Gibbons Law Alert

Gibbons Law Alert

Category: E-Discovery: Legal Decisions and Court Rules

No Privilege for Information Posted on Social Network Sites — Court Orders Production of Plaintiff’s Social Network Account Usernames and Passwords

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 29, 2010

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.

“Cached” Web Files May Serve as Evidence in Child Pornography Case

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 22, 2010

In a prosecution for promoting and possessing computer images of child pornography, a Brooklyn appellate panel upheld the conviction of defendant and determined that temporary files automatically “cached” by an internet browser may serve as evidence of promoting and possessing child pornography. People v. Kent, ___ A.D.3d ___, 2010 N.Y. Slip. Op. 7364, 2010 N.Y. App. Div. LEXIS 7405 (App. Div. 2d Dept. Oct. 12, 2010). The defendant, a professor of public administration at a Dutchess County college, was found guilty of 134 counts of possession of a sexual performance and 2 counts of promotion related to his use of an office computer.

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.)

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.'”

The 2010 E-Discovery Landscape: Panel Discussion on the Essential E-Discovery Decisions of 2010 at Gibbons Fourth Annual E-Discovery Conference

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 11, 2010

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.

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.

Federal Judge Rules Government Failed to Preserve Text Messages and Orders Adverse Inference Instruction in Criminal Case

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 2, 2010

On October 21, 2010, in the highly publicized New Jersey government corruption case U.S. v. Suarez, et ano., No. 09-932, 2010 U.S. Dist. LEXIS 112097 (D.N.J.), the Honorable Jose L. Linares, U.S.D.J., held that the FBI had a duty to preserve Short Message Service electronic communications (i.e., text messages) exchanged between its agents and their cooperating witness, Solomon Dwek, during the course of the investigation of defendants Anthony Suarez (mayor of Ridgefield, NJ) and Vincent Tabbachino (former Guttenberg, NJ councilman and police officer). Despite the lack of evidence of bad faith on the part of the government, because the text messages were not preserved, the Court found clear prejudice to defendants and ordered that the appropriate sanction was a “permissive” adverse inference jury instruction.

NJ Courts Allow Internet Usage in Court

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 18, 2010

Imagine you are in a New Jersey courtroom and have begun the jury selection process. When presented with one of the prospective jurors, you think that you have read about him or her in a recent article. As a result, you open your laptop and begin to surf the Internet to research the individual, but your adversary objects, stating that he or she does not have a computer. Will the judge rule in your favor? The answer is “yes” based upon the Appellate Division’s recent opinion in Carino v. Muenzen, 2010 N.J. Super Unpub. LEXIS 2154 (App. Div. Aug. 30, 2010).

“Private” Facebook and MySpace Postings are Discoverable

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 11, 2010

A New York trial court has ordered a personal injury plaintiff to produce her Facebook and MySpace postings, notwithstanding that plaintiff self-designated them as private. Justice Jeffrey Arlen Spinner, in Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010), reasoned that New York’s “liberal discovery policies” favored allowing access to posts that might undermine plaintiff’s claim for loss of enjoyment of life and further that, “as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.”

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