Gibbons Law Alert

Gibbons Law Alert

Tagged: Spoliation

Recent New Jersey Case Serves as Warning to Redevelopers of Contaminated Sites

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 7, 2016

A recent New Jersey Appellate Division case concerning spoliation of evidence in the context of a contribution action under the New Jersey Spill Compensation and Control Act (“Spill Act”) counsels caution on the part of redevelopers of contaminated sites. The case makes clear that owners of contaminated sites must endeavor to preserve physical evidence related to the contamination as soon as litigation becomes “probable” if they hope to rely on that evidence in a future contribution action.

N.Y. Court Grants Spoliation Sanctions for Destruction of Documents Decades Ago

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 11, 2016

In Warren v. Amchem Products, Inc., Justice Peter Moulton sanctioned defendant J-M Manufacturing Company for destroying documents in 1990 and 1997 – 24 years and 17 years, respectively, before the Warren Estate filed suit against asbestos manufacturers in 2014. The Court granted plaintiff’s motion for spoliation sanctions and ordered that, should the case proceed to trial, the jury will be instructed that it may infer that the destroyed documents would have supported plaintiff’s claims and would not have supported J-M’s defenses.

New Jersey Attorneys Must Face Ethics Charges for Facebook Friending

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On April 8, 2015

On February 3, 2015, the Appellate Division of the New Jersey Superior Court affirmed the dismissal of a complaint two attorneys filed against the Office of Attorney Ethics and its Director (collectively “OAE”) claiming OAE lacked authority to investigate and prosecute ethics grievances against them for “friending” a party to a litigation on Facebook. The Appellate Division’s decision is significant – it affirms OAE’s power to investigate and prosecute alleged ethical violations and demonstrates the potential consequences for attorneys’ improper use of social media in litigation.

Florida is the Latest State to Allow Attorneys to Advise Clients About the Removal of Social Media Posts and Pictures

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On February 10, 2015

On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued an advisory opinion holding that before litigation commences, and absent any other preservation obligation, an attorney may advise a client to: (1) remove information from social media pages and (2) change privacy settings from public to private, as long as the client retains a record of any deleted information or data. In so holding, the Florida ethics committee joined panels from New York, Pennsylvania, and North Carolina that have issued similar guidance.

Two Failures to Preserve, Two Starkly Different Results in New York

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 2, 2015

Two recent spoliation decisions, both out of the same New York Court and issued within a week of each other, demonstrate the potential for starkly different sanctions results depending on the level of culpability of the spoliator. AJ Holdings Group, LLC, v. IP Holdings, LLC, Index No. 600530/2009 (Sup. Ct. N.Y. County, September 19, 2014) and L&L Painting Co., Inc. v. Odyssey Contracting Corp., 2014 N.Y. Misc. LEXIS 4300 (Sup. Ct. N.Y. County, September 25, 2014) are both breach of contract actions in which plaintiffs were accused of spoliating evidence.

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.

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).

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.

Negligent Spoliation May Result in Sanctions Under New York Law

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2014

Recently, the New York Supreme Court, Appellate Division, First Department considered whether to adopt and apply the Zubulake standard for the spoliation of electronically-stored information (“ESI”) to a claim for spoliation of an audiotape recording or whether existing New York spoliation doctrine was sufficient. Strong v. City of New York involved a June 30, 2009, accident in which an NYPD vehicle collided with another vehicle, jumped the sidewalk curb and struck five pedestrians, including plaintiff, Kevin Strong. Within 30 days of the accident, three plaintiffs commenced personal injury actions and these were consolidated for trial. On September 21, 2009, less than 90 days after the accident, the City joined issue and interposed the “emergency operation” defense, claiming the police officer’s vehicle was an authorized emergency vehicle engaged in an emergency operation at the time of the accident and, therefore, the City could only be held liable if the officer had acted with reckless disregard for the safety of others.

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