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The latest report in the In re Opioid litigations is a sharp reminder not to fall short in your disclosure obligations

When it rains it pours. The ongoing saga of disclosure disputes in the many In re Opioid litigations started a new chapter with the release of a Report (referenced below) by former Justice Maltese, acting as Referee in a New York state court Opioid case.

The Report, which sketches out a series of discovery mishaps and omissions stretching across multiple courts and cases, as well as some apparent sharp dealing by defense counsel, is a strong reminder to be thorough and exercise independent judgment in fulfilling discovery obligations. In particular in mega-litigations such as the In re Opioid matters, even the smallest discovery disputes may be weaponized. Plaintiffs are actively looking for opportunities to attack defendants for discovery irregularities, and often seeking the extreme sanctions when they do. Outside counsel for defendants are not out of the line of fire. Here, because the defendant resolved the underlying case before the Report was released, Justice Maltese’s hammer largely fell on defense counsel for counsel’s, client’s and discovery vendor’s mistakes leading to the belated production of relevant interview notes, and what the court viewed as related gamesmanship.

The Report (at 18-19) briefly discusses the aggrieving conduct, finding thatContinue Reading Don’t fall short in your disclosure obligations: In re Opioid litigations.

As none of us can forget, the COVID-19 pandemic forced companies to close their brick and mortar offices with little time to adequately prepare their employees for a remote work environment. All of a sudden, in-person meetings were replaced with virtual conferences via Microsoft Teams, Zoom, and Amazon Chime – each leaving a new data…

On April 20, 2020, the Supreme Court granted cert in Van Buren v. United States, to resolve an important circuit split over the meaning of “authorized access” under the Computer Fraud and Abuse Act (CFAA). This is the Court’s first foray into analyzing the precise contours of CFAA liability. Van Buren may have far-reaching…

Increasing mobile device usage for routine business – such as through text messages and mobile applications like WhatsApp – is contributing to a new developing trend in E-Discovery: broad discovery requests for businesses to collect and produce data from their employees’ mobile phones.

The proliferation of electronic communication not only makes it imperative for organizations to have mechanisms in place to capture and preserve mobile text messages, but also raises new challenges about how to protect employee privacy.  As more and more employees use their personal devices for business purposes (and vice-versa – employees using company-provided devices also for personal purposes), there is an increasing desire among employees to ensure their personal data is protected, even as the company produces other data required in discovery.

Courts have recognized this is an issue, and the law is evolving to strike a balance between the discoverability of relevant information and privacy protections from overly intrusive requests for text messages.
Continue Reading Court Rules Personal Privacy Interests May Impact Scope of Discovery for Text Messages

In Ingham Regional Medical Center v. U.S. (Jan. 6, 2020), the Court of Federal Claims compelled production of certain government investigatory documents that the Court found were not privileged work product prepared “in anticipation of litigation.” The Medical Center sued to recover payments for outpatient healthcare services performed in connection with DoD’s TRICARE program…

On January 13, 2020, U.S. District Court Judge Castel of the Southern District of New York in SEC v. Telegram Group Inc. et al., No. 19 Civ. 9439 (PKC) granted the motion of the U.S. Securities and Exchange Commission (“SEC”) to compel Telegram Group Inc., a technology company best known for its secure messaging app, to produce overseas bank records (Dkt. 67). The SEC had sought these records “fully unredacted” on an expedited basis in support of its claim that Telegram engaged in an unregistered securities offering (Dkt. 52). Telegram objected to any production, asserting that the records were of questionable relevance, that they contained banking and personal information protected by a host of foreign laws, and that it would be unduly burdensome to “to cull through these records and redact the personal information of non-U.S. persons and entities subject to foreign data privacy law protections.” (Dkt. 55). In a short decision, the Court ordered Telegram to produce the records on a tight timeline, holding that “[o]nly redactions necessitated by foreign privacy laws shall be permitted, and a log stating the basis for any redaction shall be produced at the same time the redacted documents are produced.”

There are a few key takeaways from this decision. First, the Court recognized foreign data privacy laws as legitimate grounds for withholding otherwise discoverable information. Defendant was not given a blank check to redact; rather, the Court required Telegram to log the basis for any privacy assertions, and one can expect the SEC will closely question Telegram on the redactions. At the same time, the Court clearly did not agree with the SEC’s characterization of data privacy laws as “blocking statutes” to be ignored, and was not swayed by its complaints that Telegram had not shown that such laws require deference. This is consistent with an observed general heightened sensitivity to data privacy and data security interests in the U.S. and abroad.

Judge Castel’s approach represents a change from U.S. courts’ prior dismissive treatment of similar disclosure objections. Courts traditionally would apply a multi-factor comity analysis that generally prioritized U.S. discovery interests over those of conflicting foreign laws and ultimately required unredacted production. See, e.g., Laydon v. Mizuho Bank, Ltd., 183 F. Supp.3d 409 (S.D.N.Y. 2016) (requiring unredacted production of data protected by the then EU privacy regulation, the 1995 EU Directive 95/46/EC, based on comity analysis set out in Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 544 n.29 (1987) (hereinafter “Aerospatiale”)). Certainly, the SEC pushed for the customary approach, but Judge Castel appears implicitly to have to have resolved in short form (or skipped over) the Aerospatiale comity analysis and accepted the legitimacy of foreign restrictions on disclosure in U.S. proceedings.Continue Reading Burden of Compliance With Foreign Data Privacy Laws Does Not Justify Withholding of Banking Records

Crowell & Moring has issued its “Regulatory Forecast 2018: What Corporate Counsel Need to Know for the Coming Year.”

The Forecast cover story, “Digital Transformation: The Sky’s the Limit,” provides a look at how technology is helping companies soar to new heights and how regulation can help companies to succeed.…

The U.S. Court of Appeals for the D.C. Circuit has now weighed in on whether plaintiffs can bring a putative class action arising from an alleged data breach in lieu of allegations of actual misuse of compromised data.  Emphasizing the “low bar to establish [] standing at the pleading stage,” the D.C. Circuit reversed a…

“There are many ways to surveil each other now, unfortunately,” including “microwaves that turn into cameras, et cetera.  So we know that that is just a fact of modern life.”  Kellyanne Conway, March 12, 2017 Interview with New Jersey’s The Record.

Data from microwaves-turned-cameras has yet to appear in court, but data from other IoT…