New York State Court: Statute of Limitations Doesn't Run When Zoom Hearing Saved to the Cloud

Last week, Judge Mark G. Masler, issued a decision , Matter of Homer DG, LLC v. Planning Bd. of the Vil. of Homer, No. EF21-276, 2021 N.Y. Misc. LEXIS 4658 (N.Y. Sup. Ct. Sep. 1, 2021), ruling on the Respondents' motion to dismiss the Petitioner's request for a judgment annulling the decision of the Village of Homer Planning Board to deny his site plan application. The Respondents contended that statute of limitations barred the Petitioner's proceeding because it was not filed within 30 days of the filing of the Board's decision. The Board made its decision at a virtual Zoom hearing on April 12, 2021. The village clerk provided the Petitioner with a letter on April 19, 2021 that it stated was official notification that the plan application was denied. The Petitioners brought their proceeding for a judgment on May 17, 2021.

The Respondents contend that the statute of limitations began to run at the conclusion of the April 12, 2021 virtual meeting because a recording of the meeting, which included the Board's votes and resolution, was automatically saved to the cloud system used by the village, and was also streamed and remained posted on a YouTube page. The Petitioner noted that it contacted the clerk immediately after the hearing requesting an official notice of the decision, and was never notified that the video saved online was the official decision of the Board.

Judge Masler acknowledged that the statute of limitations does not specify that a decision be in writing, and that the Electronic Signatures and Records Act authorizes the electronic storage of records. However, the Court did not find that the automatic storage of the hearing recording in the cloud constituted a filing of the decision with the clerk. According to state law, a properly filed record can only be kept in an offi-site location, like the cloud, with the permission of the Commissioner of Education. "Although the recording of the April 12, 2021 meeting of the Planning Board may have been accessible to the Village Clerk or the public, it was not 'filed' with the Village Clerk. Notably, the Village Clerk did not provide any evidence demonstrating that the commissioner of education consented to the storage of such records by the Village of Homer on the Zoom cloud management system, or that Zoom storage meets the criteria established by the commissioner of education for storage of local government records in facilities which are not owned or maintained by the local government (see 8 NYCRR § 185.8). " Id. at *3-4.

Judge Masler also found that the Planning Board could be estopped from asserting the statute of limitations defense because they failed to notify the Petitioner of their novel argument that the video recording of the Board meeting constituted the record of its decision, despite repeated requests by the Petitioner for the official decision.

The Board's effort to get the Court to bar the Petitioner's proceeding seems to be particularly unwarranted in this case. But it's easy to see how the cloud storage of a video recording of a decision made at a hearing could provide a more persuasive argument that a statute of limitations had begun to run in other circumstances.

S.D Ind. Ruling in Case on Former Employee's Theft of Trade Secrets and Confidential Information

This past Thursday, Judge Sarah Evans Barker of the United States District Court for the Southern District of Indiana issued a decision, Bioconvergence LLC v. Attariwala, No. 1:19-cv-01745-SEB-MG, 2021 U.S. Dist. LEXIS 147766 (S.D. Ind. Aug. 5, 2021), denying the Plaintiff's motion for sanctions. The Plaintiff alleged that the Defendant had acquired trade secrets prior to her resignation. A state court entered a preliminary injunction requiring the Defendant to turn over data belonging to the Plaintiff, and preventing her from disclosing it. She was also forbidden to delete the data, and required to turn over the data to the Plaintiff's forensic expert within 24 hours.

After the action was removed to federal court, a new protective order was issued enjoining the Defendant from working from her employer and another competitor of the Plaintiff's. The Court found that the Defendant has saved more than 10,000 of her emails to .pst archives, which included more than 5,000 attachments. The Defendant copied the data to her work tablet, and also transferred it to a hard drive, and uploaded it to a cloud account.

In ruling on the motion, the Court found it relevant that the Plaintiff did not bring a motion to compel the production of the data the Defendant made a copy of. "Singota [the Plaintiff] has made no attempt to secure Ms. Attariwala's [the Defendant] compliance with the Preliminary Injunction Order undercuts Singota's stated belief that its trade secret and confidential information continues to be at a significant or imminent risk of misappropriation or misuse." Id. at *25.

The Court also faulted the Plaintiff for continuing to seek a motion for sanctions and to amend the inspection order, after the Defendant entered bankruptcy proceedings, stopped working for one of its competitors, and was unemployed in the same business sector. "It behooves both sides to curtail their prolonged, scorched-earth litigation strategies and move, with the guidance of the Magistrate Judge, to a prompt resolution of the remaining disputes." Id. at *32.

6th Circuit: Metadata Can Be Discovered With Due Diligence

This week, Judge Helene White issued a decision for the Sixth Circuit, United States v. Mehmood, Nos. 19-1243/19-1667/19-1669, 2021 U.S. App. LEXIS 21132 (6th Cir. July 15, 2021), affirming the district court's decision denying the Defendant-Appellant's motion for a new trial based on the discovery of new evidence. Mehmood was convicted of submitting fraudulent claims to Medicare for providing at home physical therapy.

A motion for a new trial based on newly discovered evidence will only be granted if the evidence was discovered after trial and could not have been discovered before trial with due diligence. The evidence must be material and not merely cumulative or impeaching, and must be likely to lead to a reversal of a conviction. Mehmood based his motion on an expert comparison of documents files which showed missing images from a version of the files taken from a cell phone, and the original complete file. The Defendant-Appellant's counsel took photos of patient files with his smartphone. Mehmood's counsel produced the images after the trial and before his sentencing hearing, but the photos and the documents were both in the possession of Mehmood before the trial. There was no question that the document images could be found with due diligence.

Mehmood also argued that metadata generated by a scanner used to image patient files could have aided his defense. Judge White rejected this argument because the metadata was available before trial. "The time to litigate whether Mehmood could access the metadata was before his trial and conviction. Waiting until after conviction to seek a court order for the government to produce evidence that existed long before does not make that evidence newly discovered. Because we agree with the district court that the forensic reports and metadata do not constitute newly discovered evidence that could not have been discovered earlier with due diligence, we find no abuse of discretion in the district court's refusal to hear testimony addressing the substance of that evidence." Id. at *24.