealed a trial court order that compelled production of allegedly privileged communications between the plaintiffs and corporate counsel. In Royzenshteyn, the plaintiffs retained corporate counsel for a transaction that transferred majority ownership of their corporation to the defendants. That transaction was completed in 2015. Soon thereafter, the parties’ relationship soured, and, in 2018, the plaintiffs retained new counsel to file a lawsuit that challenged the 2015 transaction. During discovery, the plaintiffs asserted attorney-client privilege over communications...

New Jersey Enacts Anti-SLAPP Legislation

Lawsuits filed to intimidate or punish those who are engaged in constitutionally protected activity by, in effect, suing them into submission or silence through the prospect of expensive and time-consuming litigation are commonly referred to as strategic lawsuits against public participation (SLAPP). On September 7, 2023, Governor Murphy signed New Jersey’s first anti-SLAPP legislation, which is designed to thwart such lawsuits by providing a process for early dismissal of these suits and an award of costs and counsel fees to a prevailing moving party. New Jersey now joins 32 other states that have enacted some form of anti-SLAPP legislation. The legislation applies to a civil cause of action against a person based on the person’s: (1) communications during a legislative, executive, judicial, administrative, or other governmental proceeding; (2) communications on an issue under consideration or review by such a body; or (3) engagement in any other activity that is protected by the First Amendment freedoms guaranteed by the United States Constitution or New Jersey Constitution and that relates to a matter of public concern. Modeled after the Uniform Public Expression Protection Act (UPEPA), the New Jersey legislation: permits a SLAPP defendant to file an early application for an order to show cause to dismiss the cause of action in whole or in part establishes a...

An Anti-SLAPP Bill That Packs a Powerful Punch

Strategic lawsuits against public participation (SLAPP) are lawsuits intended to intimidate or punish those engaged in constitutionally protected activity by, essentially, suing them into submission or silence through the prospect of costly and time-consuming litigation. Thirty-two states have enacted some form of anti-SLAPP legislation designed to weed out these cases and, in most instances, provide for dismissal of such actions early in the process. New Jersey is not one of those states. That may soon change. State Senate Bill S2802, the Uniform Public Expression Protection Act (the “Act”), and its Assembly counterpart, A4393, were introduced in June 2022 and provide an expedited process for dismissal of SLAPP actions. The legislation is modeled after the Uniform Public Expression Protection Act (UPEPA) drafted by the National Conference of Commissioners on Uniform State Laws and approved and recommended by it in 2020 for enactment in all states. The Act would apply to a civil cause of action against a person based on the person’s (1) communications during a legislative, executive, judicial, administrative, or other governmental proceeding; (2) communications on an issue under consideration or review by such a body; or (3) engagement in any other activity that is protected by the First Amendment freedoms guaranteed by the United State Constitution or New Jersey Constitution and that relates to...

Sharing Communication with Public Relations Firm Destroys Privilege

The Southern District of New York recently held that sharing attorney-client privileged communications with a public relations firm destroys that privilege. Universal Standard brought a trademark infringement and unfair competition suit against Target. During the course of discovery, documents were produced consisting of emails between Universal Standard, its outside counsel, and BrandLink, a public relations firm. When Universal Standard sought to claw back the documents because they were privileged, Target refused. The court considered whether the fact that emails between Universal Standard and its counsel were also shared with BrandLink should result in a waiver, or whether the communications fall under one of several possible exceptions to the general rule that “disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed.” First, the court considered whether BrandLink was “essential to allow communications between the attorney and the client, such as an interpreter or accountant.” This exception applies where the third party enables counsel to understand aspects of the client’s own communications that could not otherwise be appreciated, but not where the communications are merely important to the attorney’s ability to represent the client. Here, the emails involved discussions regarding a public relations strategy surrounding the filing of the lawsuit and whether to issue...

New Jersey Supreme Court Approves Special Rules for Matters in the Complex Business Litigation Program

On January 1, 2015, the New Jersey Superior Court implemented statewide the Complex Business Litigation Program (“CBLP”) for complex commercial and construction cases with amounts in controversy exceeding $200,000. Each case in the CBLP is managed by a single judge assigned in each county to handle cases in the program, thus providing each case with individualized case management and a jurist experienced in managing and resolving similar matters. On July 27, 2018, the New Jersey Supreme Court adopted special rules for cases in the CBLP to take effect on September 1, 2018. The current rules in Parts I and IV will continue to apply to CBLP cases, unless contradicted by a new rule. The new rules, largely adapted from rules in the federal courts and other business courts, mainly modify certain aspects of case management, discovery, and motion practice. The more substantial practice changes prompted by the new rules are: Initial Disclosures: Following the federal courts’ innovation of requiring mandatory disclosures, litigants in the CBLP will be required to disclose early in the case: 1) all individuals with knowledge of information that the disclosing party may use to support its claims or defenses, 2) copies or a description of (including the location of) all documents, electronic data, or tangible things that the party may use...

New Jersey Appellate Panel Upholds Pre-Discovery Dismissal of Weak Class Action Claims

In Myska, et al. v. New Jersey Manufacturers Insurance Co. et al., New Jersey’s Appellate Division recently upheld a pre-discovery striking of a complaint’s class allegations and dismissal of its Consumer Fraud Act claims because the complaint, the underlying policies, and other documents referenced by the complaint showed that class treatment was not warranted and that the plaintiffs could not prevail on their Consumer Fraud Act claims.

New Jersey Supreme Court Formally Adopts and Defines the Scope and Application of the Common Interest Rule

In a matter of first impression, the New Jersey Supreme Court in O’Boyle v. Borough of Longport expressly adopted the common interest rule in New Jersey as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders. Although previously addressed and analyzed by lower courts within New Jersey, the Court’s ruling clarifies the boundaries of the rule and offers guidance in resolving the scope of its application.

New Authority for Class Action Defendants Allowing Merits-First Bifurcated Discovery

The cost and burden of class action discovery often puts undue pressure on defendants to settle cases that have little or no merit. To relieve this pressure, courts sometimes permit bifurcated discovery, with the parties first addressing class certification issues and later, if warranted, merits issues. Recently, in Physicians Healthsource, Inc. v. Janssen Pharms., Inc., the District of New Jersey ordered bifurcated discovery but reversed the normal mechanics, limiting the first phase to merits issues before permitting any class discovery. The result is the same, though: potentially enormous time- and cost-savings. This strategy may be worth considering in cases where there are potentially dispositive merits issues.

In Refusing to Review Order Requiring Disclosure of Identities of Anonymous Internet Commentators, Pennsylvania Court Finds No Protectable First Amendment Interest in Maintaining Anonymity When One Comments Under Name of Real Person

In Amerisource Bergen Corporation v. John Does 1 and 2, the Superior Court of Pennsylvania recently held that two individuals who posted false and non-satirical comments to an online article under the name of an executive mentioned in the article had no protectable interest in their identities sufficient to invoke the collateral order doctrine and permit appellate review of a trial court order granting pre-complaint discovery of their identities, thus allowing an executive and his company to pursue claims against the posters for their unlawful appropriation of the executive’s name.

Delaware Court of Chancery Announces Rule Amendments and New “Must Read” E-Discovery Guidelines

Effective January 1, 2013, the Delaware Court of Chancery Rules 26 (General provisions concerning discovery), 30 (Depositions upon oral examination), 34 (Production of documents) and 45 (Subpoenas) were amended, consistent with similar amendments to the Federal Rules of Civil Procedure, to refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things” and explain how parties are to respond to requests for ESI.