Authored By: Gina Barbieri

Citation: Rubin v. Alamo Rent-A-Car, 593 N.Y.S. 2d 284 (2nd Dept. 1993)

Employee/Employer Implicated: Owner/Executive, Employee, Patient

e-Lesson Learned: Nonmedical information, not related to the diagnosis or treatment of patients is not protected under the physician-patient privilege in N.Y. C.P.L.R. 4504(a)

Tweet This: How dare that judge order you to incriminate yourself and pay for it! You shouldn’t have to pay for it...

In most personal injury cases it is not unusual for documents to be granted a protective order based upon physician-patient privilege. However, the courts are reluctant to offer protection of materials, which are key to the defense of a lawsuit. This is particularly true when parties to litigation are attempting to claim privilege for documents that would not naturally fall under that protection. The court is weary of medical professionals who abuse this privilege for their own financial gain. Sindey Rubin and his Wife Lucille Munion, appealed an order from the Supreme Court of Nassau County which directed them to release their medical practice’s financial records to opposing counsel. Mr. Rubin alleged he was struck and seriously injured by a vehicle rented from the defendant, Alamo Rent-A-Car. After initiating a lawsuit to recover for his personal injury, Rubin amended his complaint to include his wife as a party to the suit and to include damages for loss of business income as a second cause of action.

Authored By: Eric Abes

Citation: Costantino v. Herzog, 203 F.3d 164 (2nd Cir. 2000)

Employee/Employer Implicated: Judges

e-Lesson Learned: Staying dynamic, some courts are willing to expand rules in the face of new technologies.

Tweet This: Staying dynamic, some courts are willing to expand rules in the face of new technologies.

Law must be stable, and yet it cannot stand still. This quote from Roscoe Pound is the bare essence of this case and the primary challenge to the law in the face of new technologies. As written, the Federal Rules of Evidence provide an exception to the hearsay rule at 803(18) for “statements contained in published treatises, periodicals, or pamphlets.” But what happens to this rule when those same statements are not confined to paper but appear in other media forms such as audio or video files? What happens is the stable law has to be given a nudge forward by the courts so that it does not stand still. Our legislative system is designed to be slow. Great problems require slow and meticulous deliberation but in the end decisions have to be reached one way or the other.

Authored By: Drew Manary

Citation: Radian Asset Assurance, Inc. v. College of Christian Brothers of New Mexico (2010).

Employee/Employer Implicated: Plaintiff (Radian), defendant (College of Christian Brothers of New Mexico) and subsequent owner of defendant’s assets, Laureate Education, Inc.

e-Lesson Learned: If a defendant is compelled to produce unreviewed ESI, defendant shall have to pay for production but plaintiff shall pay for review. Additionally, if privileged information is transferred inadvertently from defendant to plaintiff, the defendant has burden of proving the information was privileged.

Tweet This: Forcing D's to pay for ct-ordered production isn't unreasonable, nor making them est. the inadvertent transf of privl. information

Radian initially filed suit against College of Christian Brothers in September 2009. Two days the filing, defendant (“College”) sold its assets to Laureate Education. As early as March 2010, College subpoenaed Laureate Education for materials obtained in the sale. In August 2010, College received 135 hard drives, 52 backup tapes, and an additional hard drive with information from Laureate Education’s current server. Radian and College had been to court several times over ESI. In September 2010, the Court ordered that College search and produce email from certain tape backups as well as producing 1,219 files Radian had assessed as relevant from Laureate Education’s current hard drive. The dispute in the present matter is whether College should be forced to restore the tape backups and review them at their own expense and whether doing otherwise constitutes unreasonable cost-shifting. Radian makes five arguments in support of this proposition.

Authored By: Jessica K. Rauskolb

Citation: F.T.C. v. First Universal Lending, LLC, 2011 WL 673879 (S.D.Fla.)

Employee/Employer Implicated: Outside Counsel, Miscellaneous

e-Lesson Learned: If you scrub the data off your computers, you can’t blame the other side for destruction of evidence. Your adversary does not have to make sure that you have information to establish your defense.

Tweet This: No Bad Faith? No sanctions. Especially not where the accused party never had control of the later scrubbed PCs

Don’t blame others for your mistakes! If you are given permission by a court appointed receiver to scrub relevant data off your computers to eventually sell them, you can’t blame the other side for spoliation of relevant data that you need to establish your defense - especially not if the other side never had control over the computers with the relevant data! You will not be able to succeed, just ask the defendants in F.T.C. v. First Universal Lending, LLC. In F.T.C. v. First Universal Lending, the F.T.C. investigated the defendants for their mortgage modification practices by alleging that defendants had violated the Federal Trade Commission Act and that defendants had acted in violation of the Telemarketing Sales Rule. For the duration of the investigation, the court appointed a temporary receiver who took control of defendants’ business premises.

Authored By: Michael Paragano

Citation: Cache La Poudre Feeds LLC v. Land O’Lakes, Inc., F.244 R.D. 614 (D. Colo. 2007)

Employee/Employer Implicated: Outside Counsel, Misc. Employee

e-Lesson Learned: The duty to preserve evidence is not necessarily dependent on the tender of a preservation letter, but the duty to preserve must be predicated on something more than just mere discontent.

Tweet This: Be Clear That You Are Suing, and The Other Side Will Have to Preserve!

The duty to preserve evidence is normally triggered by the filing of a lawsuit. However, the duty may arise even earlier when there is a mere “possibility” of a lawsuit. Problems arise because the legal system has grown more and more every day and lawsuits are always a “possibility”. Thus, courts have found that when there is an unequivocal notice of litigation, the party absolutely has a duty to preserve but there must be more than just a mere “possibility” of a lawsuit for the duty to be triggered. Courts will determine when that duty arises based on the facts of each individual case.

Authored By: Christopher D. Dize

Citation: Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)

Employee/Employer Implicated: Clients and Attorneys

e-Lesson Learned: If an attorney agrees to return or destroy the other party’s confidential information at the close of litigation, the New York Appellate Division will hold him to it, even if it becomes “too costly” to follow through.

Tweet This: NY Appellate Division Rejects Modification of Confidentiality Order

When counsel for plaintiff Oxxford Information Technology entered into a confidentiality stipulation that all information exchanged during discovery would either be returned to the original party or destroyed, they never imagined that it would be so costly to get rid of the information. After the matter settled, however, Oxxford's counsel learned that they had "inadvertently backed up defendants' information onto numerous back-up tapes to their law firm's computer system." Ironically, it was Oxxford's counsel who had originally demanded the core business secrets that ended up on the tapes.

Authored By: Fernando M. Pinguelo

Tweet This: MISSION POSSIBLE: #OpMonsanto

In a recent Anonymous hacking mission dubbed #OpMonsanto, the hacker group attacked Monsanto, an international agricultural corporation by hacking into Monsanto’s system and releasing data concerning over 2,500 employees and connections. Anonymous also took down Monsanto’s mail server and web assets and says it plans to create a Wikipedia page to store and organize the stolen information. Anonymous has also released a statement proclaiming the soon-to-be targets for an operation called “Project Tarmeggedon.” Anonymous is using this mission to victimize the companies involved in the Alberta, Canada oil sands development because of concerns that extracting oil from sand particles can be extremely damaging to the environment. Some of these targets include: Royal Bank of Scotland, Imperial Oil, Exxon Mobil, ConocoPhillips, and Canadian Oil Sands Ltd.

Authored By: Fernando M. Pinguelo and Bradford W. Muller

e-Lesson Learned: Small Businesses Who Get "Hacked" Must Act – Now.

Tweet This: http://ellblog.com/?p=2449 http://ellblog.com/?p=2449">Small Businesses Who Get "Hacked" Must Act – Now --> http://ellblog.com/?p=2449

If you have a credit card or bank account, then you may have received an ominous e‐mail alert discussing the data breach that recently occurred at Epsilon, a third‐party vendor which provides marketing services to many companies. Luckily, the stolen information appears to have been limited to the names and e‐mail addresses of only some customers. Apparently, no account numbers or other confidential information was compromised. Nevertheless, names and e‐mail addresses are powerful tools for certain types of cybercriminals known as "phishers" who use social engineering to target potential victims and lure them into exposing confidential financial information. Users of the Sony Playstation Network may not be as lucky, as upwards of 10 million credit card accounts may have been accessed by hackers in the recent network attack.

Authored By: Fernando M. Pinguelo Norris, McLaughlin & Marcus, P.A., and Stacey A. Hyman, Drinker Biddle & Reath LLP

Tweet This: Apple v. Amazon.com – The War for "App" Dominance Advances (Bloomberg Law) http://ellblog.com/?p=2439

Apple’s recent lawsuit against Amazon opens a new front in the war for app dominance. Apple, it seems, could not abide Amazon’s launch of its own mobile app marketplace – Amazon Appstore. Yet this was not the first shot fired in this battle, as Microsoft last year opposed Apple’s attempt to register the APP STORE brand name with the U.S. Patent and Trademark Office. So, why all this attention? Why are the app "super powers" – Amazon, Apple, RIM/Blackberry, Google, Microsoft – shifting their strategy from development and consumer marketing to the legal battlefield?

Authored By: Phil Ryan

Citation: Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., 270 F.R.D. 223 (D. Md. Oct. 28, 2010)

Employee/Employer Implicated: Miscellaneous

e-Lesson Learned: When faced with objections to Rule 34 production requests, the proper response is to meet and confer with opposing counsel and then, if necessary, seek an order from the court. Parties should not resort to subpoenas to compel discover.

Tweet This: When faced with discovery objections, don’t put the subpoena-cart before the discovery-horses!

So you’re in the discovery stage of litigation and you make a request but the other side won’t produce. No problem you think, I’ll just subpoena ‘em. WRONG. In Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., Patrick Richardson filed a complaint against the Sexual Assault/Spouse Abuse Research Center (“Research Center”) alleging intentional infliction of emotional distress, tortuous interference with Richardson and his ex-wife Sheri Richardson’s divorce proceedings, and gender discrimination in violation of the Fourteenth Amendment and the Maryland State Constitution.