Archive: June 2011

1
San Diego County Bar Issues Ethical Opinion Addressing Friend Requests
2
Judge Scheindlin Withdraws Opinion in Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency
3
Court Rejects Objection to Portion of Monetary Sanctions, Orders Payment of $571,440.12 by July 15
4
Court Orders Monetary Sanctions Against Client and Counsel for Discovery Violations, Including Counsel’s Failure to Make “Reasonable Inquiry”
5
No Sanctions for Failure to Preserve Disaster Recovery Back-up Tapes where Other Preservation Efforts were Reasonable “In the Context of This Case”
6
Court Grants Motion to Compel, Orders Forensic Imaging of Defendants’ Computers
7
For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived

San Diego County Bar Issues Ethical Opinion Addressing Friend Requests

On May 24, 2011, the San Diego County Bar Association issued SDCBA Legal Ethics Opinion 2011-2, addressing the question of whether counsel may send a “friend request” to opposing parties.  Following extensive analysis of the issue, the opinion concludes as follows:

Social Media sites have opened a broad highway on which users may post thier most private personal information.  But Facebook, at least, enables its users to place limits on who may see that information.  The rules of ethics impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel.

We have concluded that those rules bar an attorney from making an ex parte friend request of a represented party.  An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party.  We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.  Represented parties shouldn’t have “friends” like that and no one – represented or not, party or non-party – should be misled into accepting such friendship.  In our view, this strikes the right balance between allowing unfettered access to what is public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously circumventing the privacy even of those who are unrepresented.

A full copy of the opinion is available here.

Judge Scheindlin Withdraws Opinion in Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency

Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 10 Civ. 3488 (SAS) (S.D.N.Y. June 17, 2011)

On February 7, 2011, Judge Scheindlin issued an opinion in which she concluded that “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’”  (See a summary of that opinion here.)  The opinion also provided substantial guidance regarding the “minimum fields of metadata that should accompany any production of a significant collection of ESI."  That opinion has now been withdrawn.

The text of the Order withdrawing the opinion is short, and is provided below:

This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

A copy of the opinion is also available here.

Court Rejects Objection to Portion of Monetary Sanctions, Orders Payment of $571,440.12 by July 15

Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662 (D. Md. June 15, 2011)

In another chapter of the Victor Stanley saga, the defendant objected to payment of the remaining balance of the monetary sanction ordered as a result of its spoliation of evidence (see Victor Stanley II).  Specifically, the defendant had been ordered to pay a monetary sanction “equivalent to Plaintiff’s fees and costs ‘associated with all discovery that would not have been un[der]taken but for Defendant’s spoliation, as well as the briefings and hearing regarding Plaintiff’s Motion for Sanctions.’”  The total award of sanctions amounted to $1,049,850.04.  Defendant objected to payment of fees which it alleged were unrelated to its spoliation.  The District Court disagreed and found that the recommended award was proper.  Accordingly, defendant was ordered to pay the remaining balance of the sanction, $571,440.12, by July 15, 2011.

A copy of the order is available here.

Court Orders Monetary Sanctions Against Client and Counsel for Discovery Violations, Including Counsel’s Failure to Make “Reasonable Inquiry”

Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)

For discovery violations, including (among others) false certification that all relevant records were kept in paper format, delayed and inadequate production and failure to search for documents in a timely manner, and counsel’s failure to adequately familiarize himself with his client’s document retention practices or to assist in the production of documents, the court imposed monetary sanctions equal to the amount expended because of plaintiff’s discovery abuses, to be born by plaintiff and its counsel jointly and severally.

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No Sanctions for Failure to Preserve Disaster Recovery Back-up Tapes where Other Preservation Efforts were Reasonable “In the Context of This Case”

Gaalla v. Citizens Med. Ctr., No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011)

Plaintiffs moved for sanctions based on defendant’s failure to preserve its disaster recovery back-up tapes, which were overwritten every seven or fourteen days, even after the filing of this lawsuit.  Further, “as the briefing developed,” plaintiffs “appeared to contend” that even absent a duty to preserve the disaster recovery back-up tapes themselves, “[defendant]’s failure to preserve the back-up tapes in conjunction with the failure to take timely ‘snapshots’… of relevant email accounts, and evidence that certain CMC employees had deleted emails from their account at some point in the past warrant[ed] severe sanctions.” 

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Court Grants Motion to Compel, Orders Forensic Imaging of Defendants’ Computers

Weatherford U.S., L.P. v. Innis, No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011)

Plaintiff alleged that a former employee had downloaded its confidential information and used it to “jump start” his own competing company.  Defendant Innis acknowledged that he had downloaded the information, but denied accessing or using it as plaintiff alleged.  Forensic examination of the thumb drive containing the downloaded information contradicted his claims.  Thereafter, plaintiff filed a motion to compel production of  materials previously identified in a subpoena duces tecum and, “to minimize disruption to defendants’ operations and alleviate their concerns about the disclosure of privileged communications,” proposed that an expert of plaintiff’s choosing be allowed to image defendants’ computers at plaintiff’s expense, and that defendants be allowed to screen the imaged documents prior to their production.  Citing Innis’s acknowledgment that he had copied plaintiff’s confidential information and evidence that he had accessed it thereafter, the court granted plaintiff’s motion to compel.

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For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived

DL v. District of Columbia, No. 05-1437 (RCL), 2011 WL 1770468 (D.D.C. May 9, 2011)

Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial.  Defendants moved for reconsideration.  Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.

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