Significant EDiscovery Cases


Specht v. Netscape, 00 CIV. 4871 (S.D.N.Y. 2000-2006)

Internet privacy class action. Used Iris “packet sniffer” software to verify claim that Netscape’s SmartDownload browser plugin product was secretly sending private browsing data back to Netscape. Used forensic tools (FileMonRegMonRegshotSpy++Dependency Walker, and PE Explorer) to determine what operations SmartDownload performed when it was being installed and when it was running.

Deposed Netscape’s Product Manager for SmartDownload. Obtained electronic data about SmartDownload downloads from Netscape and other internet software sites.

Negotiated the electronic production of the programming source code and related files for SmartDownload. Because of the volume of source code involved, manual review would have taken thousands of hours. Using advanced search tools, we were able to review it in a fraction of that time. Used forensic tools and programming development environments (Microsoft Visual C++ and Microsoft Visual Basic 6.0) to understand SmartDownload’s interaction with the Communicator browser.

In two landmark e-commerce decisions, the Southern District of New York and the Second Circuit rejected Netscape’s motion to compel arbitration based on Netscape’s design of its own web page, which precluded any inference that users had assented to the license agreement for SmartDownload. Those decisions also rejected Netscape’s argument that the license agreement for Communicator applied to SmartDownload users based on the determination that SmartDownload was a completely separate product from Communicator.

Defeated Netscape’s Motion to Dismiss, which was based on Netscape’s assertion that SmartDownload did not intercept the “contents” of an electronic communication and that it therefore did not violate wiretap laws. The Court denied that motion based on the nature of the data that SmartDownload had been transmitting.

Scott v. Bell Atlantic, No. 600591/00 (N.Y. Sup. 2000-2005)

Consumer class action. Used “Ping Plotter” software to demonstrate that Bell Atlantic’s DSL service slowed down during peak usage hours.

Westinghouse Securities Litigation, No. 91-354 (W.D.Pa 1991-1999)

Securities class action.

1992: Managed a review team of 25 attorneys and paralegals in multi-million page paper document review. Used Q&A database and Excel spreadsheets to quantify agreement between reviewers, reviewer accuracy, and overall project status.

1997: Obtained court order requiring the defendants to produce portions of their counsel’s document database. Click here for an excerpt from the ECF docket sheet including the minute entry of the Order. Click here for relevant excerpts from the transcript of the hearing on the Motion to Compel.

1998: Wrote custom document-coding software that minimized manual data entry by allowing reviewers to automatically enter data based on previously-entered data from related documents. The software also responsively eliminated fields based on reviewer input and scrubbed data as it was entered by using custom data dictionaries. Wrote custom document-retrieval software that allowed complex custom searches.

Northern Telecom Securities Litigation, No. 93-cv-04384 (S.D.N.Y. 1993-1999)

Securities class action.

1995: Deposed principal officer about telecom outage and customer satisfaction data in enterprise-wide databases. Worked with testifying experts and managed all submissions in support of a hotly-contested motion to compel production of that data. Here are excerpts from the ECF docket sheet including minute entries of the Orders granting and enforcing the motion to compel.

Diller + Scofidio v. Depthography, Inc., No. NY 122639/01 (N.Y. Sup. 2001-2003)

Breach of contract. Managed the collection, review, and production of 84 GB of electronic documents. Sought and obtained 55 GB of electronic documents. Prevailed at trial based on presentation of electronic evidence.

Ongoing Confidential Matter

Defamation action. Seeking an Order compelling a social networking site to produce electronic records.

Ongoing Confidential Matter

Breach of contract action. Providing electronic document review team management consulting services.

Ongoing Confidential Matter

Civil rights action. Providing preservation and review consulting services.

Significant Non-EDiscovery Cases

Specht v. Netscape Communications Corp. (S.D.N.Y., 2d Cir.).

Seminal internet software licensing case. Because of the significance of the Specht case, the details are reported separately here.

Himmelman v. MCI Corp., Oh v. AT&T Corp. (D.N.J., D.D.C., F.C.C.).

These class actions were litigated in two federal courts, with a related adversary proceeding against AT&T and MCI before the Federal Communications Commission. In the FCC, we obtained a Declaratory Order determining that AT&T and MCI had violated Section 201(b) of the Communications Act of 1934, 47 U.S.C. § 201(b), by misleading their customers in connection with providing Long-Distance Directory Assistance. Himmelman v. MCI Corp., Oh v. AT&T Corp., 17 F.C.C.R. 5504 (March 19, 2002). In the settlement of the class action, AT&T agreed, among other things, to provide free directory assistance for a limited period, to eliminate the misleading prompts, and to enhance its customers’ ability to use its services. (MCI had filed for bankruptcy.) The settlement provided benefits with an estimated value of $13 million. Oh v. AT&T Corp., 225 F.R.D. 142 (D.N.J. 2004).

The decisions in Oh and Himmelman are significant interpretations of the Communications Act. See, e.g., the Supreme Court’s decision in Global Crossing Telecom., Inc. v. Metrophones Telecom., Inc., 550 U.S. 45 (slip op. at 8) (2007) (citing Oh v. AT&T Corp., 76 F. Supp. 2d 551, 556 (D.N.J. 1999) with approval for the proposition that § 207 of the Communications Act provides a private right of action under § 201(b)).

Cede & Co. v. JRC Acquisition Corp. (Delaware Court of Chancery).

Represented The Royce Funds in pretrial appraisal proceedings arising from a corporate “going private” transaction. Participated in the trial of that case before Chancellor Chandler. The Petitioner’s Post Trial Brief demonstrates the nature and scope of the financial issues in that case. We obtained a judgment materially increasing the merger consideration to Royce. The post-trial decision in JRC is a significant contribution to Delaware appraisal law. (Click here to perform a Google search for cases and scholarly articles citing this decision).

In re Westinghouse Securities Litigation (W.D. Pa.).

Managed and co-led a team of twenty-five attorneys and paralegals from twenty plaintiffs’ class action firms. Discovery involved the production of millions of pages of documents and database files. To facilitate review and retrieval, developed a custom document review and coding program and a custom database search program. Using these tools, found strong evidence supporting the claims. As a result, on the eve of depositions, defendants agreed to settle for $67.5 million. See the Settlement Notice.

Blumenthal v. Alamito Company, Kahn v. Alamito Company (Maricopa County, Arizona).

Early case to compel an auction of the target company in response to a proposed mangement-led leveraged buyout. The defendants, members of Alamito’s management, proposed in a Proxy Statement to buy Alamito from its public stockholders for $110 per share (which they then raised to $123 per share). Two internationally-renowned investment banking firms officially opined that the price was fair to the public.

We uncovered evidence proving that the defendants’ Proxy Statement was materially false and misleading. Soon after being confronted with that evidence, the defendants agreed to settle the litigation. As part of the settlement, they agreed to remove all impediments to an open auction and to sell Alamito to the highest bidder. A four-way bidding war ensued, after which a third party bought Alamito for $165 per share – an aggregate benefit to the stockholders of $80 million.

State of New Jersey v. Gemstar – TV Guide Int’l. (Cal. Super. Ct.).

Represented the Treasury Department of the State of New Jersey (approximately $75 billion under management) in an individual securities fraud action against Gemstar – TV Guide and several of its officers. After defeating defendants’ demurrers (see transcript of hearing on motion), we negotiated a settlement in which the State of New Jersey recovered approximately 50% of its losses.

Scott v. Bell Atlantic Corp. (N.Y. Sup. N.Y. County, N.Y. App. Div. 1st Dept., Ct App.).

Claim that Bell Atlantic misrepresented the quality of its DSL service. In an appeal heard by New York State’s highest court, we obtained a decision reversing the Appellate Division and holding that Bell Atlantic’s contractual disclaimers and 30-day money-back trial period did not bar misrepresentation claims about its advertisements for its high-speed internet service. Goshen v. Mutual Life Ins. Co, Scott v. Bell Atlantic, 98 N.Y.2d 314, 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (N.Y. 2002), modifying Scott v. Bell Atlantic Corp., 282 A.D.2d 180, N.Y.S.2d 60 (1st Dept. 2001).

In re Nine West Shoes Antitrust Litigation (S.D.N.Y.).

Price-fixing class action on behalf of purchasers of shoes sold by Nine West and its affiliates. The action alleged a combination of vertical and horizontal price-fixing. It resulted in a decision by the United States District Court for the Southern District of New York imposing per se price-fixing liability despite the fact that the defendants only had a twenty percent market share. In re Nine West Shoes Antitrust Litigation, 80 F. Supp. 2d 181 (S.D.N.Y. 2000).

Immediately after that decision, Nine West entered into an agreement with the Attorneys General of all 50 States and all United States Territories to settle the price-fixing claims for $34 million. Seethe Settlement Agreement.

Other significant cases include:

In re Asia Pulp & Paper Securities Litigation (S.D.N.Y.) (Complex international structured finance settlement for $46 million. See the Stipulation of Settlement at pages 17-19).

In re Chambers Development Securities Litigation (W.D.Pa.) ($95 million recovery – see Memorandum Opinion approving settlement, 912 F. Supp. 822, 828 (W.D.Pa. 1995)).

In re IDB Communications Group, Inc. Securities Litigation (C.D. Cal.) ($75 million recovery – see the Settlement Notice at page 4).

In re PNC Bank Corp. Securities Litigation (W.D.Pa.) ($5.45 million settlement of claim that the defendants misrepresented the value of exotic derivative financial instruments. See, 2 of the Settlement Notice).

In re JCC Holding Company Inc Shareholder Litigation (Delaware Court of Chancery) (increase in merger consideration by 5%. See Settlement Notice).

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