| D. New York [E.D.] |
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Reminder: These case digests are provided for informational purposes only, and do not constitute legal advice. Anyone conducting legal research on a particular topic or in a specific jurisdiction is advised to supplement these materials with their own efforts or those of a qualified attorney whom they have hired for that purpose.2011Cerome v. United States, 08-CV-04019 (NGG) (E.D.N.Y. 1-14-2011) -- Alleged Fourth Amendment Error Rejected -- Defendant was convicted of three counts of robbery. Following affirmation of his conviction by the Second Circuit, defendant filed a petition for post-conviction relief, alleging various instances ineffective assistance of counsel. Following a brief investigation of a robbery, police identified the defendant as a suspect and went to his home. An officer pressed the doorbell on defendant's home, and defendant opened the door in response. The police informed defendant that he was under arrest, searched him, and seized a cellphone he was carrying. The phone and its contents were introduced at trial; defendant alleged on appeal that his representation was flawed because his attorney did not file a suppression motion. The Court noted that it was highly unlikely, given the law, that the motion to suppress would have succeeded, and thus the attorney's conduct was not unreasonable. In addition, the Court noted that the phone and its contents were essentially irrelevant to the trial, given the scope of the other evidence introduced by the government. Defendant's argument based on the alleged Fourth Amendment omission was rejected, as were the rest of his assertions. The petition for post-conviction relief was denied.2010Penberg v. Healthbridge Management, 08 CV 1534 (CLP) (E.D. N.Y. 10-19-2010) — Plaintiff worked for Defendant out of a home office, preparing patient assessments, personnel evaluations, and other documents. He filed suit against Defendant after his position was eliminated in a corporate reorganization, alleging that he had been terminated instead due to medical problems (bypass surgery) and his decision to take 12 weeks of medical leave. During the course of litigation, Defendant was notified by a corporate security firm that various proprietary documents had been shared by Plaintiff on a peer-to-peer network. Defendant immediately requested an order instructing Plaintiff to disconnect his computer from the Internet and allowing a forensic exam of his hard drive. The forensics exam revealed that hundreds of files had been deleted in the 11 days between the initial report by the security firm and the forensics exam. There was also a suggestion that hundreds of documents had been copied to external storage. Defendant asked the Court to dismiss Plaintiff's suit as a sanction for the confidentiality breach, the Court limited its remedy to an imposition of costs and fees. Defendant was allowed to amend its Answer to include a claim for breach of fiduciary duty. In reply, Plaintiff sought to amend his original Complaint to include a count alleging that the breach of fiduciary duty claim is retaliatory. The Court allowed the amendment.Apelbaum v. First Data Corporation, CV 08-3186 (TCP) (ARL) (E.D. N.Y. 10-19-2010) — Defendant provided information to the Secret Service which resulted in the issuance of a search warrant and seizure of Plaintiff's computer equipment. Plaintiff sued Defendant, alleging a violation of his civil rights on the grounds that the information provided to the Secret Service was false. During discovery, Plaintiff stated that a Secret Service agent had told his attorney that Defendant had requested that the Secret Service forensically wipe Plaintiff's hard drive, which included various personal information. However, the Secret Service agent was deposed and testified that no data had been damaged and that Defendant had not made any request that the Secret Service do so. Defendant then moved to depose Plaintiff's attorney regarding the conversations with the Secret Service agent. The Court agreed that the conversations were not protected by attorney-client privilege, but rejected the request nonetheless, finding that the substance of the conversations had been obtained from the agent during deposition. Under the circumstances, Defendant did not overcome the presumption against depositions of attorneys. Amerisource Corporation v. RX USA International, Inc., 02-CV-2514 (JMA) (E.D. N.Y. 7-6-2010) -- Civil case in which computer forensics was used to demonstrate that various key e-mails had been forged. |
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