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. [...]
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Author Archives: Bruce V. Miller
Court Rules Against Imposing Sanction of Dismissal Because Plaintiff’s Conduct Did Not Rise to the Level of a Willful Violation
January 14, 2013 – 7:29 pm
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
November 27, 2012 – 4:11 pm
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
November 1, 2012 – 5:16 pm
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
September 27, 2012 – 6:51 pm
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?
April 23, 2012 – 5:27 pm
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
November 25, 2011 – 10:52 pm
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
August 19, 2011 – 7:17 pm
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 [...]