Archive: August 15, 2008

1
Indian Legal Services Company Moves to Dismiss Anti-Outsourcing Lawsuit
2
Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision

Indian Legal Services Company Moves to Dismiss Anti-Outsourcing Lawsuit

Newman McIntosh & Hennessy v. Bush, Civ. No. 08-00787 (CKK) (D.D.C.)

This lawsuit seeks declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted.  See our original post about the lawsuit here, which includes a link to the Amended Complaint.

Acumen Legal Services, the India-based legal services company named as a defendant in the case, has now filed a motion to dismiss for lack of subject matter and personal jurisdiction.  In the motion, Acumen argues:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition.  The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad.  NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, not excluding in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

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Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision

Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)

In this case, plaintiff alleged that UPS fired him because of his age (reportedly, he was about 44 years old at the time).  UPS contended that Gippetti’s termination had nothing to do with his age.  It maintained that he was fired for “stealing time” (i.e., sleeping on the job during periods he claimed to be working, taking excessive rest breaks and inaccurately recording meal and rest breaks) and because he did not properly complete truck safety inspections required by UPS and government regulations.

In discovery, plaintiff sought production of “tachograph records,” which were records that showed a vehicle’s speed and the length of time it is moving or stationary.  UPS produced tachographs from 2007 and 2008, and agreed to produce the records on an ongoing basis.  However, UPS stated it was not able to locate any other responsive tachographs because its practice is, and since 2002 has been, to preserve such records for only 37 days due to the large volume of the data.

Plaintiff moved for spoliation sanctions, arguing that the destroyed tachograph records “would support that Plaintiff did not drive Route SU09 any differently than employees who were under the age of 40 years old.”  UPS responded that, until recently in this litigation, it had no reason to believe that all tachographs had any bearing on plaintiff’s age discrimination claim before those records were destroyed years ago in accordance with the company’s retention policy.

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