Back in May, we wrote about a pending motion before the U.S. District Court for the District of Columbia, in which the U.S. Department of Justice and several state attorneys general (“DOJ Plaintiffs”) sought to sanction Defendant Google and compel disclosure of all emails withheld for privilege that legal counsel received but never responded to (affectionately referred to as “silent attorney” emails). The DOJ Plaintiffs claimed the silent attorney emails constituted artificial requests for legal advice intended to conceal sensitive business communications from discovery. After the parties briefed the issues, the judge ordered that the parties identify cases in support of their positions on whether the judge had the power to issue sanctions for pre-litigation conduct, and further ordered Google to produce a random sample of 210 of the 21,000 “silent attorney” emails for the court’s in camera review.
Discovery
The Sound of “Silent Attorneys”: DOJ Alleges Google Fakes Attorney-Client Privilege by CCing Lawyers Who Never Respond
If a request for legal advice goes unanswered, is it really a request for legal advice? According to the U.S. Department of Justice and several state attorneys general (“DOJ Plaintiffs”) in an antitrust action against Google, United States, et. al. v. Google, in the U.S. District Court for the District of Columbia, the answer to this question should be “no,” at least where the unanswered request for legal advice is part of an internal company practice intended to conceal sensitive, non-privileged documents from discovery.
Discovery Unlimited: The Supreme Court Set to Rule on Whether Parties to a Foreign Arbitration Can Order U.S. Discovery
The United States Supreme Court is finally set to resolve a Circuit split regarding whether district courts can order discovery for private commercial arbitrations abroad pursuant to 28 U.S.C. § 1782. The Court granted certiorari in ZF Automotive US, Inc., v. Luxshare, Ltd., No. 21-2736, after another case raising the same question was abruptly abandoned in September 2021. See Servotronics Inc. v. Rolls-Royce PLC, No. 20-794 (Sept. 8, 2021). At the heart of the issue is whether Luxshare can use the U.S. court system to get document and deposition discovery from ZF Automotive US, Inc. in the service of a pending private commercial arbitration set in Germany.
CCP 2031.280(a): New Document Production Obligations in California Civil Litigation
Effective as of January 1, 2020, all civil litigants in California will have additional discovery burdens. The California Code of Civil Procedure now requires “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” Cal. Civ. Pro. § 2031.280(a). This is a major departure from the prior rule. Responsive documents can no longer be produced as they were “kept in the usual course of business.” This new requirement applies to all pending cases in California, regardless of whether a case commenced prior to the amendment’s effective date of January 1, 2020.
“Ain’t No River Wide Enough”: Second Circuit Says No Per Se Bar to Extraterritorial Application of Section 1782
This month, the Second Circuit weighed in on open issues relating to discovery under 28 U.S.C. § 1782. Section 1782 allows federal courts to order entities that “reside[] or [are] found” in their district to produce evidence for use in a proceeding before “a foreign or international tribunal” upon request by “any interested person.”
N.Y. Court of Appeals: No Difference Between “Private” and “Public” Posts in Discovery
Those who thought designating social media posts as “private” would be sufficient to shield them from outsiders—including opposing parties in litigation—had better think again. On February 13, 2018, the New York Court of Appeals, New York’s highest court, unanimously held that the rules generally applicable to discovery in civil actions are just as applicable to “private” social media posts, and that they are therefore subject to disclosure if they are “reasonably calculated to contain evidence ‘material and necessary’ to the litigation.” Forman v. Henkin, New York State Court of Appeals, No. 1 (quoting N.Y. C.P.L.R. 3101(a)).
Deceptive Discovery: Second Circuit Affirms Sanctions for Mishandling of Discoverable Data
Late last month, in Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., the Second Circuit affirmed a $2.7 million sanctions award against defendant ePRO after repeated instances of discovery misconduct. Finding that the district court’s award properly reflected the additional costs plaintiff Klipsch Group Inc. was forced to bear due to ePRO’s actions, the Second Circuit disagreed with ePRO that the sanctions were impermissibly punitive and disproportionate. In an era of increasingly complex digital discovery, this case serves as both a sword and a shield: it protects litigants who pursue corrective discovery efforts to remedy an opponent’s willful mishandling of discoverable information, and it punishes litigants who flout their duties to maintain and disclose relevant information.
Is the Frye Standard Making a Comeback in Florida?
On July 11, 2017, the Florida Supreme Court accepted jurisdiction of a case in which it is expected to finally decide, conclusively, whether Florida courts are to apply the Frye or Daubert standard to determine admissibility of expert or scientific evidence.
The Frye standard, which was adopted in Florida in 1952, applies to expert testimony based upon new or novel scientific evidence. Under the Frye standard, “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’”