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By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents.  Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant’s motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne & Associates (collectively “Plaintiffs”) sued their law firm Miller, Rosado & Alogis, LLP (“Defendants”) for malpractice.  Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants.  Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents.…
Continue Reading FAILURE TO ADEQUATELY ADVISE CLIENTS ON THEIR PRESERVATION OBLIGATIONS CAN BE CONSIDERED MALPRACTICE

Seyfarth Shaw Offers Data Privacy & Protection in the EU-U.S. Desktop Guide and On-Demand Webinar Series

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4%…

A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards.  Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time.  It also includes some instructive information about the application of the “practical ability” test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.

Not long after the tragic plane crash that resulted in the deaths of Lynyrd Skynyrd lead singer Ronnie Van Zandt and his co-founding band member Steven Gaines,  Artimus Pyle, the former drummer, entered an agreement with the surviving heirs and other members of the band.  The agreement involved promises to never perform as “Lynyrd Skynyrd,” or to generally profit from the name of the band or the tragic deaths of Van Zant or Gaines without approval of the original parties to the agreement.  Their dramatically named “blood oath” agreement was more concretely memorialized in a Consent Order in 1988, following other litigation, which Pyle signed.

Over 20 years after the 1988 Consent Order, the drama that spawned the litigation began in a story that sounds like it came from a Netflix mini-series.  A film director named Jared Cohn, who worked under contract for an independent record label-turned movie producer, Cleopatra Records, Inc. (“Cleopatra”) reached out to Pyle about making a movie centered around the band and Pyle’s life in it.  Cohn was hired by the founder and co-owner of Cleopatra Records, Brian Perera, who is another interesting character in his own right. Pyle met and consulted with Perera on multiple occasions about ideas for a film generally depicting his life and the plane crash, which Pyle survived.  In their first conversations, Pyle did not mention the 1988 Consent Order, but the Order eventually was delivered to Cleopatra.  The copy of the Order was also eventually followed by a “cease and desist” letter and other correspondence from the Plaintiffs’ counsel.  All the while, Cleopatra’s movie production work continued.
Continue Reading Spoliation and Southern Rock

Seyfarth eDiscovery Partner Richard Lutkus, along with William Lederer from Relativity and Patrick Zeller of Gilead Sciences, Inc., will host a panel discussion titled “Brave New Words: Cloud Data Collection, Processing, and Hosting” at this year’s RelativityFest on October 24, 2017.

This session will provide attendees with information about new data collection methods with tools …

Seyfarth eDiscovery attorneys Jason Priebe and Natalya Northrip will present “A Practical Roadmap for EU Data Protection and Cross-Border Discovery” at this year’s RelativityFest on October 24, 2017.

This presentation will provide attendees with practical tips for leveraging the new Sedona International Principles to help in your compliance with stringent GDPR requirements, and in seeking…

Court Denies Plaintiff’s Motion to Compel

In Mirmina v. Genpact LLC, 2017 BL 260425, D. Conn., Civil No. 3:16CV00614 (AWT), the Court denied Plaintiff’s motion to compel additional responsive electronic communications despite the fact that an individual directly involved in the underlying claims of the suit “self-identified” potentially responsive emails.  The Court based its…

In Realpage Inc. v. Enter. Risk Control, LLC, 2017 BL 102339 (E.D. Tex. 2017), the court ordered Enterprise Risk Control, LLC (“Enterprise”) to produce forensic images of devices used by a former Realpage employee to a forensic neutral in order to determine whether any source code was recoverable pertaining to Realpage’s allegations of misappropriation.

Background

After leaving employment with Realpage in 2012, Tom Bean (“Bean”) started his own software development company named IDC. Bean and IDC were hired by former Realpage employee, and active Enterprise employee, Lonnie Derden (“Derden”) to design a vendor compliance application that was “completely different” than the one in place at Realpage. In July 2013, Enterprise hired Bean as a full-time employee and it was at that time that Bean transferred all of his source code for the vendor compliance application from IDC’s computers to Enterprise’s computers. According to Bean’s affidavit, he deleted all versions of his source code from IDC’s computers after the transfer.

Pursuant to this lawsuit, Enterprise made the vendor compliance application source code from July 2013 to the present available to Realpage for their analysis. During their review, Realpage found comments in the source code referencing dates from 2012 and early 2013, which Realpage argued indicated that versions of the source code from that point in time must exist. While the court rejected this argument, they recognized that Realpage’s complaints surround code that existed on or before the date that Bean transferred the source code to Enterprise. The court concluded that “a tailored [forensic] examination is appropriate at this time to determine whether the missing code is recoverable or to enable effective cross-examination as to its destruction.” Id. at *2.
Continue Reading Court Orders Enterprise to Engage in Forensic Imaging and Analysis

In January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated International Litigation Principles on Discovery, Disclosure & Data Protection in Civil Litigation (Transitional Edition). This publication updates the 2011  International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor.  It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018.  Many of these developments are consistent with the focus on “proportionality” of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.

Given the complex and dynamic EU data protection  landscape – where the new Privacy Shield has not been tested, and before the GDPR has even taken effect, – WG6 has aptly designated this as a “Transitional” edition.  This edition provides interim best practices and practical guidance for courts, counsel and corporate clients on safely navigating the competing and conflicting issues involved in cross-border transfers of EU personal data in the context of transnational litigation and regulatory proceedings.  Following are the publication’s Six Transitional International Litigation Principles:…

Continue Reading The Sedona Conference WG6 Issues “Transitional” International Litigation Principles