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

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

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

In an opinion yesterday resolving a motion alleging that JP Morgan’s corporate representatives were not sufficiently prepared for depositions, Judge Francis observed that the common practice of objecting to the scope of a Rule 30(b)(6) notice is improper, and that the proper course is to move for a protective order:
Continue Reading Judge Francis: Parties Must Move for a Protective Order, Not Merely Object, to Overly Broad 30(b)(6) Notice

In an opinion today, Magistrate Judge Gorenstein quashed a Rule 30(b)(6) subpoena that Bank of China (“BOC”) served on the New York branch of the Israeli bank Hapoalim concerning events in Israel, because the subpoena would have required a witness within the Rule 45 jurisdictional territory to gather information from witnesses outside the territory:
Continue Reading Judge Gorenstein Rules That Nonparty Receiving Rule 30(b)(6) Subpoena Need Not “Educate” Local Witness With Information Outside Jurisdiction

In the civil litigation against the Madoff feeder fund Fairfield Greenwich and other related parties, the SEC and the defendants recently exchanged briefs on the standard for determining whether the SEC must comply with a nonparty subpoena.  The defendants want to depose current and former SEC employees to elicit testimony showing that, since Madoff successfully deceived the SEC, he could have also deceived the defendants. The SEC’s brief argues the Court cannot compel compliance unless the SEC’s decision to not comply was “arbitrary and capricious” under the Administrative Procedures Act:
Continue Reading Madoff Case Raises Standard of Review When SEC or Other Agencies Balk at Nonparty Subpoenas

In the RICO litigation Chevron has brought to challenge an allegedly fraudulent multibillion dollar judgment against it in Ecuador, Judge Kaplan today denied, without prejudice, the motion of Patton Boggs, counsel to certain Ecuadorian citizens trying to enforce the judgment, to quash a subpoena from Chevron. As we blogged before, Patton Boggs’s motion argued that compliance with the subpoena would cost between $6-8 million. Judge Kaplan found that it was likely Patton Boggs had discoverable material, including potentially material covered by the crime-fraud exception to attorney-client privilege, and that a wholesale quashing of the subpoena was not justified. He concluded that Patton Boggs’s concerns about the burden of compliance were best addressed after the parties determined the proper scope of the subpoena, and chided both sides for “extraordinary stubbornness” in not having attempted to negotiate terms in the first place:
Continue Reading Judge Kaplan Denies, Without Prejudice, Patton Boggs’s Motion to Quash Chevron Subpoena and Orders Parties to Confer “In Person”