Category: E-Discovery: Legal Decisions and Court Rules

On February 7, 2011

A recent article in the New York Law Journal by the secretary of the e-discovery committee of the Commercial and Federal Litigation Section of the New York State Bar Association underscored the confusion that remains in New York courts with respect to which party is responsible for bearing the cost of electronic document production. The article discusses cases that, on the one hand, state “what many have long believed was the rule in New York,” that “generally, the cost of [electronic] document production is borne by the party requesting the production.” Response Personnel, Inc. v. Aschenbrenner, 77 A.D.3d 518, 519, 909 N.Y.S.2d 433, 434 (1st Dept. 2010) (emphasis added). On the other hand, the First Department has also held that they “see no reason to deviate from the general rule that, during the course of the action, each party should bear the expenses it incurs in responding to discovery requests.” Clarendon Nat. Ins. Co. v. Atl. Risk Mgmt., Inc., 59 A.D.3d 284, 286, 73 N.Y.S.2d 69, 70 (1st Dept. 2009) (citing Waltzer v. Tradescape & Co., L.L.C., 31 A.D.3d 302, 819 N.Y.S.2d 38 (1st Dept. 2006)).

Time For a Bright-Line Preservation Rule?

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On February 4, 2011

As was recently reported in the New York Law Journal, one of the issues for discussion at the recent annual meeting of the New York State Bar Association this January was the need for more uniformity, and possibly even a bright-line rule, to govern issues of document preservation. This was the focus of a panel including two New York State Supreme Court justices and three federal judges from the Southern District of New York – District Judge Shira Scheindlin and Magistrate Judges Andrew Peck and James Francis.

New York’s Appellate Division Finds Facebook Accounts Off-Limits When Discovery Demands are Non-Specific

by Robert D. Brown, Jr.

Posted in E-Discovery: Legal Decisions and Court Rules

On January 31, 2011

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.

Delaware Court of Chancery Adopts ESI Preservation Guidelines

by Jeffrey L. Nagel

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

On January 24, 2011

Following the lead of other state courts, Delaware’s Court of Chancery — known for handling of some of the nation’s most complex corporate matters — has adopted guidelines for the preservation of electronically stored information (“ESI”). The guidelines reference counsel’s “common law duty to their clients and the Court” to preserve ESI, noting that a “party to litigation must take reasonable steps to preserve information, including ESI, that is potentially relevant to the litigation and that is within the party’s possession, custody or control.” At a minimum, this means that “parties and their counsel must develop and oversee a preservation process,” including the dissemination of a litigation hold notice.

You Want Discovery of an Adversary’s Computer? Better Have a Good Reason.

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On January 24, 2011

That was the lesson of a recent case out of the New York State Supreme Court, Nassau County, where the court refused to order a forensic examination of a plaintiff’s personal computer hard drive. DeRiggi v. Krischen arose out of the death of a woman during a routine surgical procedure to treat lower back pain. Plaintiffs alleged that her death was the result of perforation of the left common iliac vein by a “Spine Jet HydroDisectomy” system utilized during the procedure. Plaintiffs further alleged, among other things, that the manufacturer of the system misrepresented the risks affiliated with its use, and one of the plaintiffs, the decedent’s husband, testified at deposition that he and his wife visited the manufacturer’s website prior to the surgery and read that the procedure “felt like a bee sting and nothing more.”

Internet File Sharing Constitutes Distribution in Child Porn Case

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On January 10, 2011

New Jersey’s Appellate Division recently held in State v. Lyons, __ N.J. Super. __, 2010 N.J. Super. LEXIS 227 (App. Div. Nov. 30, 2010) that Defendant Richard Lyons’ placement of child pornography in a shared online folder constituted an offer and distribution of child pornography in violation of N.J.S.A. 2C:24-4b(5)(a). Lyons’ computers contained videos of children engaged in sexual activities, including one that a detective discovered and downloaded when he accessed a shared folder on Gnutella, a peer-to-peer file sharing network, accessible via LimeWire software program.

Different Approaches to Cost Shifting in New York State and Federal Courts for Production of Inaccessible ESI

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On December 27, 2010

In Spring 2009, the Joint E-Discovery Subcommittee of The Association of The Bar of the City of New York issued a Manual for State Trial Courts Regarding Electronic Discovery Cost-Allocation, highlighting the different approaches taken by state and federal courts in New York. One key difference is how they approach cost shifting when it comes to the production of inaccessible ESI.

McGee v. East Amwell – The “Advisory, Consultative or Deliberative” Exemption to The New Jersey Open Public Records Act (OPRA)

by Thomas J. Cafferty

Posted in E-Discovery: Legal Decisions and Court Rules

On December 20, 2010

On November 16, 2010, the Appellate Division, in McGee v. Township of East Amwell, Dkt. No. A-1233-09T2, 2010 N.J. Super., held that emails among township officials and a former supervisor regarding an employee’s termination from employment are subject to the “advisory, consultative or deliberative” exemption to the New Jersey Open Public Records Act. Plaintiff Joan McGee had appealed the Government Records Council’s (GRC) final decision denying her request for reconsideration of the GRC’s decision that the emails were exempt from disclosure.

Analyzing “Care, Custody or Control” for Preservation and Production of Electronically Stored Information

by Jeffrey L. Nagel

Posted in E-Discovery: Legal Decisions and Court Rules

On December 13, 2010

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).

N.J. Judge Dismisses Potential Juror for Attempting to “Friend” Defendant on Facebook

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On December 6, 2010

As recently reported by The Press of Atlantic City, on November 4, 2010, the Honorable Raymond Batten, J.S.C., dismissed a potential juror after defense counsel advised that the juror attempted to “friend” his client on Facebook. The potential juror was dismissed from serving in the trial of Atlantic City Councilman Marty Small, LuQuay Zahir and ten others who are accused of voter fraud during the councilman’s unsuccessful bid for mayor in 2009

Category: E-Discovery: Legal Decisions and Court Rules

Confusion in New York Regarding Who Bears the Cost of Electronic Discovery

Time For a Bright-Line Preservation Rule?

Delaware Court of Chancery Adopts ESI Preservation Guidelines

You Want Discovery of an Adversary’s Computer? Better Have a Good Reason.

Different Approaches to Cost Shifting in New York State and Federal Courts for Production of Inaccessible ESI

McGee v. East Amwell – The “Advisory, Consultative or Deliberative” Exemption to The New Jersey Open Public Records Act (OPRA)

Analyzing “Care, Custody or Control” for Preservation and Production of Electronically Stored Information

N.J. Judge Dismisses Potential Juror for Attempting to “Friend” Defendant on Facebook

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