Gibbons Law Alert
On October 3, 2011, the United States Court of Appeals for the Ninth Circuit determined that the Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. §§ 2510 2522, applies to foreign citizens, giving them the same privacy protections Congress afforded U.S. citizens in connection with the disclosure of electronic data by third-parties service providers.
Will developments in technology make lawyers more efficient or will they become extinct? A March 2011 article in The New York Times, entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software,” discussed the significant efficiency and accuracy of e-discovery software in document review over that of human review. Although technology has enabled computers to imitate humans’ ability to reason at even higher levels, rest assured that Armageddon is not looming on the legal profession’s horizon.
Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).
In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as “an easy way to quickly download to your computer everything you’ve ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.” The Facebook announcement included a short video detailing how to use the feature. Cnet TV has a more in-depth video. Craig Ball also wrote an article about this feature in the February 23, 2011 issue of Law Technology News.
When a party voluntarily dumps data on its adversary without first conducting a meaningful privilege review, that party may be deemed to have waived any applicable privileges, particularly where it fails to timely argue that a privilege review would be too costly. That is the lesson of In re Fontainebleau Las Vegas Contract Litig., 2011 U.S. Dist. LEXIS 4105 (S.D. Fla. Jan. 7, 2011), a cautionary tale of the dangers of data dumping. After repeatedly failing to meet court-ordered production deadlines, in response to a subpoena, Fontainebleau Resorts, LLC (“FBR”) essentially dumped on the requesting parties (the “Term Lenders”) three servers containing approximately 800 GB of data–without first conducting any meaningful privilege review. Consequently, in its January 7th decision, the court granted the Term Lenders’ motion seeking a declaration that FBR waived its privilege claims. Had FBR litigated this matter differently, it might have protected its privileged information.
In McCann v. Harleysville Insurance Co. of New York, 910 N.Y.S.2d 614, 2010 N.Y. App. Div. LEXIS 8396 (N.Y. App. Div. Nov. 12, 2010), New York’s Appellate Division, Fourth Department affirmed the trial court’s refusal to compel Plaintiff to produce information regarding or provide access to her Facebook account. Plaintiff was injured in an auto accident with one of Harleysville’s insured. She filed a personal injury suit against the insured, which resulted in a settlement. Plaintiff thereafter commenced a new action directly against Harleysville for certain uninsured/underinsured auto insurance benefits.
A party has an obligation under the Federal Rules of Civil Procedure to produce materials — including electronically stored information (“ESI”) — within their “care, custody or control.” Rule 34 of the Federal Rules construes this to mean either “the legal right” or “the actual ability” to obtain the materials; and New York courts have broadly interpreted this obligation to extend to documents and materials that a party has the “right, authority, or practical ability to obtain.” See In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 195 (S.D.N.Y. 2007).
A Pennsylvania Court of Common Pleas has ordered the production of a plaintiff’s social network account passwords and usernames in the recent decision of McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD (Pa. Ct. of Common Pleas, Jefferson Cty. September 9, 2010) In this case, McMillen sued Hummingbird Speedway Inc. and others for injuries he allegedly suffered when he was rear-ended during a cool down lap after a stock car race in 2007 on Hummingbird’s premises. During discovery, Hummingbird requested that plaintiff disclose information regarding social network websites that plaintiff belonged to and asked that plaintiff turn over his log-in and passwords for his accounts. McMillen responded that he had accounts on Facebook and MySpace but objected to any request for his log-in and passwords on the basis that the requested information was privileged and would lead to the production of private communications. Ultimately, Hummingbird filed a motion to compel the production of the requested information as they wanted “to determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damages claims.” The court found that such information is not protected by any evidentiary privileges under Pennsylvania law and thus, is discoverable.
Gibbons’ Fourth Annual E-Discovery Conference kicked off with a panel discussion on the essential e-discovery decisions from 2010. The panel, comprised of renowned e-discovery authority Michael Arkfeld of Arkfeld & Associates, Scott J. Etish, Esq., an associate at Gibbons and member of the firm’s E-Discovery Task Force, and the Hon. John J. Hughes, United States Magistrate Judge for the District of New Jersey (Retired), addressed numerous recent decisions related to the following areas: (1) the need for outside and inside counsel to monitor compliance; (2) obtaining electronically stored information from foreign companies; (3) cooperation between adverse parties; (4) social media discovery; (5) searches and inadvertently disclosed privilege documents; and (6) legal holds and sanctions. The panel provided guidance as to best practices related to numerous areas, including navigating e-discovery challenges in the aftermath of the seminal Pension Committee, Rimkus and Victor Stanley II decisions. A brief summary of all of the cases the panel discussed is available here, and a copy of the PowerPoint slides the panel used is available here.