Early Pattern Emerges for Federal Consideration of GDPR-based Objections to Discovery

A Series By: Micheal H. Gladstone, Esq. Mike's Bio

In Finjan, Inc. v. Zscaler, Inc., 2019 U.S. Dist. LEXIS 24570 the USDC for the Northern District of California addressed an objection by Defendant to discovery propounded by Plaintiff seeking emails possessed by one of defendant’s European employees.  The objection argued the employee’s emails may not be produced without violating privacy requirements contained in the GDPR, which became effective in May, 2018.  The Court approached the dispute methodically and provided what this author predicted may be a model for future analysis of discovery objections under the GDPR by U.S. Courts of such disputes. 

[Are You Within the Reach of the GDPR?]

The Court first announced the general rule that “…a foreign country’s statute precluding disclosure of evidence does “not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”  Societe Nationale Industreille Aerospatiale v. United States Dist. Court for Southern Dist., 482 U.S. 522, 544 n. 29, 107 S. Ct. 2542, 96 L Ed. 2d 461 (1987).  The Court then identified the considerations pertinent to the question whether or not a foreign statute excuses non-compliance with a U.S. discovery order:  1. The importance of the documents or other information requested to the litigation, 2. The degree of specificity of the request, 3. Whether the information originated in the United States, 4. The availability of alternative means of securing the information, and 5. The extent to which noncompliance would undermine important interests of the United States.  Richmark Corp. v. Timber Falling Consultants, 959 F. 2d 1468, 1475 (9th Cir. 1992). 

The Court addressed the factors individually. 

Consideration No. 1: The importance of the documents or other information requested to the litigation. The court concluded the documents were directly relevant to the infringement issue and the data subject’s knowledge of the patented technology at issue.  As such, this consideration weighed in favor of disclosure. 

Litigation Participants Subject to GDPR Must Justify their Use of Protected Data

Consideration No. 2: The degree of specificity of the request. The court found the

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Sole Stockholder Not Employee Under VA Workers’ Compensation Act

WORKERS COMPENSATION CASE WATCH

The claimant was injured at the auto glass company he owns.   The business had a workers’ compensation insurance policy but the insurer argued that the claimant was not an employee as defined by the Act so he was not subject to the policy’s coverage.

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Observed? Preserve, Preserve, Preserve.

We are surrounded by recording devices: smart phones, dashboard cameras, recording doorbells, smart home devices, surveillance cameras, and drones. Chances are that if an accident happened, one of these devices captured it. Video of an employee’s accident can be a key piece of evidence, but we cannot use that evidence if it was erased.

Failing to preserve video evidence is called ‘‘ spoliation .’’ Preserving evidence is an important part of defending a workers’ compensation claim. In 2019, a statute was enacted governing spoliation. It states that

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Jennifer Minear Named 100 People to Meet in 2020

Virginia Business released its inaugural list of 100 People to Meet in 2020

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Climbing Fall Not in the Course Of the Employment

WORKERS COMPENSATION CASE WATCH

In Morres v. Earth Treks Crystal City Climb, the claimant worked at a recreational climbing gym.  The employer required employees to clock in before their shifts and prohibited employees from performing personal climbs while on the clock.  Before clocking in for her shift, the claimant did a warm-up climb, which she said was in preparation for performing rope maintenance.  She climbed with another co-worker, who was not scheduled to work that day.  During her warm-up climb, she took a practice fall.  She was injured in the fall.

The Deputy Commissioner found that the claimant was engaged in personal, recreational rock-climbing and was not in the course of her employment when the injury occurred.  On Review, the full Commission agreed, stating “…we do not find whatever ephemeral benefit the employer might receive from the claimant sharpening her climbing skills sufficient to bring

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Defense Attorney Coaches Manchester High School Debate Team

Jonathan Gonzalez (top left) was once in their shoes. Since his career on his high school's debate team, Jonathan has continued his involvement and support for high school debaters through college, law school, and now during his legal career in civil litigation. Yesterday, Jonathan shared his knowledge and support by coaching the Manchester High School Debate Team in Chesterfield County. Later this month, Jonathan will travel to Philadelphia to coach 5 debate teams from Washington D.C. competing in a tournament.

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Telehealth Treatment Did Not Affect Weight Given to Doctor's Opinion

WORKERS COMPENSATION CASE WATCH

On January 6, 2020, the Commission briefly addressed the issue of telemedicine in the treating physician relationship.  In Carter v. Mondelez International, the claimant was injured in a motor vehicle accident and was treating with a psychologist for PTSD

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Limousine Driver’s Accident Did Not “Arise Out Of” the Employment

WORKERS COMPENSATION CASE WATCH

In Sorour v. Avalon Transportation, the claimant, a limousine driver, was injured in a single vehicle accident. At his supervisor’s request, the claimant was driving to the company’s office.  As he exited the highway he hit the guardrail on the exit ramp at a low speed, causing his injuries.

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2019 Study of Virginia Workers' Compensation System Complete


JLARC Recommends 25 Changes - What you must know about JLARC's Report

The Joint Legislative Audit and Review Commission (“JLARC”) conducted a review of the Virginia workers’ compensation system with a special focus on the use of disease presumptions. The JLARC report was released on December 16, 2019 and included 25 recommended changes. This article includes the following:

  • What JLARC's Research Included
  • Summary of JLARC's Findings
  • Highlights from JLARC's 25 Recommendations
  • Important Links to the Actual Report and Recommendations

For this study, JLARC staff conducted research that included:

  • Structured interviews of workers’ compensation attorneys (claimant and defense); leadership and staff of state agencies; representatives of local and state organizations representing police, firefighters, and emergency medical services personnel; and insurers;

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21 McCandlish Holton  Attorneys Named 2019 Virginia 'Legal Elite'

McCandlish Holton is pleased to announce that twenty-one of our attorneys are named  2019 'Legal Elite' by Virginia Business magazine. Each year Virginia Business asks attorneys throughout the Commonwealth to nominate their peers for distinction in 20 categories. The full list of 21 McCandlish Holton attorneys on this year’s Legal Elite list, recognized in 11 categories: 

ADMINISTRATIVE/GOVERNMENT:

Karissa T. Kaseorg

Michael R. Ward

ALTERNATIVE DISPUTE RESOLUTION:

Michael H. Gladstone

Joseph M. Moore

Brennan C. Morrissett

BANKRUPTCY/CREDITORS' RIGHTS:

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