Federal Decisions

New York judge weighs in on coaching witnesses during Zoom proceedings

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.


New York Judge Weighs in on Coaching Witnesses During Zoom Proceedings

It’s hard to believe that in the span of just a few short months, lawyers across the country have suddenly become technologically adept and are using a host of remote technology tools, including videoconferencing software. In the blink of an eye, interacting via videoconference is now a daily occurrence for both attorneys and judges alike, whether it’s for for meetings, court appearances, or hearings.

This unexpectedly rapid rate of adaptation to technology has been impressive, and I would argue, unprecedented. I’ve been writing about legal technology for a decade now, urging lawyers to sit up and take notice of emerging technologies. And in the process, I’ve correctly predicted a lot of legal technology trends.

But this wave of adoption? I didn’t see it coming. It’s amazing the impact a pandemic can have on what had previously been a steadfast resistance to technology adoption by many members of the legal profession, isn’t it?

Of course, now that we’re all “zooming,” as I recently heard a judge refer to it, a host of issues are beginning to arise relating to the practicalities and the ethics of using videoconferencing tools in lieu of in-person appearances. It was the former that was recently addressed by a federal court judge in the Southern District of New York.

In Joffe v. King & Spalding LLP, No. 17-cv-3392-VEC-SDA, a motion was brought before Judge Valerie E. Caproni by plaintiff’s counsel. At issue was whether plaintiff’s counsel could insist that “the remote deponent…provide, while on the record, a recording or screen-share of the deponent’s monitor.”

According to the plaintiff’s motion, the goal behind this provision was to prevent coaching of the remote deponent by defense counsel: “(A)t an in-person deposition, it is virtually guaranteed that any notes or messages passed to the deponent during the testimony would immediately be seen by questioning counsel (and by the videographer); while, at…a remote deposition, in the absence of screen-sharing it is virtually guaranteed that, e.g., emails and instant messages sent to the witness’s computer mid-testimony, could never be seen by anyone else.”

In response the motion, the defendant asserted that the plaintiff’s request to view the remote deponent’s computer screen was unwarranted and unduly intrusive. Judge Caproni agreed.

She concluded that although it was within her powers to impose a monitoring mechanism, it was not needed in this case. She explained that there was no indication that defense counsel had behaved impermissibly in the past and she saw no reason to believe he would do so in the future. Accordingly she directed defense counsel to provide opposing counsel with notice if he intended to privately confer with a witness. Additionally she required both attorneys to, “for the duration of their respective depositions…close all Internet browsers, messaging applications, email clients, or any other Internet page or computer program that could enable the receipt or initiation of an electronic communication, other than the platform used for the deposition. Ms. Moss and Mr. Fine are further directed to close any other applications that could generate any pop-up notification or window during their respective depositions.”

A reasonable compromise, if you ask me, and an interesting outcome to an interesting issue of first impression. As COVID-19 cases surge in many parts of the United States, this motion was no doubt one of the first of many related to remote legal proceedings that will be raised in courts across the county in the coming months.

It’s a brave and strange new world out there, but fortunately we have the technology we need to conquer it and ensure that the wheels of justice can continue to turn. There will undoubtedly be bumps and bruises along the way, but our judicial system will adapt and, with a little help from technology and commonsense decisions like this one, justice will prevail.


Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected].

New York Federal Court on the Discoverability of Social Media Evidence

DR logoThis week's Daily Record column is entitled "New York Federal Court on the Discoverability of Social Media Evidence ."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


New York Federal Court on the Discoverability of Social Media Evidence 

For years I’ve been asserting that social media is not a fad--it’s a phenomenon. And now, from our current vantage point, the observation that social media has infiltrated, and affects, all aspects of our culture is indisputable. But an intriguing side effect of the mass incorporation of social media into the daily lives of millions of Americans is the interesting evidentiary and discovery issues now arising in both civil and criminal cases. 

For example, a few months ago, I wrote about two First Department cases addressing the discoverability of social media evidence in civil cases. The first was Abrams v. Pecile, 83 A.D.3d 527 (1st Dep’t 2011), where the plaintiff filed suit seeking damages for, among other things, conversion and intentional infliction of emotional distress arising from the defendant’s alleged unauthorized possession of seminude photographs of the plaintiff. In her demand for discovery, the defendant sought access to the plaintiff’s social networking accounts. The First Department concluded that the defendant failed to show that permitting access would lead to the discovery of evidence relevant to the defense of the lawsuit.

In another First Department case, Patterson v. Turner Construction Company, 2011 WL 5083155 (1st Dep’t 2011), the defendant in a personal injury lawsuit sought access to the plaintiff’s Facebook records created subsequent to the occurrence of the incident that was the basis of the lawsuit, including those that were not publicly available. The Court likened the plaintiff’s private Facebook postings to a diary and concluded that, if relevant, they were discoverable, but limited access to the Facebook data and required that the trial court first conduct an in camera review to determine if there was evidence relevant to the lawsuit.

Now, as brought to my attention by Eric Turkewitz of the New York Personal Injury Law Blog, the United States District Court of the Eastern District of New York has also weighed in the discovery of social media evidence in civil lawsuits. 

At issue in Davids v. Novartis, CV06-0431 was whether the defendant’s motion to compel the discovery of the plaintiff’s log-in information to all of her social networking websites should be granted. Novartis alleged that the social media evidence was relevant to both the issue of damages and Davids’ claim that she suffered from osteonecrosis of the jaw.

In response, Davids conceded that although her publicly available social media information was subject to discovery, Novartis had failed to show that the private data was relevant to matters at issue in the lawsuit.

In his Order, after reviewing a number of relevant New York Appellate Division cases, United States Magistrate Judge William D. Wall agreed with Davids: “A New York Appellate division court has held that seeking to compel a plaintiff’s Facebook log-in information without a factual predicate is tantamount to a fishing expedition.  See McCann v. Harleysville Ins. Co., 910 N.Y.S. 2d 614, 615 (4 Dep’t 2010).Though the discovery rules are liberal, the court agrees...that there must be some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page. Because it lacks any such evidence, Defendant’s motion amounts to a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

Thus, unfettered access to social media accounts, including information not available for public consumption, is generally discouraged unless the party seeking access has established a clear connection between the evidence expected to be found and its relevancy to the issues presented in the case.
Even so, the best course of action once a lawsuit has been initiated is to advise your clients to avoid posting anything to either the private or public areas of their social media accounts that could have the potential to adversely affect the case. And, in many cases, the best advice would be to simply stop posting to social media sites entirely. After all, better safe than sorry.

Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

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Second Circuit: Claim Barred by Statute of Limitations in State Court Can be Brought in Federal Court

Blawgs The very first Monday guest blog post is from the blog, Full Court Pass, which focuses on New York law and the United States Supreme Court.  The blog is authored by Norman Olch, whose practice is centered on state and federal appeals in civil and criminal cases.


f an action is dismissed by the New York State courts on the grounds the action is barred by the statute of limitations, can the identical claim then be brought in federal court where the statute of limitations is longer?

In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda the United States Court of Appeals for the Second Circuit today answers that question "Yes." The decision can be found here.

Following a public hearing, the town of Wawayanda, New York, imposed a special tax assessment on property owners. Property owner Cloverleaf brought a declaratory judgment action in state court arguing, inter alia, that the assessment violated procedural due process because the town had posted notice of the public hearing in a newspaper advertisement instead of providing actual notice by mail to property owners. The state court dismissed the action on the grounds it was commenced after the four-month statute of limitations under CPLR § 217.

Cloverleaf then brought an action in federal court under 42 U.S.C. § 1983 again alleging that the failure to give notice by mail violated due process of law. The District Court dismissed the action on the grounds the prior dismissal in the state court barred the action in federal court.

The Second Circuit reversed the dismissal and reinstated the claim. The statute of limitations for a § 1983 action in the New York federal courts is three years. The traditional rule is that a dismissal on statute-of-limitations grounds is not a determination on the merits--it bars the remedy but does not extinguish the right. Therefore, an action dismissed for untimeliness in one jurisdiction, can be brought in another jurisdiction with a longer statute of limitations....

(The remainder of the post can be read here.)

Very Very Nice: Borat Takes Glorious Victory in Federal Court


This week's Daily Record column is entitled "Very Nice: Borat Takes Glorious Victory in Federal Court."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Very Nice: Borat Takes Glorious Victory in Federal Court

“[T]he movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewer. At its core, however, Borat attempts an ironic commentary of ‘modern’ American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from ‘ordinary’ Americans.”
—Psenicska v. Twentieth Century Fox, No. 07 Civ. 10972 (S.D.N.Y. Sept. 3).

In 2006, the satirical documentary “Borat: Cultural Learnings of America for Make Benefit Glorious Nation
of Kazakhstan” appeared in movie theaters, to the great amusement of most Americans.

British comedian Sacha Baron Cohen portrayed Borat Sagdiyev, a flamboyant Kazakh television personality who traveled across the United States in search of Pamela Anderson, leaving a trail of befuddled and bemused citizens in his wake.

While the vast majority of people found Borat to be highly entertaining, a few unwitting participants were anything but amused.

After learning they had participated in a film that would become a national phenomenon, they reinforced the very stereotypes Sacha Baron Cohen examines in the film. Angry and embarrassed, they called their lawyers.

Shortly thereafter, three separate lawsuits were filed in the U.S. District Court for the Southern District of New York on behalf of a driving school instructor and two etiquette training instructors. The complaints alleged the plaintiffs were fraudulently induced into signing an ambiguous agreement, which waived their right to pursue legal claims against the producer in relation to their voluntary
participation in the film.

Notably, each agreement included a merger clause stating that: “[T]he Participant acknowledges that in entering into [the Agreement], the Participant is not relying upon any promises or statements made by anyone about the nature of the Film or the identity of any other Participants or persons involved in the Film.”

Unfortunately for the disgruntled plaintiffs, in early September U.S. District Court Judge Loretta A. Preska issued a memorandum and order granting the defendants’ motion to dismiss the complaints. Judge Preska concluded “each Plaintiff has executed a valid agreement releasing the claims he or she now attempts to litigate.”

Her decision was based in large part upon the New York State Court of Appeals decision, Dannan Realty
Corp. v. Harris
, 5 N.Y.2d 217 (1959). In Dannan, the court held that a party is precluded from alleging the
defense of fraudulent inducement when the contract signed includes a disclaimer that no fraudulent statements were relied upon by the signor in entering into the contract.

Relying on Dannan, Judge Preska rejected the plaintiffs’ claims that the merger clause was too general, and likewise concluded the terms of the contract were not ambiguous.

Interestingly, like the prejudices examined in Borat, the decision to file suit in this case is an example of another inexplicable American phenomenon: litigate first, think later.

Embarrassed and humiliated, the unwitting and willing participants signed away their rights and then, defying both common sense and the terms of the contract, sued the production company.

Ironically, the slew of unsuccessful lawsuits filed in the wake of the blockbuster movie served only to further highlight the plaintiffs’ roles in the film.

So ended another chapter of Cohen’s ridiculously accurate commentary on our culture. As always, Cohen was wildly successful at exposing the sometimes sordid, and always hilarious, underbelly of America.

Very nice.

Tiffany Fights Losing Battle Against Inevitable Change

Drlogo11 This week's Daily Record column is entitled "Tiffany Fights Losing Battle Against Inevitable Change."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Tiffany Fights Losing Battle Against Inevitable Change

“Ahh... Do I detect a look of disapproval in your eye? Tough beans buddy, ‘cause that’s the way it’s gonna be.”
      —Holly Golightly in  “Breakfast at Tiffany’s”

Like many large, traditional companies, the jeweler Tiffany & Co. made the puzzling choice to engage in a protracted and expensive legal battle rather than simply accepting and adapting to the technological changes in the worldwide marketplace.

Four years ago, Tiffany filed a lawsuit against eBay, the online auction giant, in the U.S. District Court for the Southern District of New York. Tiffany alleged its trademark was violated when eBay permitted sellers to list potentially counterfeit Tiffany items for sale.

Last week, following a non-jury trial, Judge Richard J. Sullivan issued a ruling in favor of eBay, concluding “[i]t is the trademark owner’s burden to police its mark and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement
might be occurring on their Web sites.”

Judge Sullivan’s decision, hailed as an important victory for online retailers, was in keeping with the vast majority of U.S. decisions on this issue.

Not surprisingly, instead of accepting defeat gracefully and vowing to find ways to make innovative platforms such as eBay work to their advantage, representatives of Tiffany indicated the company
would most likely appeal the decision to the U.S. Court of Appeals for the Second Circuit.

In other words, rather than allocating resources so the company can adapt to the ever-changing online marketplace, Tiffany is planning to expend more money battling the inevitable —change.

Judge Sullivan noted Tiffany’s strategy of avoiding, rather than acknowledging technological change, in his decision: “Notwithstanding the significance of the online counterfeiting problem, it is clear that Tiffany invested relatively modest resources to combat the problem. In fiscal year 2003, Tiffany budgeted approximately $763,000 to the issue, representing less than 0.05 percent of its net sales for that year. …

Tiffany’s CEO, Michael Kowalski, testified that over the past five years, Tiffany has budgeted $14 million to anti-counterfeiting efforts —of which approximately $3 to 5 million was spent in litigating the instant action.”

Tiffany is not alone in its reluctance to adapt its business practices to embrace and complement emerging technologies. Trademark and copyright infringements claims against online giants such as TouTube, Google and eBay abound as industries with foundations planted firmly in the 20th century struggle to stay afloat when confronted with 21st century innovations.

The recording industry has yet to find a way to maintain profitability in the face of online file sharing and other emerging technologies. Likewise, conventional retailers, television and print media continue to struggle with these issues as consumers increasingly obtain information, products and services online, rather than through traditional venues.

The online marketplace is expanding exponentially. Pioneering business entrepreneurs are creating increasingly inventive online platforms through which products are advertised, bartered, exchanged and sold. Online commerce is becoming commonplace.

Like Tiffany, some companies steadfastly refuse to acknowledge the profound changes in the marketplace and, instead, expend precious time, energy and resources in the futile attempt to turn back the clock and prevent change.

Conversely, other innovative businesses, such as eBay, wisely accept the fact that change is inevitable and reap the financial benefits as they creatively and innovatively tackle the digital frontier.

Offensive Criticism Trumps First Amendment Rights

Drlogo11 This week's Daily Record column is entitled "Offensive Criticism Trumps First Amendment Rights"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Offensive Criticism Trumps First Amendment Rights

I was disappointed to learn of the recent decision by the U.S. Court of Appeals for the Second Circuit in Doninger v. Niehoff, No. 07-3885-cv, a case I last discussed in March.

At the time, I disagreed with the district court’s determination that the penalty imposed by the school district did not implicate the First Amendment rights of the plaintiff, a high school student.

Unfortunately, the Second Circuit upheld the lower court’s decision, purporting to limit the holding to the
specific facts of the case, but opening the door to the conclusion that any off-campus criticism of school administrators having the potential to cause a disruption on campus may result in school discipline.

In this case, the plaintiff, a 17-year-old high school senior, alleged the officials at her high school violated her First Amendment rights by preventing her from serving on the student council as a result of statements she wrote regarding the school’s administration from her home computer, on a blog not affiliated with the school.

Specifically, she expressed her disappointment with the likely cancellation of the annual “Jamfest,” a musical event she helped to organize:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basi-cally we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is
the letter we sent out to parents…

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.

The school administrators learned of the comment two weeks later, and subsequently barred her from serving on the student council as a direct result of the blog post.

Despite noting at the outset that the Supreme Court’s holding in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) — that offensive forms of expression on school grounds may be prohibited under the First Amendment — was inapplicable since the comments at issue were not made on school grounds, the Second Circuit spent an inordinate amount of time focusing on the specific “vulgar, lewd, and sexually
explicit language” used by Doninger in her blog post.

In fact, the specific nature of her comments was discussed on 11 pages of the 21-page decision.

The word “offensive” was used on nine occasions and appeared on five pages in the opinion; the word “vulgar” was used seven times and appeared on five pages; the word “civility” was used 4 times and appeared on four pages; the word “values” was used five times and appeared on four pages; and the specific “offensive” phrases used by Doninger, “douchebag” and “pissed off”, were reiterated on nine separate occasions, appearing on six pages of the opinion.

That’s an awful lot of time spent discussing that which was deemed legally irrelevant, or at the very least, peripheral to the underlying legal analysis.

I can’t help but wonder whether the disrespectful nature of the “vulgar, lewd, and sexually explicit” comments made by this young woman was the driving force behind the court’s decision in this matter. While the ever-present optimist in me hopes that I’m wrong, my pessimistic side insists that I’m right.

SDNY Judge Rules Sections of US Patriot Unconstitutional

Gavel2Yesterday, U.S. District Court Judge Victor Marrero struck down the sections of the Amended Patriot Act relating to National Security Letters, as reported in this AP article.  From the article:

He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all "be styled to make the validation of the law foolproof."

Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.

He said when "the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."

Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."

He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.

In his decision, Judge Marrero wrote:

In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.

It's a pleasure to read such lofty and accurate language regarding our constitutionally guaranteed civil rights and this administration's blatant violation of the same.  And, more importantly, it's about time!

Second Circuit Certifies Question to the New York Court of Appeals

Gavel2In Rivkin v. Century 21 Teran Realty, Docket No. 05-6566-cv, the United States Court of Appeals for the Second Circuit recently certified the following question to the New York Court of Appeals:

Did any or all of  Defendants-Appellees (real estate brokers) breach a fiduciary duty to Rivkin (the plaintiff, a potential buyer) by failing to disclose, in any form, Defendants-Appellees’ representation of a competing buyer for the property Rivkin sought to buy?

Hat tip:  Second Opinions.

Court of Appeals Answers Question Certified By the Second Circuit

Gavel2_2 In Benesowitz v Metropolitan Life Ins. Co., 2007 NY Slip Op 05580, the New York Court of Appeals answered the following questions which had been certified to it by the Second Circuit:

Whether New York Insurance Law § 3234 (a) (2) means that (1) a policy may impose a twelve-month waiting period during which no benefits will be paid for disability stemming from a pre-existing condition and arising in the first twelve months of coverage or (2) a policy may lawfully include a permanent absolute bar to coverage of disabilities resulting from pre-existing conditions that trigger disability within the first twelve months of the employee's coverage" (471 F3d 348, 353 [2006]).

The Court of Appeal's answer was as follows:

(T)he certified question should be answered as follows: New York Insurance Law § 3234 (a) (2) means that a policy may impose a 12-month waiting period during which no benefits will be paid for a disability stemming from a pre-existing condition and arising in the first 12 months of coverage.

Second Circuit Certifies Question to the NY Court of Appeals

Gavel2On June 12, in Ehrenfeld v. Mahfouz, Docket No. 06-2228-cv, the Second Circuit Court of Appeals certified the following question regarding long-arm jurisdiction under New York law to the New York Court of Appeals:

Does CPLR 302(a)(1) confer jurisdiction over the defendant, a Saudi businessman who was named as a supporter of terrorism in a New York author's book?

(Hat tip:  Second Opinions)