On July 13, 2005 the Securities and Exchange Commission (“Commission”) issued an Order in connection with the alleged failure of UBS Securities LLC (“UBS”) to preserve email. The Commission accepted an Offer of Settlement and UBS consented to entry of the Order without admitting or denying any findings of wrongdoing. Read More
People v. Jiang, 33 Cal.Rptr.3d 184 (Cal. Ct. App. 2005)
Weibin Jiang (“Jiang”), a native of China with limited English language skills, was convicted and sentenced to state prison for 19 years and 4 months in connection with sexual offenses against A., an acquaintance. The trial court improperly denied Jiang’s motion to suppress his statement to police (Miranda warnings were not adequately translated and conveyed), and his conviction was reversed. In addition, the trial court erred in finding that materials prepared by Jiang for Jiang’s attorneys and stored on his employer-issued laptop computer were not subject to the attorney-client privilege. Read More
J.C. Associates v. Fidelity & Guaranty Ins. Co., 2005 WL 1570140 (D.D.C. July 1, 2005)
Plaintiff alleged that defendant breached the terms of an insurance policy by refusing coverage in connection with plaintiff’s use of a pesticide on a property managed by plaintiff. Defendant responded that the “absolute pollution exclusion” applies such that it need not provide coverage. Discovery disputes developed, including a dispute over how defendant must search and produce other claims files in response to a request seeking information related to interpretation of the exclusion. Read More
The Monday, June 27, 2005 issue of The National Law Journal reports instant messaging (IM) carries its own set of legal implications for in-house law departments. Although many people think of IM as a fleeting conversation, similar to a telephone call, it’s legally considered a document, and is subject to the same retention policies that cover other business records. Click here for the full text of the article [subscription required.]
The Secure Access to Justice Act (H.R. 1751) was introduced by Rep. Louie Gohmert (Republican from Texas) on April 21, 2005. It was referred to the House Committee on the Judiciary followed by the Subcommittee on Crime, Terrorism, and Homeland Security where hearings were held as recently as June 30. It proposes amending Title 18 of the United States Code to protect judges, prosecutors, witnesses, victims, and their family members, and for other purposes. Read More
During the New York State Bar Association’s Annual 2005 Meeting of the Commercial and Federal Litigation Law Section, a panel of attorneys and judges discussed current issues in connection with electronic discovery and differences in state and federal courts.
Federal and New York State electronic discovery cases were noted, with substantial discussion centered upon Judge Scheindlin’s Zubulake decisions. Panelist comments covered topics including spoliation, litigation holds, cost shifting, rule changes, and procedural matters.
A transcript of the discussion, published in NYLitigator, can be found here.
Galvin v. Gillette Co., 2005 WL 1476895 (Mass. Super. May 19, 2005) (Unpublished)
On January 27, 2005, The Proctor & Gamble Company (“Proctor & Gamble”), acting through Aquarium Acquisition Corp., agreed to merge with The Gillette Company (“Gillette”). William Francis Galvin, Secretary of the Commonwealth of Massachusetts (“the Secretary”) has certain statutory authority allowing him to investigate fairness opinions issued by UBS and Goldman, Sachs in support of the merger. The Secretary opened an investigation and caused a subpoena duces tecum to be served on Gillette. When Gillette refused to comply, he sought an order forcing compliance. The subpoena was found too far reaching given that the investigation was supposed to address whether the fairness opinions were fraudulent. The court quashed the subpoena without prejudice. See Galvin v. Gillette Co., 19 Mass.L.Rptr. 291 (Mass.Super, April 28, 2005). Read More
Getty Properties Corp. v. Raceway Petroleum, Inc., 2005 WL 1412134 (D.N.J. June 14, 2005)
In 1992, Defendant Third-Party Plaintiff Raceway Petroleum, Inc. (“Raceway”) leased a property from Plaintiff Getty Properties Corp. and Third-Party Defendant Power Test Realty, Co., Ltd. (collectively, “Getty”). The property had been used for a gas station by Getty from 1975 to 1992. Raceway began operating its gas station on the site in 1993. Both acknowledged in 1992 that the property was contaminated with gasoline, and Getty was to be responsible for the remediation of any contamination existing prior to the occupation by Raceway. In 1996, the New Jersey Department of Environmental Protection noted a gasoline discharge at the property. Getty sued Raceway, alleging that Raceway was responsible for contamination in September 1999. Raceway filed a counterclaim, and motions were filed seeking sanctions for discovery abuses. Read More
The Standing Committee on Rules of Practice and Procedure today approved the amendments submitted by the Civil Rules Advisory Committee addressing discovery of electronically stored information.
The proposed text of each rule was approved without change; some changes were made to the committee notes. The entire package of amendments will be posted here when available.
Further approval is still necessary before the rules go into effect. The Judicial Conference will consider the package at its September 20, 2005 meeting. Then, the Supreme Court will consider it for promulgation (probably by May 1, 2006). An effective date of December 1, 2006 is expected.
Andrew Barton et al. v. United States District Court for the Central District of California, 2005 WL 1355481 (9th Cir. 2005)
A law firm posted a questionnaire on the Internet to gather information regarding class members for potential litigation against SmithKline Beecham Corporation (“SmithKline”). The action under consideration was for injury related to use of the anti-depressant medication Paxil. The firm decided to pursue the matter, and SmithKline sought production of completed questionnaires in order to compare responses to plaintiffs’ deposition testimony. U.S. Judge Mariana Pfaelzer held that confidentiality was waived via disclaimers on the questionnaires, despite the questionnaires constituting preliminary consultations with attorneys which are normally privileged. She ordered production of the four trial plaintiffs’ questionnaires, and plaintiffs sought a writ of mandamus to reverse this decision arguing that the questionnaires are subject to attorney-client privilege. Read More
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