Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

To Be or Not To Be: Can Attorney’s Fees Be Recovered on a Void Contract

Trying to collect attorney’s fees based on a void contract? Surprisingly, you can, according to a recent California Court of Appeal case. In California-American Water Co. v. Marina Coast Water Dist., the California Court of Appeal held that prevailing parties were entitled to recover attorney’s fees and costs based on a contract, even though the underlying contract at issue in the litigation was declared – void. Continue Reading

Ancient ESI: A Survey of the Ancient Documents Exception

Should Titanic’s Box Office release or the debut of Harry Potter already be described as events from the ancient past? It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established. See Rule 803 of the Federal Rules of Evidence. Prior to the recent amendment, Rule 803 (16) described ancient documents as documents “at least 20 years old.” As amended, Rule 803(16) limits the ancient documents exception “to statements in documents prepared before January 1, 1998.” Id. The use of a January 1, 1998 cut-off avoids having the identification of what is an “ancient document” be a moving target. The Judicial Conference Advisory Committee on Evidence Rules (“the Committee”) recognized that Fed. R. Evid. 803, left as is, soon could have become “a vehicle to admit vast amounts of unreliable electronically stored information (ESI),” as the twenty year lookback period crept forward into the age of electronic documents. The Committee was specifically concerned about the risks created by the unreliability of older ESI, in combination with the “exponential development and growth of electronic information since 1998.” Continue Reading

Privacy vs. Security: Will SCOTUS Leave the (Third) Party in 2018?

If the government obtains information about your past locations from your wireless provider, is that a search? If so, is it a search that requires the government to obtain a warrant? Courts have held that, because companies collect this kind of data in the ordinary course of business, consumers who voluntarily provide information to these third-parties have no reasonable expectation of privacy in it. A string of robberies may prompt the Supreme Court to reconsider this doctrine. Continue Reading

Alibaba Securities Class Action Reinstated

The Second Circuit recently revived a putative securities class action against Alibaba Group Holding Ltd. and four of its top executives for alleged material misrepresentations in connection with the company’s $25 billion initial public offering in September 2014 – the largest in U.S. history. Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York had dismissed the suit in June 2016, holding that the plaintiffs failed to state a claim under the Securities Exchange Act of 1934. In a summary order last week, the Second Circuit vacated and remanded, concluding that Judge McMahon misapplied Rule 12(b)(6) standards in dismissing the investors’ claims. Continue Reading

Making VHS Relevant Again: The Uncertain Scope of Personal Information Protected by the Video Privacy Protection Act of 1988

The Ninth Circuit recently became the third federal appellate court to tackle what constitutes “personally identifiable information” protected by the Video Privacy Protection Act of 1988 (“VPPA”). Last year, the First Circuit and the Third Circuit propounded different standards for applying this statute, as they each grappled with the necessary leap from the age of VCRs to modern video services. In Eichenberg v. ESPN, the Ninth Circuit weighed in, adopting the Third Circuit’s approach and holding that a Roku device serial number coupled with the names of videos watched on an ESPN application were not “personally identifiable” within the meaning of the VPPA. The information, the Ninth Circuit reasoned, would not “readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Therefore it was not protected by the VPPA. Continue Reading

Billable Bitcoins: Lawyers Accepting Cryptocurrency

With bitcoin and other cryptocurrencies reaching shocking new prices seemingly every day, some people have finally started putting the new payment systems to real use – paying lawyers. Earlier this fall Nebraska became the first state to hand down a formal ethics ruling on the propriety of lawyers charging their clients using bitcoin and other cryptocurrencies. In allowing lawyers to charge their clients via cryptocurrencies, so long as they then instantly exchange the virtual currency for U.S. dollars, the decision may be indicative of a larger trend in the legal industry. Continue Reading

New Rules Tackle Authentication of Electronic Data

On December 1, 2017, two amendments to the Federal Rules of Evidence came into effect that impact how courts authenticate digital evidence. The addition of two categories to Rule 902’s list of self-authenticating documents seeks to streamline the introduction of digital evidence by avoiding costly delays that often serve little purpose. In doing so, it promises greater efficiency to those who adapt their practices to the new requirements.

Rule 902(13) waives the requirement of external authentication for “records generated by an electronic process or system,” provided that the accuracy of the process or system is certified by a person who meets the qualification requirements of 902(11) or (12). Examples of such records provided by the Advisory Committee include an operating system’s automated log of all USB devices connected to the computer, or a phone software’s machine-generated record of the time, date, and GPS coordinates of each picture taken. Continue Reading

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