Electronic filing is coming to the U.S. Supreme Court! Effective November 13, 2017, amendments to the Supreme Court’s rules take effect that require represented parties (and their amici) to submit petitions, briefs, and most other filings through the Court’s electronic filing system. The Rules explain that the new e-filing requirements are “[i]n addition to the filing requirements” already set forth in the Rules. Accordingly, parties and their amici will still be required to submit forty copies of their briefs on paper in booklet form, and they now must additionally submit one paper copy on 8.5 x 11 inch paper (in case the Clerk’s office needs to scan the brief for any reason). The paper submission remains the “official filing” for purposes of determining timeliness, but e-filing is supposed to occur “contemporaneously” with the paper filing. Pro se parties will continue to file submissions exclusively on paper; those submissions will be scanned by the Clerk’s office and posted on the Court’s web site.
The Supreme Court Says “Game Over” to Crafty Gamers’ Attempt to Circumvent Class Certification Appeals
The Xbox 360 is designed for gaming. Appellate litigation, gamers learned, is not.
On behalf of a putative class of purchasers of the Xbox 360, a group of gamers brought suit alleging a defect with the consoles. After the district court struck the class allegations, plaintiffs sought permission to appeal under Rule 23(f), which the Ninth Circuit denied. Rather than proceeding in litigation to final judgment, plaintiffs instead voluntarily dismissed their claims, with prejudice, while reserving a right to appeal the order striking class allegations. Plaintiffs then appealed the order under Section 1291. On appeal, the Ninth Circuit held that it had appellate jurisdiction and thus the case was still “sufficiently adverse” to be heard under §1291. The Supreme Court granted certiorari on the question of whether courts of appeals “have jurisdiction under §1291 and Article III . . . to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice.”
Court Dismisses “Phantom Markdown” Suit against Saks
On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The plaintiff claimed that he only bought the shoes because he believed he was receiving a significant value and that Saks’s $145 market price was false and misleading.
Case Halted: California Court Denies Class Certification in Ford Defective Steering Case
On December 22, 2016, a federal District Court Judge in the Northern District of California denied certification of three proposed classes of statewide consumers who purchased or leased certain Ford Fusion or Ford Focus vehicles. The plaintiffs allege that their vehicles contain defective Electronic Power Assisted Steering (“EPAS”) systems prone to sudden and premature failure during normal driving situations. The plaintiffs claim that Ford knew as early as 2007 that the EPAS system was defective, and Ford fraudulently concealed this defect. The plaintiffs also contend they paid more for their cars than they would have if Ford had disclosed the defect. The plaintiffs brought causes of action for (1) common law fraudulent concealment; (2) violation of California’s Consumer Legal Remedies Act (“CLRA”); (3) implied warranty under California’s Song-Beverly Act; and (4) implied warranty under the federal Magnuson-Moss Act.
‘Cause You’ve Got Proportionality: Overview of The Sedona Conference Commentary on Proportionality in Electronic Discovery
Recently, The Sedona Conference, a research and educational institute, published its 2016 Public Comment Version of The Sedona Conference Commentary on Proportionality in Electronic Discovery. This is the third version of this publication, which reflects the change and emphasis on proportionality under the 2015 amendments to the Federal Rules of Civil Procedure. The Commentary sets out six principles of proportionality guided by the Rules and case law.
Input to this public comment version is welcomed, and a subsequent final version will be published. Public comments may be made through January 31, 2017 to comments@sedonaconference.org.
Home Depot Data Breach Derivative Suit Sent Home
Judge Thomas W. Thrash Jr. of the U.S. District Court of Georgia permanently shelved a derivative suit brought by shareholders of Home Depot.
Home Depot is a multinational home improvement retailer. In September, 2014, Home Depot suffered a data breach that resulted in $192 million in net losses. This breach followed the widely publicized data breaches at several other major retailers and department stores.
Not an LOL Matter: Court Provides Guidance on Steps Litigants Should Take to Preserve Text Messages
We’ve all been there. Your friends throw you in the pool with your phone in your pocket. You repeatedly slice your finger on shards of glass from your phone’s shattered screen. Or, maybe you forget your phone isn’t waterproof and dump champagne all over it. For most of us, the worst part of these ordeals is a trip to the Apple Store and the hefty price tag of the latest iPhone. However, if you’re a litigant with text messages that are relevant to pending litigation, the failure to preserve those messages could result in spoliation sanctions or an adverse inference instruction. While case law is unlikely to provide insight on what to do with a champagne-covered, non-waterproof phone, a recent district court decision, Shaffer v. Gaither, provides guidance to litigants on what steps to take to preserve potentially-relevant electronically-stored information (“ESI”) stored on mobile devices.
In Top “Form” – The NY Commercial Division’s Continuous Efforts to Increase Efficiency and Reduce Litigation Costs
As outlined in previous posts, the New York Commercial Division seeks to be a forward-thinking forum that adopts rule changes aimed at increasing efficiency and decreasing litigant costs. In August, a revised Model Preliminary Conference Order form was adopted for optional use by Division judges, even though the previous Preliminary Conference Order form had been approved only two years ago. The need for a revised form highlights the rapid changes in Commercial Division rules and the Division’s continuous efforts to stay up to date. The new form incorporates specific descriptions of many of the recently adopted rules and contains significant revisions to the sections governing pre-answer motion practice, document production, interrogatories, depositions, disclosure disputes, and e-discovery. This post discusses four of the more significant rule changes that are reflected in the new form.