Gibbons Law Alert

Gibbons Law Alert

Category: E-Discovery: Legal Decisions and Court Rules

The Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year’s Pivotal E-Discovery Case Decisions

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

On November 16, 2011

The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.

U.S. Privacy Law Protects Non-U.S. Citizens

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

On November 15, 2011

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.

Keynote Speaker Announced for Gibbons Fifth Annual E-Discovery Conference

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

On October 29, 2011

Gibbons is pleased to announce that the Honorable Edwin H. Stern (ret.) will present a brief keynote address where he will provide an insider’s view of some e-discovery concerns facing the courts today at the Gibbons Fifth Annual E-Discovery Conference, which will be held at the Sheraton Meadowlands Hotel & Conference Center in East Rutherford, NJ.

E-Discovery Blog Post Written by Mark S. Sidoti Chosen as “Pick of the Week” by LitigationWorld

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

On October 26, 2011

In its October 3, 2011 issue, the editorial team of LitigationWorld chose Mark S. Sidoti’s September 28, 2011 blog post entitled New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures as its Pick of the Week. LitigationWorld is a free weekly email newsletter that provides helpful tips regarding electronic discovery, litigation strategy, and litigation technology. Each week, the editorial team chooses the most noteworthy and insightful articles on the litigation web published during the previous week and, from those, selects one as their Pick of the Week.

ABA Formal Opinion 11-460 is at Odds With Stengart v. Loving Care Agency, Inc.

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 25, 2011

The American Bar Association recently published Formal Opinion 11-460 to provide guidance to attorneys regarding their ethical duty upon discovering emails between a third party and the third party’s attorney. The Opinion interprets Model Rule 4.4(b) literally, concluding that neither that rule nor any other requires an attorney to notify opposing counsel of receipt of potentially privileged communications. The Opinion is of particular note because it directly contradicts the New Jersey Supreme Court’s opinion in Stengart v. Loving Care Agency. Inc. 201 N.J. 300 (2010).

The Federal Circuit’s New Model Order on E-Discovery

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 7, 2011

On September 27, 2011, Chief Judge Randall Rader of the Federal Circuit announced that the Advisory Council of the Federal Circuit unanimously adopted a Model Order regarding e-discovery in patent cases. Its purpose is to serve as a “starting point” for district courts to streamline and reduce e-discovery costs, emphasizing email production limits.

New Jersey Supreme Court Considering Guidelines Concerning Use of Electronic Devices in Courtroom

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 4, 2011

The Bench Bar Media Committee of the New Jersey Supreme Court (“Committee”) has adopted, and forwarded to the Supreme Court, Guidelines for the Usage of Electronic Devices in New Jersey state courts. The proposed Guidelines comprehensively address the use of Electronic Devices in the courtroom, the common areas of a courthouse and the grounds of a courthouse. If adopted by the Supreme Court, the proposal will represent a major revision to the existing Guidelines.

New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures

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

On September 28, 2011

Failure to properly preserve electronic evidence continues to provide at-risk litigants with the ability to steer the court from scrutiny of the merits, and drastically shift the balance of litigation leverage. The latest example of this is NVE, Inc. v. Palmeroni out of the District of New Jersey. This case involved NVE’s claims of breach of fiduciary duty against its former employee Palmeroni. At least on the specific Complaint allegations, NVE’s case against Palmeroni seems formidable — while working as a NVE salesman, the defendant allegedly entered into secret kickback arrangements with product purchasers, and formed a dummy entity with another NVE employee to divert sales of NVE’s products for their own benefit. Palmeroni was terminated in 2006 and later sued by NVE. Seems like a pretty good case, if the court and a jury could get to it.

E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 27, 2011

Even after a particular case has concluded, the risk of sanctions arising from e-discovery violations persists. Green v. Blitz U.S.A. was one of many products liability suits alleging injuries resulting from the defendant’s failure to equip its gas can with a “flame arrester.” Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

Courts Embrace Sua Sponte Imposition of Rule 502 Clawback Provisions

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 13, 2011

In 2008, Congress adopted Federal Rule of Evidence 502. FRE 502 was designed to promote discovery by providing litigants with a tool to control review costs in large-scale document or electronic evidence productions while avoiding the risk of wholesale subject matter waiver in cases of inadvertent production of privileged materials. Under Rule 502, where privileged material (or other information protected from disclosure) is inadvertently revealed, the disclosing party retains the privilege so long as it took reasonable steps both to prevent the disclosure and to rectify its mistake. Although it is still in its infancy, Rule 502 nonetheless appears to be living up to expectations. Indeed, as two recent federal decisions demonstrate, FRE 502 is not simply a tool available to litigants but rather, it is yet another weapon in a judge’s arsenal, permitting the court to manage discovery and protect privilege, through sua sponte entry of clawback orders.

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