Gibbons Law Alert

Gibbons Law Alert Blog

Recent New Jersey Law Division Decision Highlights Importance of Making Government Records Requests Under Both OPRA and the Common Law

On March 21, 2011

The right of public access to information about sexual harassment claims brought against a public entity is the focus of a recent decision of the Superior Court of New Jersey, Law Division (Atlantic County). The decision illustrates the interplay between the common law right of access to government records and the New Jersey Open Public Records Act (“OPRA”), as well as the importance of making a request for a government record under both.

Paper Companies That “Created, Mobilized and Profited From” PCBs Must Bear 100% of Cleanup Costs in Fox River CERCLA Case, But May Not Be Liable for PCBs in Waste Paper Sold to Recyclers

by Paul M. Hauge

Posted in Environmental and Green Issues

On March 21, 2011

The other shoe dropped on February 28 in the closely watched CERCLA case involving PCB contamination of the Fox River in Wisconsin. District Judge William C. Griesbach, who had previously ruled that the paper companies that made and discharged PCBs to the river could not seek contribution from recycling mills that unknowingly bought PCB-laden waste paper, called “broke,” and also discharged PCBs, held that those companies must reimburse those comparatively innocent companies for 100% of the costs they have incurred for most of the polluted river. But he held that it was too early to say whether the paper companies knew, and did, enough, to make them liable for “arranging for” disposal of the PCBs that ended up in the recycling mills’ discharges to an upstream stretch of the river.

Southern District of New York Mandates Early Mediation in Employment Discrimination Cases

by Gibbons P.C.

Posted in Alternative Dispute Resolution

On March 18, 2011

The U.S. District Court for the Southern District of New York (“SDNY”) recently issued a Notice to the Bar advising that effective January 3, 2011, all employment discrimination cases, except cases filed under the Fair Labor Standards Act, will be automatically referred for early mediation through the court’s Alternative Dispute Resolution program.

Judge Scheindlin Rules That Metadata is Integral Part of ESI, Admonishes Counsel for Failing to Meet & Confer Concerning Form of ESI Production

by Jennifer A. Hradil

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

On March 14, 2011

In her most recent e-discovery opinion, United States District Court Judge Scheindlin held that certain metadata should be considered an “integral part” of an electronic record and must be produced by the government in responding to a Freedom of Information Act (“FOIA”) request. National Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655, at *7 (S.D.N.Y. Feb. 7, 2011). Judge Scheindlin also expressly admonished practitioners for failing to meet and confer concerning the form of ESI productions and reminded counsel that such cooperation and communication is required “to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production.” Had counsel in the case before her done so, the costly motion practice attendant to this FOIA production could have been avoided.

March Madness and its Impact on Employers

by Gibbons P.C.

Posted in Policies and Handbooks

On March 11, 2011

With the NCAA Men’s Basketball Tournament set to begin next week, employees everywhere will be filling out their tournament brackets. As “March Madness” sweeps the nation, employers face special challenges — particularly in maintaining a productive and efficient workforce at a time when distractions are abundant. In addition, employers should ensure that any tournament pools organized at the workplace are operated in accordance with the law.

Direct Infringement Liability May Be Possible Without Possession of All the Claimed Elements

by Gibbons P.C.

Posted in Patent

On March 10, 2011

Following a recent Federal Circuit decision, a patentee might now be able to assert a system claim against a single infringer for operating a distributed system, rather than naming joint infringers hosting portions of the distributed system. This is significant for entities that do business on-line, particularly enterprises with a cloud computing business model. Whereas in the past a patentee may have had to allege direct infringement among joint infringers (e.g., individual users, enterprises, and information technology system providers), and perhaps prove vicarious liability, now it may be possible to bring a direct infringement action against a sole infringer that might not be in possession of the complete system. E-commerce businesses, web-based providers of business services, providers of software as a service, electronic market makers, and other enterprises that use third-party server farms to host part, or all, of their system might now be named as the sole infringer. A patentee could perhaps now sue a competitor for infringement without having to sue the infringer’s IT provider. This could be particularly advantageous in cases where the patentee and the infringer share providers, and will permit the patentee to sue without jeopardizing its own business relationship with the provider.

Trial Court Says New York’s “Requester Pays” Rule Applies Only to Data That Is Not Readily Available

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On March 7, 2011

As discussed in a recent post, there exists a dichotomy between the New York state and federal courts with respect to which party should bear the cost of producing inaccessible data. A recent New York Supreme (Trial) Court decision held that New York’s standard “requester pays” rule only applies to data that is not “readily available.” Silverman v. Shaoul, 2010 N.Y. Slip Op. 20507, 2010 N.Y. Misc. (Sup. Ct. New York Cty. Nov. 3, 2010).

United States Supreme Court Decides “Cat’s Paw” Theory of Liability in Staub v. Proctor Hospital

by Gibbons P.C.

Posted in Discrimination

On March 3, 2011

It is now clear that an employer may be held liable for unlawful discrimination when it unwittingly terminates an employee based on a supervisor’s recommendation or false allegations motivated by discriminatory animus. The United States Supreme Court, in Staub v. Proctor Hospital, No. 09-400, 562 U.S. _(March 1, 2011), resolved a split in the lower courts over the reach of the so-called “cat’s paw” theory of liability, 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 its paw in the process, as the monkey feasts on the chestnuts. In the employment context, the “cat’s paw” refers to a situation in which a biased subordinate employee, who lacks decision-making authority, uses the final decisionmaker as a dupe to trigger a discriminatory employment action. In Staub, the Court held that if the decision to terminate is based in whole or in part on the malicious recommendation or false allegations from a supervisor who has discriminatory motives, the employer can be held liable under federal statutes that prohibit employment discrimination.

New Jersey Time of Decision Rule – The End Nears

by Douglas J. Janacek

Posted in Development/Redevelopment

On March 3, 2011

New Jersey case law has consistently held that new or modified development ordinance provisions apply to pending land use applications, even if the proposed zoning was specifically introduced to thwart a pending application. This has historically been known as the “time of decision” rule. On May 5, 2011, the time of decision rule will run out of time.

California Court Holds Employee’s E-mails To Counsel From Work Computer Are Not Privileged

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On March 2, 2011

Despite recent decisions from courts of last resort on State and federal levels, some jurisdictions are not extending full protection to otherwise privileged communications made through work-issued computers and PDAs. We last wrote on this issue after the New Jersey Supreme Court held that an employee did not waive the attorney-client privilege when using a company computer to communicate with her attorney via a personal password-protected e-mail account. Stengart v. Loving Care Agency. A short time later, in Quon v. Arch Wireless, the United States Supreme Court determined that the search of an employee’s text messages on a work-issued pager was reasonable and did not violate the employee’s Fourth Amendment rights. In the wake of these holdings, courts in other jurisdictions continue to make their own path through this new area of law. In Holmes v. Petrovich Development Company, LLC, the latest in the line of cases, the California Court of Appeals held that an employee’s e-mail communications with her attorney from her work computer did not constitute “‘a confidential communication between client and lawyer'” under Section 954 of the California Evidence Code.