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Author Archives: Bruce V. Miller

What is the Difference between an Adverse Sanction and an Adverse Instruction?

In the world of discovery, including e-discovery, the production of evidence at trial is necessary to prove or defend a case. But what happens when that evidence is unavailable or goes missing? The Second Circuit addressed one of the possibilities to this issue in Mali v. Fed. Ins. Co, No. 11-5413, 2013 WL 2631369 (2d […]

NY Courts Adopt Federal E-Discovery Cost Allocation Standard

U.S. Bank Nat. Ass’n, et al. v. GreenPoint Mortgage Funding, Inc., 94 A.D.3d 58 (1st Dept. 2012) On February 28, 2012, Justice Acosta of the First Department, Appellate Division, adopted the federal Zubulake standard to determine which party is responsible for the cost of searching for, retrieving, and producing electronically stored information (ESI). In U.S. […]

Court Rules Against Imposing Sanction of Dismissal Because Plaintiff’s Conduct Did Not Rise to the Level of a Willful Violation

Fid. Nat’l Title Ins. Co. v. Captiva Lake Invs., LLC, 2012 U.S. Dist. LEXIS 163801, 1-2 (E.D. Mo. Nov. 16, 2012) A United States District Court in the Eastern District of Missouri recently denied a Defendant’s motion seeking to impose a sanction of dismissal against the Plaintiff because the Plaintiff’s conduct did not “rise[] to […]

NY Appellate Court Holds Trial Court Erred In Forcing Defendant To Turn Over iPhone

 AllianceBernstein L.P. v Atha, 2012 N.Y. App. Div. LEXIS 7693 (N.Y. App. Div. 1st Dep’t Nov. 15, 2012). On November 15, 2012, the New York Appellate Court for the First Department held in AllianceBernstein L.P. v. Atha that production of an iPhone was beyond the scope of the discovery request. The Plaintiff, an investment firm, […]

N.Y. District Judge Sanctions City for Spoliation of E-mails

DMAC LLC, et al., v. City of Peekskil, et al., 2012 U.S. Dist. LEXIS 138605 (S.D.N.Y. Sept. 17, 2012).  On September 17, 2010, Magistrate Judge Yanthis of the Southern District of New York sanctioned the City for spoliation of electronically stored information (“ESI”) after it negligently destroyed e-mails related to the case. In DMAC LLC […]

Court Shifts Costs of Discovery to Plaintiffs Prior to Class Certification

Boeynaems v. LA Fitness Int’l, LLC, Nos. 10-2326, 11-2644, 2012 WL 3536306 (E.D.Pa. Aug. 16, 2012). In a case of first impression for the U.S. District Court in the Eastern District of Pennsylvania, federal Judge Baylson shifted the costs of e-discovery to the Plaintiffs before deciding whether to grant a class certification. In Boeynaems, the […]

Are Litigation Hold Letters Discoverable?

Tracy v. NVR, Inc., 2012 U.S. Dist. LEXIS 44350 (W.D.N.Y. Mar. 26, 2012) To answer that question briefly: typically, no litigation hold letters are not discoverable. However, there is catch, which the Western District of New York (“WDNY”) has recently adopted. On March 26, 2012, the WDNY adopted the Major Tours, Inc.principle that litigation hold […]

New York Continues to Permit Discovery of Social Media

With Thanksgiving (and the biggest party night of the year – Thanksgiving Eve) this week, I figured it would be a good time to address social media once again, since I know that many people will take photos and post them all over the Internet.  Before you upload those photos to Facebook, I wanted to […]

S.D.N.Y. Refuses to Enforce European “Mail Interception Order” due to U.S. Privacy Concerns

 In Re Dr. Jürgen Toft, 2011 Bankr. LEXIS 2733 (Bankr. S.D. N.Y. July 22, 2011) On July 22, 2011, the Bankruptcy Court for the Southern District of New York refused to enforce an order from a court in Germany for e-mail accounts stored on the servers of two internet service providers (“ISPs”) located in the […]