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...
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.
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.
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.
One of the threshold – if not determinative – issues in many insurance coverage disputes is the number of “occurrences” that are presented by a particular set of facts relating to a claim submitted by the policyholder. In a recent decision, a New York appeals court has concluded not only that the relevant policy language allows for grouping of claims into similar “occurrences,” but that additional discovery may be conducted of the parties’ intent and the insurers’ underwriting guidelines and procedures relating to the relevant policy terms. In Mt. Kinley Ins. Co. v. Corning Inc., the Court affirmed the Trial Court’s denial of summary judgment, concluding that the insured’s comprehensive general liability (“CGL”) policies’ “occurrence”-related terms allowed for grouping of claims arising at a common location or at approximately the same time, which may result in a drastically reduced number of deductibles under the applicable policies. Thousands of individuals had brought separate claims against the insured — Corning Inc. — as a result of exposure to two asbestos-containing products. At issue on summary judgment was whether each of these individual claims constituted a separate “occurrence” under Corning’s primary, excess, and umbrella CGL policies, such that each claim would be individually subject to a deductible before the insurers’ coverage was implicated.
New Jersey State Courts Enter the E-Discovery Arena in Earnest; Award Sanctions for Email Spoliation
On June 18, 2012, an Appellate Court in New Jersey issued Goldmark v. Mellina, which held that asserting the attorney-client privilege does not excuse counsel and parties from their obligation to preserve relevant e-mails or other documents. There, the Court upheld the trial judge’s award of $5,502.50 in sanctions against a prominent New Jersey law firm because it had failed to timely produce electronic documents, which had temporarily disappeared, even though the lapse was not knowing. Because there were virtually no prior opinions (published or unpublished) addressing e-discovery in this jurisdiction, Goldmark is an important first-step towards providing e-discovery guidance to New Jersey practitioners.
Effective December 8, 2011, the U.S. District Court for the District of Delaware revised its Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”). This third version of the Revised Default Standards contains some new provisions that apply to the discovery of ESI absent agreement by the parties or court order. The Revised Default Standards also set a detailed schedule for the initial exchange of discovery in patent litigation, and reinforce the Court’s expectation of cooperation among the parties and proportionality in the preservation, identification and production of relevant information. Some of the highlights and practical points of the Revised Default Standards are as follows: