Discovery

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In a decision yesterday, Judge Crotty denied a motion by a former People magazine editor, who claims that she was fired based on her race and that People magazine was only interested “in printing [articles] concerning . . . ‘White middle-class suburbia,’” to compel discovery concerning what stories People chose to publish.  He found the requests were “burdensome and disproportionate”:
Continue Reading Judge Crotty: People Magazine Editor Alleging Race Discrimination Cannot Get Discovery About What Stories People Chose to Publish

In an opinion Monday, resolving “the latest in a long, tedious series of discovery disputes,” Judge Hellerstein chided a patent plaintiff, Intellectual Ventures, for having disclosed infringement contentions that were “discursive, disorganized, and, at times, confusing” and for repeatedly shifting positions about what it believed was the infringing conduct of the defendant, JP Morgan:

Intellectual

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In an opinion yesterday, Magistrate Judge Gorenstein rejected the Bank of China’s attempt to withhold from discovery documents that the bank claimed were privileged because they relate to “Suspicious Activity Reports” (or SARs) that financial institutions must file with regulators to alert them of suspicious customer behavior. Federal regulations state that “any information that would reveal the existence of a SAR” is generally confidential.  The bank established a process for investigating suspicious conduct, and the culmination of the process is a committee vote as to whether or not to file a SAR.  According to the bank, “documents produced at each step of this process are protected by the SAR privilege since they result from the implementation of BOC’s policies and procedures for the filing of SARs.” Judge Gorenstein disagreed.
Continue Reading Judge Gorenstein Rejects Broad Version of Bank Privilege to Withhold Documents Related to “Suspicious Activity Reports”

In a discovery order dated yesterday, Judge Kaplan ruled (among other things) that Bank of New York Mellon could claw back a privileged email that it had inadvertently produced.  The order acknowledges the realities of large-scale document productions in which mistakes will be made “more often than desirable”:

The fact that the document as originally

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In an opinion yesterday, Magistrate Judge Ellis sanctioned The Money Store and other related defendants for failing to preserve evidence held by a third party vendor, Fidelity National Foreclosure Solutions. The underlying class action accuses the defendants of improper debt collection practices relating to mortgage loans, and the plaintiff argued that evidence from a database created by Fidelity (referred to as the “New Invoice System”) was improperly lost. Calling to mind a similar opinion from Magistrate Judge Mass two years ago (see this post), Judge Ellis found that, since the defendants has the legal right and practical ability to direct Fidelity to preserve evidence, they were required to do so:
Continue Reading Judge Ellis Sanctions Party for Failing to Preserve Evidence Held by Nonparty Vendor

In an opinion today, Judge Scheindlin granted the State of Israel’s motion to quash, on sovereign immunity grounds, a subpoena to a former Israeli national security official, Uzi Shaya.  The underlying case accuses the Bank of China of aiding and abetting a 2006 suicide bombing in Israel, and Mr. Shaya allegedly had knowledge of the Bank of China funding terrorism.  Judge Scheindlin ruled that Israel had standing to object, and that its objections were valid:
Continue Reading Judge Scheindlin Rules That Sovereign Immunity Protects Former Israeli Security Official From Deposition

In an opinion today, Judge Scheindlin ruled that Bank Hapoalim, a non-party Israeli bank, was required to produce a Rule 30(b)(6) witness to testify about information originating in Israel:

Even if Hapoalim is a non-party witness and all of the documents or knowledgeable persons are in Jerusalem, compliance with the 30(b)(6) subpoena is not

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In a comment letter last month to proposed changes to the Federal Rules, Judge Scheindlin (among other points) disagreed with a proposed rule change that would require any discovery sought to be “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”:
Continue Reading Judge Scheindlin Opposes Proposed Proportionality Limit on Scope of Discovery