Legislative Committee Report
The following are the highlights of the caselaw and legislative updates provided by the Legislative Committee:
• Patterson v. Turner Constr. Co, 2011 NY Slip Op. 07572 (Oct. 27, 2011, Appellate Div., Supreme Court of New York, 1st Dep't) (discovering party peruse Facebook activities (including those set to private or restricted outsider access) insofar as they are relevant, in that the information contradicts or conflicts with a plaintiff's alleged restrictions, disabilities, losses and other claims.)
• California enacted the Reader Privacy Act, updating reader privacy law to cover new technologies like electronic books and online book services as well as local bookstores.
• Vulnerability uncovered: If one's iPhone falls into the wrong hands, Siri will obligingly disclose the owner's texts or e-mails - or send text and e-mails that appear to come from owner. This is true EVEN if the phone is locked with a PIN. This recently discovered security flaw can be corrected, but the owner must take the affirmative step of disabling Siri when the phone is locked.
• On September 27th, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit unveiled a model order that would limit e-discovery in patent cases. He wrote that the Federal Circuit Advisory Council had unanimously voted to adopt the order. The model order contains the following provisions:
* Metadata is excluded from e-discovery production requests without "a showing of good cause."
* E-mail production requests must be for specific issues "not general discovery of a product or business."
* E-mail production requests should be delayed until after disclosures about the patents, the accused uses of the invention, relevant financial information and the prior art — published information about the subject matter of the claimed invention, including issued patents.
* E-mail requests are limited to five so-called custodians per producing party and five search terms per custodian.
* Courts may consider up to five additional custodians per producing party and five additional search terms per custodian. Litigants who submit e-discovery requests to adversaries that exceed court orders and the parties' agreement must pay for the extra production.
* Receiving parties are barred from using e-discovery that the producing party asserts is attorney-client privileged or work product protected.
* The production of electronic information in a mass production, or the inadvertent release of privileged or work product protected electronic data, is not a waiver or permission to use it.
• FCC's Net Neutrality Rules ("Preserving the Open Internet") were published Sept. 23, 2011 in the Federal Register Volum 76, No. 185.
• Oct 3, 2011 - The Ninth Circuit unequivocally extended the protections of the Electronic Communications Privacy Act (“ECPA”) to foreign citizens yesterday. In Suzlon Energy Ltd. v. Microsoft Corp., the court held that the ECPA protects the emails of non-citizens that are stored in the United States from disclosure.
• The Supreme Court will today (Nov. 8th) consider in U.S. v. Jones whether police need a warrant before secretly attaching a GPS tracking device to a suspect's car.