Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

District Judge Overturns Part of Victor Stanley II Ordering Immediate Jail Time to a Defendant Based on a Possible Future Failure to Pay Spoliation Sanctions

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 19, 2010

As previously reported, in Magistrate Judge Grimm’s September 9, 2010, decision and order, often referred to as Victor Stanley II, defendant Creative Pipe, Inc. and its principal, defendant Mark T. Pappas, were sanctioned for intentionally violating the court’s preservation and production orders. Among other things, Magistrate Judge Grimm ordered defendants to pay plaintiff’s costs and attorneys’ fees allocable to their spoliation. Judge Grimm further ordered that Mr. Pappas be imprisoned for no more than two years, “unless and until” he pays the fee award. Judge Grimm regarded this sanction as “absolutely essential” in light of his conviction that, “[w]ithout the threat of jail time, … Plaintiff will receive a paper judgment that does not enable it to recover its considerable out-of-pocket losses caused by Pappas’s spoliation.” By Order dated September 30, 2010, the Honorable Marvin J. Garbis, U.S.D.J., entered Magistrate Judge Grimm’s September 9 order essentially verbatim, including that, “[p]ursuant to Fed. R. Civ. P. 37(b)(2)(A)(vii), Defendant Pappas’s acts of spoliation shall be treated as contempt of this Court, and as a sanction, he shall be imprisoned for a period not to exceed two (2) years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded ….” (Emphasis added.)

Supreme Court Hears Oral Argument on “Cat’s Paw” Theory of Liability; Decision Anticipated Later This Term

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Posted in Discrimination

On November 18, 2010

For the first time the United States Supreme Court is poised to provide guidance on the “cat’s paw” theory of liability in employment discrimination cases. Under the “cat’s paw” theory, an employee alleging to be the victim of unlawful discrimination seeks to impose liability on the employer in situations where a non-biased decision-maker is influenced by another, usually subordinate, employee who is, in fact, motivated by discriminatory animus. In Staub v. Proctor, the Supreme Court recently heard oral argument on the proper application of the “cat’s paw” theory, which gets its name from the 17th century fable by French poet Jean de La Fontaine. In the fable a monkey convinces a cat to remove chestnuts from a fire. The cat complies, pulling out the chestnuts one at a time, burning her paw in the process, as the monkey feasts on the chestnuts.

Technology and Legal Panel Addresses the Risks and Benefits of Cloud Computing at Gibbons Fourth Annual E-Discovery Conference

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Posted in Technology Developments and Issues

On November 18, 2010

Cloud computing is revolutionizing the IT marketplace. With the economy still suffering aftershocks from the Great Recession, companies of all sizes are being pressured to consider cost-cutting strategies. One such strategy is migration to cloud computing services. The “cloud” provides a reasonable solution to reduce cost while at the same time, increasing efficiency and innovation in IT operations. On Thursday, October 28, 2010, Gibbons P.C. held its Fourth Annual E-Discovery Conference, assembling a panel of experts for a roundtable discussion concerning (i) what constitutes “cloud computing,” (ii) how cloud migration can be achieved, and (iii) what risks are posed by “cloud computing” and how to mitigate those risks.

Gibbons E-Discovery Task Force Reaches New Heights

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Posted in Corporate Information and Records Management Policies / E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On November 16, 2010

On October 28, the Gibbons E-Discovery Task Force hosted its fourth annual full day E-Discovery Conference, with more than 100 clients, in-house counsel and other contacts in attendance. Devoted to the latest developments in electronic discovery and corporate information management, this program included speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judges John Hughes and Ronald Hedges, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who presented and moderated panels were Task Force Chair, Mark S. Sidoti, Chair of the firm’s Employment Law Department, Christine A. Amalfe, and Task Force members, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Lan Hoang and Jeffrey L. Nagel.

Court Finds Google Earth Images to Be Admissible Evidence

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 15, 2010

On September 27,2010, in State ex. Rel. J.B., the Appellate Division of the Superior Court of New Jersey allowed the State to use two satellite photographic images obtained from Google Earth as illustrative aids. The case involved the lower court’s determination that a minor was a delinquent. Attempting to discredit the juvenile’s alibi that he was home at the time of an alleged burglary, the State offered into evidence the juvenile’s cell phone records and the testimony of a Verizon representative, who explained that cell phone calls are transmitted through the tower nearest the caller. The prosecution then offered photographs obtained from Google Earth to aid in showing that calls made from the juvenile’s cell phone during the burglary were transmitted through the cell phone tower that was closest to the burglary site (and not the tower closest to the juvenile’s home). Both towers, as well as the site of the burglary and the juvenile’s home, were pinpointed via Google Earth. Defense counsel objected, arguing that the prosecution failed to establish a “‘foundation in terms of how accurate [Google Earth] is.'”

Employer Social Media Policies: The Dangers of Too Much Or Not Enough

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Posted in Litigation Preparedness and Strategies / Policies and Handbooks

On November 12, 2010

Employers wanting to prohibit damaging communications from being made about them by employees through blogging and rapidly evolving social media such as Facebook, Twitter, and LinkedIn should be aware of a recent National Labor Relations Board (NLRB) Complaint against American Medical Response of Connecticut, Inc. asserting that two of the more common employer restrictions on employee blogging and social media communications constitute unfair labor practices and are, therefore, unlawful. In its News Release, the NLRB pointed to two of the provisions in the company’s blogging and internet posting policies as being unlawful under Section 7 of the National Labor Relations Act (NLRA).

Gibbons Fourth Annual E-Discovery Conference: Panel Discussion On Emerging Technologies In ESI Preservation, Collection And Processing

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Posted in Litigation Preparedness and Strategies

On November 11, 2010

Gibbons Fourth Annual E-Discovery Conference concluded with a panel discussion on emerging technologies in the management of electronically stored information (“ESI”). The panel discussed the burdens of e-discovery and offered presentations on emerging technologies to make ESI management and production more cost effective, efficient and least disruptive of business.

Third Circuit Refused to Apply Ledbetter to Promotion Claims

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Posted in Discrimination

On November 10, 2010

On an issue of first impression in the Third Circuit whether “a failure-to-promote claim” constitutes “discrimination in compensation” as prohibited by the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”) the Court of Appeals recently held that a failure to promote claim is not the same as a discrimination in compensation claim. Consequently, the Plaintiff in Noel v. The Boeing Company could not avail himself of the FPA’s more flexible statute of limitations period.

What Employers Can Do About the Flu

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Posted in Policies and Handbooks

On November 5, 2010

Flu season is here. While the Centers for Disease Control and Prevention (CDC) currently is not reporting high levels of influenza outbreak or predicting pandemic levels of the virus this year, the flu will nevertheless impact businesses whose employees become ill and/or need to take time off for flu-related reasons. With a handful of restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Employee Personal Use of Company-Owned Electronic Devices in the Wake of Stengart and Quon

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

On November 3, 2010

In this technology age, employees increasingly make personal use of workplace electronic communications applications. The legal ramifications of such personal use – and how employers can create policies that balance the right to monitor the workplace with employees’ expectations of privacy – were examined in an informative panel discussion, “Electronic Communications Policies in the Wake of Stengart and Quon” during Gibbons P.C.’s Fourth Annual E-Discovery Conference on October 28, 2010.

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