Personal Jurisdiction established by way of Email transmission
June 2nd, 2009 Filed Under E-discovery, legal news
Most will admit that technology has made business operations a much easier and more streamlined process. However, there are some drawbacks associated with the newfound convenience. Some judges in New York have ruled that even though a litigant has not stepped foot in the state, the state can exercise personal jurisdiction over a defendant where the nonresident defendant sent emails to a resident plaintiff in an effort to ease their business dealings. A New York judge ruled that such electronic transmissions were sufficient to establish personal jurisdiction over the defendant. Other courts in New York have ruled for and against the sufficiency of email, telephone, or facsimiles in establishing personal jurisdiction. However, in Deutsche Bank Sec., Inc. v. Montana Bd. of Inv. , 7 N.Y.3d 65, 71 (2006), the court ruled in favor. See case summary below.
New York
Under New York’s long-arm statute, CPLR § 302(a)(1), a court may exercise jurisdiction over a non-domiciliary who transacts “any business within the state or contracts anywhere to supply goods or services in the state.” Known as the “single act statute,” the Court of Appeals has clarified that “proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Deutsche Bank Sec., Inc. v. Montana Bd. of Inv. , 7 N.Y.3d 65, 71 (2006).
In Deutsche Bank , the Court of Appeals noted that historically New York courts have “recognized CPLR 302(a)(1) long-arm jurisdiction over commercial actors and investors using electronic and telephonic means to project themselves into New York to conduct business transactions.” Id. Consistent with that observation, the court held that the defendant, “a sophisticated institutional trader that entered New York to transact business” via the Bloomberg Messaging System (an instant message service), should reasonably expect to defend its actions in New York. Id. at 71-72. In reaching its decision that there was jurisdiction over the defendant, the court accounted for the fact that the defendant had engaged the plaintiff in a series of trades. “Where a defendant deals directly with the broker’s New York office by phone or mail or e-mail in a number of transactions instead of dealing with the broker at the broker’s local office outside New York, long-arm jurisdiction may be upheld.” Id. at 72.
Outside New York
The Fourth Circuit Court of Appeals recently affirmed a dismissal for lack of personal jurisdiction over two nonresident defendants, on the determination that a handful of emails and telephone communications alone did not satisfy minimum contacts with the state of Virginia. Consulting Engineers Corp. v. Geometric Ltd. , _ F.3d _, 2009 WL 738165 (4th Cir. Mar. 23, 2009). Defendant Structure Works, which is a Colorado corporation, had limited contact with the plaintiff, comprised of four telephone calls and twenty-four emails, only eight of which were sent by Structure Works. Id. at 4. Although the plaintiff argued that Structure Works had “intentionally directed electronic communications into Virginia with the clear intent of transacting business there,” the court rejected that broad application and looked instead at “the quality and nature of the contacts” to evaluate whether they met the standards for minimum contacts. Id. The court held that even had Structure Works “reached out” to plaintiffs via email in Virginia, that fact, coupled only with the emails and telephone calls, was insufficient to establish personal jurisdiction.
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Federal Rules of Civil Procedure Amendments
April 16th, 2009 Filed Under E-discovery, FCRP 26(c), legal news
Litigation readiness by corporations is a necessity of operating effectively in todays business environment. The following is a list of some of the recent amendments to FCRP that every prudent general counsel should know.
Rule 16: Pretrial Meetings
Requires all parties to meet and discuss a discovery plan and evaluate the preservation and production of ESI.
Rule 26(a): Duty to Disclose
Requires parties to identify all sources of ESI that may be relevant by category and location.
Rule 26(b): Discovery Scope and Limits
Every organization has “a duty to disclose all potentially relevant sources of information” to the courts as soon as they “reasonably anticipate” litigation unless these sources are “not reasonably accessible because of undue burden or cost.”
Rule 26(f): Planning for Discovery
Requires opposing parties to meet before the trial, or at least 21 days before a scheduled conference to discuss the nature and basis of their claims in an attempt to speed the possibilities of a prompt settlement.
Rule 34(a): Producing Documents
Electronically stored data – including email – is one of the types of records which can be requested for inspection by opposing parties.
Rule 34 (b): Procedure and Form of Production
As a part of the discovery process, the responding party should provide a “proposed plan for discovery” and produce all requested information, including ESI, in a form that is “reasonably useable.”
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2008: Five Groundbreaking cases In Ediscovery
December 15th, 2008 Filed Under E-discovery, FCRP 26(c), legal news
This is one writer’s opinion, what’s yours?
5) Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008)
If there ever was an opinion written by a judge to make a larger societal point, Mancia was certainly it. Judge Paul Grimm, who’ll appear on this list in another slot as well, has clearly taken the mantle from Judge Scheindlin as the leading electronic discovery jurist. He’d heretofore authored a number of significant opinions in this area, including Hobson and Thompson. Now, in Mancia he used a garden variety discovery dispute, which was typically rife with boilerplate objections and other obstreperous tactics, to highlight the Sedona Conference’s Cooperation Proclamation.
The lasting takeaway from the opinion is the notion that “[c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct electronic discovery, and sanctioned lawyers and parties for failing to do so.” To support this notion he cites the Sedona Conference Proclamation and the little used FRCP 26(g). This opinion is noteworthy because it gives precedent to bolster the Sedona initiative and should provide a ready citation for all those counsel who aren’t getting the level of cooperation they need from the opposition. It remains to be seen if other judges will follow suit, but this could be the beachhead for a more cooperative electronic discovery process in 2009 and beyond.
4) Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)
Flagg highlights the growing need to reconcile the electronic discovery landscape, which typically focuses somewhat myopically on email, with the larger informational trends which are now categorized by the use of blogs, social networking sites, instant messaging, and text messaging. Flagg was one of the first to determine text messages (e.g., messages exchanged among certain officials and employees of the City of Detroit via city-issued text messaging devices) were discoverable under the standards of FRCP 26(b)(1). The holding further demonstrated the challenges of conducting electronic discovery across information systems that mix personal information with business communications. This type of information commingling will continue to escalate, causing significant long term electronic discovery challenges due to thorny privacy, privilege and policy implications.
3) Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008)
Rhoads is one of the first cases post Federal Rule of Evidence (FRE) 502, which recently created a national standard (versus the previous split in jurisdictions) and now states a “middle ground” for the determining of inadvertent disclosure during electronic discovery. The key provision is (b)(2) which provides protection only if “the holder of the privilege or protection took reasonable steps to prevent disclosure.” So, Rhoads took that “reasonableness” question head on in a scenario where the plaintiff Rhoads admittedly (yet inadvertently) produced over eight hundred privileged, electronic documents. The decision is significant because it used the five-factor test stated in Fidelity, but put an undue weighting on the final test which was: “whether the overriding interests of justice would be served by relieving the party of its errors.” This approach potentially threatens the development of sound case law that will be necessary to help the deployment of FRE 502 into practice because it casts too much uncertainty with its weighting of “fairness” (a problematically vague notion) in the analysis. It will be interesting to see if/how this approach is subsequently adopted as we enter the New Year.
2) In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)
Seroquel is significant because it set out very clear guidelines for electronic discovery behavior that, while perhaps commonplace, is now deemed unacceptable and sanctionable under FRCP 37. Stating that “it is not appropriate to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence” the court went on to note specific failings by the producing party, including (i) the use of a plainly inadequate key word search terms, (ii) the failure to provide attachments, (iii) deficient efforts in preventing/solving technical problems and (iv) inadequate quality control oversight. This type of holding makes it clear that the bar for electronic discovery conduct is rapidly increasing, such that it is likely to see more frequent malpractice actions against counsel if and when things go wrong.
1) E-Discovery Case of the Year: Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008)
Judge Grimm’s hallmark opinion has had the legal community buzzing over the past several months and the reason appears pretty straight forward. In Victor Stanley Grimm builds on the holdings in Seroquel, O’Keefe and Equity Analytics, to boldly cast doubt on a practice so routine that it’s literally shocked the legal community into reevaluation:
(”[D]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) . . . .”The notion that electronic discovery search is beyond the ability of most attorneys has caused tremors within the litigation support community who had a long history of blindly receiving keywords from counsel, running them and turning back over the results - often blissfully unaware of the extent to which those keyword searches actually located relevant information. Victor Stanley’s analysis of the “reasonableness” of search protocols also has impact on the FRE 502 and therefore cements its place alongside other e-discovery “must reads” such as Zubulake and Morgan Stanley.
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Eight ways to Prepare for E-discovery in a pinch
December 8th, 2008 Filed Under E-discovery, legal news
LTN gives eight ways to prepare for e-discovery when you are under the gun.
1. Apply the five Ws of journalism (who, what, when, where, and why) to get a handle on your core preservation duties. Immediately list the people, events, time intervals, business units, records, and communications central to the case.
a. List apparent key players (don’t forget assistants who, for example, handle the boss’ e-mail, and significant third parties over whom your client has a right of direction or control).
b. Hone in on what happened — both from your perspective and theirs — and posit what ESI sheds light either way, or tends to explain or challenge the key players’ actions and attitudes.
c. Decide what dates and time periods are relevant for preservation. Is there a continuing preservation obligation going forward?
d. Determine which business units, facilities, systems, and devices most likely hold relevant ESI.
Your lists will change over time. But a focused, thoughtful, and well-documented effort that is diligently implemented will be more defensible, less costly, and invariably more effective than a scattershot approach. Don’t delay. It needn’t be flawless right now — reasonable will do.
2. Focus on the fragile first. What potentially relevant ESI has the shortest shelf life and requires quickest action to preserve while it’s still reasonably accessible? Voicemail, web mail and text messaging, computers requiring forensic examination, web content, and surveillance video are examples of ESI that tend to be rapidly discarded or overwritten. Grabbing e-mail of key custodians before it migrates to backup media can save a bundle and accelerate search and processing.
3. Protect employees from themselves. People who wouldn’t dream of shredding a paper record will purge ESI with nary a thought. In the blink of an eye, history will be reinvented as employees delete overly candid e-mail and commingled personal communications. The results are often catastrophic and always costly. Assess whether those entrusted with preservation can be trusted to perform and don’t rely on custodial preservation alone when its failure is reasonably foreseeable.
4. Holds should be instructional, not merely aspirational. Too many lawyers draft legal hold instructions designed to protect lawyers. Broadly disseminating a form hold directive saying “keep everything” isn’t helpful and will come back to haunt you at deposition. “I got the memo,” they say, “but I didn’t know where to start.”
Tell custodians what to do and how to do it. Give examples that inform and deadlines that demand action. Get management buy-in for the time needed to comply. Better a handful of key players take the hold directive seriously than dozens or hundreds of minor players wink at it. [More…]
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Is FRE 502 all it’s cracked up to be? Not so much
December 4th, 2008 Filed Under E-discovery, Federal Rule of Evidence 502, legal news
As pointed out by one author, FRE 502 may not the panacea to ediscovery costs that many herald it to be. See below the three main problems that FRE 502 does not address and therefore makes the new rule.
Federal Rule of Evidence 502, enacted on Sept. 19, 2008, has been heralded as a significant development which “will effectively limit the skyrocketing costs of discovery.” The Rule and its promotion as a cost-saving panacea have no doubt raised expectations among clients and courts alike.
As a rule of evidence, FRE 502 is significant because it (a) resolves conflicts among federal courts concerning the effect of voluntary and inadvertent productions of privileged material and (b) imposes federal evidentiary rules on state courts. FRE 502 will not meaningfully reduce the costs of discovery, particularly in cases involving huge e-discovery obligations, related investigations by state government entities, and “asymmetric” discovery obligations (where one party has to produce a tremendous number of documents and the other does not) for three reasons:
- The touting of FRE 502 as a cost-savings measure is based on the erroneous premise that mitigating the risk of waiver will substantially reduce e-discovery costs.
- To avoid waiver, litigants must take “reasonable steps” to avoid inadvertent disclosures and “reasonable steps” to rectify productions errors, an ambiguous standard that is expensive to meet.
- As acknowledged by its drafters, FRE 502’s ability to mitigate the risk of waiver requires that state courts be bound by the Rule. Its so-called “controlling effect” provisions may not be constitutional. Until, and unless, FRE 502’s constitutionality is established, it will provide little assurance to litigants that state attorneys general and private litigants will be unable to establish waiver in state court proceedings.
OTHER FEARS DRIVE DISCOVERY COSTS
FRE 502 is based on the premise that litigants spend millions of dollars on privilege review, which they would not otherwise spend, out of fear that waiver of attorney-client privilege or work-product protection will result from the inadvertent production of protected documents. Thus, the scope and cost of privilege review can be reduced if the risk of waiver is minimized.
While avoiding waiver is important, the practice of reviewing potentially privileged documents on a document-by-document basis is motivated primarily by the desire to prevent disclosure of the protected information contained in the reviewed documents to adversaries. Avoiding waiver is a worthwhile goal, but the risk of disclosure, itself, warrants close scrutiny of potentially privileged documents.
Even if a document can be clawed back, the protected information in the document cannot be retrieved once it is viewed by an adversary. For this reason, the consensual disclosure of potentially privileged documents pursuant to “quick peek,” “claw back,” and non-waiver agreements is virtually inconceivable in a major litigation, where counsel has not first reviewed the documents for privilege.
Clients willing to allow adversaries access to privileged documents and work-product may save some money, but the costs of discovery in major cases will still be extremely high.
The high costs of e-discovery are driven by the sheer volume of documents and e-data that must be retrieved and reviewed because they are potentially “relevant” pursuant to Rule 26 of the Federal Rules of Civil Procedure. Large scale document production in the electronic age requires an integrated approach to review large numbers of documents, often on a document-by-document basis, for responsiveness, confidentiality, substantive analysis and the need to redact trade secrets, privacy information and other sensitive information.
Read the remainder of the article here.
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Ediscovery Boot Camp
December 3rd, 2008 Filed Under E-discovery, legal news
Georgetown law is hosting a 4-day ediscovery bootcamp. Cost to you…… a mere $2750.
E-Discovery Training Academy February 09 - February 13, 2009
As a multibillion dollar industry, electronic discovery has become one of the largest litigation expenses for law firms and companies. Despite its growing significance, lawyers and litigation support professionals frequently find themselves unprepared to successfully handle the myriad issues surrounding the discovery of electronically stored information (ESI). Not only do the attorneys need to have an understanding of the rules and procedures, but so do the company executives, IT personnel and the litigation support professionals who work closely with them on a daily basis.
Georgetown Law is the first law school to provide you with the opportunity to gain the essential knowledge and skills necessary you will need to help lead or participate on your e-discovery team. During this intense one-week session, instruction will be provided by some of this country’s leading e-discovery experts focusing on the nexus between the law and the technology. You will benefit from a rigorous curriculum that includes daily readings, hands-on exercises and proven strategic tips. At the conclusion of this specially crafted training program, you will return to your office with the practical skills and comprehensive knowledge to help guide your client or company through the many e-discovery challenges ahead.
Register now to ensure you have a seat at this inaugural event. Due to the interactive nature of the Academy, attendance is limited to 50 participants.
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SEC steps up its enforcement actions as it defines its priorities
November 26th, 2008 Filed Under E-discovery, legal news
One thing is going up in this faltering economy, the number of enforcement actions being initiated by the SEC. The number of SEC enforcement actions are at an all-time high. By the close of this fiscal year the SEC had brought a total of 671 enforcement actions in this year alone. Insider trading cases are up 25%, market manipulation related cases up 45%, and there are at least 50 pending sub-prime related investigations. Insider trading and market manipulation cases have reached record highs. In the SEC’s Fiscal 2008 Enforcement Results there is a clear upward trend in investigations and enforcement actions. Further, with the new Congress promising to increase regulation of the financial markets it is not implausible that these numbers will increase even more in 2009. In a recent statement issued by the SEC, it’s evident that the regulatory body will require much more information from corporations in a much shorter turn-around time. Three of the goals that the SEC outlined as its priorities are:
- Aggressively Combating Fraud and Market Manipulation Through Enforcement Actions
- Taking Swift Action to Stabilize Financial Markets
- Enhancing Transparency in Financial Disclosure
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The Glory Days are Over….we are now entering the Renaissance of litigation practice
November 16th, 2008 Filed Under E-discovery, legal news
Remember in the glory days when corporations would shrug off litigation cost as a possible cost of doing business rather than a definite cost of doing business. Corporate legal departments have begun to recognize the need to be more proactive in meeting regulatory and legal requirements. Such departments are also looking for cost-effective ways of meeting the litigation demands of the corporation.
The current financial crisis has been an additional wake up call for many who have not yet got their information management house in order. A poorly managed information system can reak havoc with risk management causing litigation cost to rise three or four times the amount it would be if there is an effective, efficient system in place prior to the litigation. With the increasing cost and decreasing timelines of most litigation, it is critical that a corporation has a rapid response system in place for assessing risk, collecting data, and processing and reviewing information. Run-a-way e-discovcery can make a huge dent in a corporation’s budget. However, there is a way around it. The solution is planning for a litigation before it hits.
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ABA Opines on Outsourcing
August 15th, 2008 Filed Under Outsourcing, legal news
The ABA has recently issues an opinion on billing, ethics, and legal services rendered in the world of outsourcing.
Formal Opinion 08-451 August 5, 2008 Lawyer’s
Obligations When Outsourcing Legal and Nonlegal Support Services
A lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client under Model Rule 1.1. In complying with her Rule 1.1 obligations, a lawyer who engages lawyers or nonlawyers to provide outsourced legal or nonlegal services is required to comply with Rules 5.1 and 5.3. She should make reasonable efforts to ensure that the con- duct of the lawyers or nonlawyers to whom tasks are outsourced is com- patible with her own professional obligations as a lawyer with “direct supervisory authority” over them. In addition, appropriate disclosures should be made to the client regarding the use of lawyers or nonlawyers outside of the lawyer’s firm, and client consent should be obtained if those lawyers or nonlawyers will be receiving information protected by Rule 1.6.
The fees charged must be reasonable and otherwise in compliance with Rule 1.5, and the outsourcing lawyer must avoid assisting the unauthorized practice of law under Rule 5.5. 1 Many lawyers engage other lawyers or nonlawyers, as independent contractors, directly or through intermediaries, on a temporary or an ongoing basis, to provide various legal and nonlegal support services. Outsourced tasks range from the use of a local photocopy shop for the reproduction of documents, to the retention of a document management company for the creation and maintenance of a database for complex litigation, to the use of a third-party vendor to provide and maintain a law firm’s computer system, to the hiring of a legal research service to prepare a 50-state survey of the law on an issue of importance to a client, or even to the engagement of a group of foreign lawyers to draft patent applications or develop legal strategies…….
1. This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through February 2008. The laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are controlling. Page 2 prepare motion papers in U.S. litigation. The outsourcing trend is a salutary one for our globalized economy. Labor costs vary greatly across the United States and throughout the rest of the world. Outsourcing affords lawyers the ability to reduce their costs and often the cost to the client to the extent that the individuals or entities providing the outsourced services can do so at lower rates than the lawyer’s own staff. In addition, the availability of lawyers and nonlawyers to perform discrete tasks may, in some circumstances, allow for the provision of labor-intensive legal services by lawyers who do not otherwise maintain the needed human resources on an ongoing basis. A small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively. Outsourcing, however, can enable that firm to represent a client in such a matter effectively and efficiently, by engaging additional lawyers to conduct depositions or to review and analyze documents, together with a temporary staff of legal assistants to provide infrastructural support.
There is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” as required by Rule 1.1. Comment [1] to Rule 1.1 further counsels: In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. There is no unique blueprint for the provision of competent legal services.
Different lawyers may perform the same tasks through different means, all with the necessary “legal knowledge, skill, thoroughness and preparation.” One lawyer may choose to do all of the work herself. Another may delegate tasks to a team of subordinate lawyers and nonlegal staff. Others may decide to outsource tasks to independent service providers that are not within their direct control. Rule 1.1 does not require that tasks be accomplished in any special way. The rule requires only that the lawyer who is responsible to the client satisfies her obligation to render legal services competently. However, Rules 5.1 and 5.3 impose additional obligations on lawyers who have “direct supervisory authority” over other lawyers and nonlawyers. Rule 5.1(b) states that “[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Correlatively, Rule 5.3(b) requires lawyers who employ, retain, or associate with nonlawyers to “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” [More…]
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The Sedona Conference working paper on E-Discovery of Inaccessible Information
July 28th, 2008 Filed Under E-discovery, legal news
Recently the Sedona Conference, of which this writer is a member, released its working paper titled Preservation, Management and Identification of Sources of information that are Not Reasonably Accessible. A summary of the guidlines are as follows:
Guideline 1. Where litigation is anticipated but no plaintiff has emerged or otehr considerations make it impossible to initiate a dialogue, the producing party make preservation decisionsby a process conforming to that set forth here.
Guideline 2. As soon as feasible, preservation issues should be openly and coopertatively discussed in sufficient detail so that parties can reach mutually satisfactory accomodation and also evaluate the need, if any, to seek court or assistance.
Guideline 3. In conjunction with the initial discussions or where appropriate in response to discovery request requests, parties should clearly identify the inaccessible sources reasonably related to the discovery or claims which are not being searched or preserved.
Guideline 4. A party should exercise caution when it decides for business reasons to move potentially discoverable information subject to a preservation duty from accessible to less accessible data stores.
Guideline 5. It is acceptable practice, in the absence of an applicable preservation duty, for entities to manage their information in a way that minimizes accumulations of inaccessible data, provided that adequate provisions are made to accomodate preservation imperatives.
See PDF version of guidelines here.
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