Electronic Discovery and Evidence

Judge says defendant must decrypt files, Fifth Amendment not at issue

"A federal case that may have helped define constitutional law in the digital age turns not on the defendant’s rights in regard to her encryption password, but on the fact that evidence clearly showed she owned a laptop in question and had access to its contents.

In what was thought to be a precedent setting case in the digital age, a federal judge ruled Monday that a woman arrested in a mortgage scam must give authorities access to her encrypted hard drive.

The defendant, Ramona Fricosu, argued that exposing the contents of the hard drive by entering her password and decrypting the files would violate her Fifth Amendment rights against self-incrimination. . . . (read more)

Judge says defendant must decrypt files, Fifth Amendment not at issue

"A federal case that may have helped define constitutional law in the digital age turns not on the defendant’s rights in regard to her encryption password, but on the fact that evidence clearly showed she owned a laptop in question and had access to its contents.

In what was thought to be a precedent setting case in the digital age, a federal judge ruled Monday that a woman arrested in a mortgage scam must give authorities access to her encrypted hard drive.

The defendant, Ramona Fricosu, argued that exposing the contents of the hard drive by entering her password and decrypting the files would violate her Fifth Amendment rights against self-incrimination. . . . (read more)

Tablet and E-book reader Ownership Nearly Double Over the Holiday Gift-Giving Period

Pew Research - "Between mid-December and early January, the number of owners of each device rose from 10% to 19%. Overall, 29% of adults own at least one of them. . . " (read more).

Another important source of ediscovery data. Many of these "E-book readers" have e-mail, web browsing capacities and other digital features. They will eventually replace the laptop computer.

Justices Say GPS Tracker Violated Privacy Rights

 "The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days . . . . But five justices also discussed their discomfort with the government’s use of or access to various modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance, location data from cellphone towers and records kept by online merchants." (Read more).

 

Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law

This is an excellent Congressional document setting forth the current state of the law regarding tracking cell phones and vehicles using GPS. https://www.fas.org/sgp/crs/intel/R42109.pdf.

Another District Court Applies Civil eDiscovery Rules to Criminal Case

In United States v. Briggs, 2011 U.S. Dist. LEXIS 101415, 4-5 (W.D.N.Y. Sept. 8, 2011) the Court, after noting Judge Facciola's similar decision in United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), ruled that the Court would apply the federal civil rules to a criminal matter as they pertain to the form of ESI disclosure.

Annual Electronic Discovery and Evidence Training Institute

PHOENIX, AZ – Law Partner Publishing, the State Bar of Arizona Trial Practice Section and the Center for Law Science and Technology, which is part of the Sandra Day O'Connor ASU College of Law, announce the upcoming conference entitled: 

Annual Electronic Discovery  and Evidence Training Institute

December 1 and 2, 2011

Arizona State University

Mercado Center

Downtown Phoenix, AZ

 

This Institute provides a unique eDiscovery training opportunity for legal professionals for several reasons.

       •  Practical and Structured Technology and Legal Training from Top Experts

      •  Includes Over 18 Hours of Online On-Demand Instructional Training 

      •  Judges Will Provide Their View From the Bench

      •  Real Clients Provide Their eDiscovery Concerns

      •  Mock 26(f) Meet and Confer will be Conducted   

      •  Includes Acclaimed eDiscovery Publications and Model Forms

      •  Service Providers Will Respond to a Mock eDiscovery Service Proposal

 

DISTINGUISHED SPEAKERS INCLUDE:

• Vice Chief Justice Andrew D. Hurwitz
  Arizona Supreme Court    
• Michael Arkfeld
  Arkfeld and Associates 
• George L. Paul
  Lewis and Roca             

                      
 For further information please go to LawCLECenter (www.lawclecenter.com). to register.

Adobe Acrobat Search Defect

For the ediscovery users out there - Acrobat 9.4.5 has a search defect. "The bug, discovered by customers of Acrobat Standard and Professional in mid-June, prevents the search feature from properly highlighting results. Users only see a cursor next to the found search term, rather than the entire term being highlighted in a contrasting color, causing the product to be crippled for document reviewers."  Read more .

CASE WITHDRAWN: Nat'l Day Laborer Org. Network v. Immigration & Customs Enforcement Agency

The Court has withdrawn the Nat'l Day Laborer Org. Network v. Immigration & Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655 (S.D.N.Y. Feb. 7, 2011) decision where the Honorable Shira A. Scheindlin set forth an extensive analysis requiring metadata accompany disclosure of federal ESI in a FOIA case. On the Lexis search site it states that "[t]he Opinion Previously Reported at this Citation has been Removed from the Lexis Service at the Request of the Court June 21, 2011."

The order stated:

In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41). I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record. By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit. The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

Electronic Bank Business Records Not Properly Authenticated

On appeal, the Court affirmed the trial court's ruling that bank business records were inadmissible for failure to properly authenticate the records and their untrustworthiness. The appellant was the third party purchaser of credit card debt from a bank. The appellant sought the balance due as well as interest, attorney fees, and costs. The Court rejected the appellant's argument that the "nationwide trend" and "clear federal precedent" is to admit these records. The Court noted that, "[t]he institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, . . . (read more)

Murder Conviction Reversed for Failure to Properly Authenticate MySpace Pages

The Maryland  Court of Appeals reversed and remanded for a new trial the defendant's murder conviction for failing to properly authenticate MySpace pages. In a lengthy opinion, the Court found the trial judge abused his discretion in attempting to authenticate the social networking site's web pages of defendant's girlfriend through the lead investigator's testimony only. On the girlfriend's web page it stated, "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant argued (read more)

Court Finds Ineffective Assistance of Counsel for Failing to Object to Admission of Email

In this state post-conviction relief action, the defendant argued that his trial counsel was ineffective because of his failure to "lodge a timely objection to the authentication of 38 print-outs of emails that allegedly originated with the Defendant from his home computer and e-mail address" and allegedly sent from him to the victim. The Court in reversing the conviction stated that . . . (read more . . .)

Facebook "Form" of Internet Production Denied

Even though the parties signed a confidential agreement, Facebook attempted a novel disclosure process which was soundly rejected by the Court. The Court stated:

"Second, Plaintiffs state that, rather than producing documents directly, Facebook  instead has uploaded certain documents to a website, Watchdox.com, that allows Facebook  to restrict Plaintiffs' ability to review the documents in certain ways. For one, it requires Plaintiffs to review these documents on a computer that is connected to the internet. In addition, "to prevent copies [of these sensitive, confidential documents] from being inadvertently disclosed to third parties" (Opp'n at 1), documents uploaded on Watchdox.com cannot be printed by Plaintiffs. Other restrictions and options, which previously were being used but now are not, include setting document expiration dates, tracking which documents have been reviewed and by whom, and rendering documents non-searchable or non-annotatable.

The Court rejected this method of production as unduly burdensome and stated: 

Facebook's  methods of production, at least with respect to the documents mentioned in Plaintiffs' motion, are either unduly burdensome, not contemplated by the stipulated protective order entered in this case, or both. For example, Facebook's  use of Watchdox.com is unduly burdensome upon Plaintiffs. Even though Facebook  says it has addressed each of Plaintiffs' concerns as it is notified of them (e.g., upon being notified, it gave new reviewers access to the secure website, corrected the orientation of sideways or upside-down documents, disabled the tracking feature, etc.), each of these steps make the discovery process less efficient without providing any real benefit. Facebook's  claim that Watchdox.com is needed because the documents uploaded to it are extremely sensitive and confidential is belied by the fact that a two-tiered protective order — which Facebook  agreed to be bound by — exists in this case.  Indeed, if the documents are as sensitive and confidential as Facebook  asserts, they can produce them as "Highly Confidential — Attorney's Eyes Only." Facebook's  fear of inadvertent disclosure — the stated reason in support of its "no printing" restriction — is purely speculative. (emphasis supplied)."

 In re Facebook PPC Adver. Litig., 2011 U.S. Dist. LEXIS 39830, 9-10 (N.D. Cal. Apr. 6, 2011)

"Fox Gaurding the Hen House" - Key Employee Failed to Search For Relevant and Critical ESI - Court Orders Civil Contempt Sanctions and Disclosure in Other Lawsuits or Face $500,000 Sanction

In this product liability case, it was discovered after trial that the defendant withheld critical, relevant ESI. In defense, the defendant's employee (a key witness) in charge of collecting the ESI claimed "computer illiteracy" for the reason for nondisclosure of the ESI. The defendant failed to institute a litigation hold and, in fact, requested employees to delete e-mails on several occasions. In addition, the defendant failed to conduct a search of e-mails for keywords such as "flame arrester" which would have retrieved the documents in question. The Court chose not to grant plaintiffs a new trial but ordered the defendant "to pay $250,000.00 in civil contempt sanctions to the plaintiff in this case. The Court additionally orders that Blitz has thirty (30) days from the date of this Memorandum Opinion & Order to furnish a copy of this Memorandum Opinion & Order to every Plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years. The Court issues an additional $500,000.00 sanction that will be tolled for thirty (30) days from the date of this Memorandum Opinion & Order. At the end of that time period, if Blitz has certified with this Court that it has complied with the Court's order, the $500,000.00 sanction will be extinguished. Finally, for the next five years, Blitz is ordered that in every new lawsuit it participates in as a party, whether plaintiff, defendant, or in another official capacity, it must file a copy of this Memorandum Opinion and Order with its first pleading or filing in that particular court. This Court expresses no opinion as to the manner in which a particular court may use or not use such copy." Green v. Blitz U.S.A., Inc, 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011).

California Court Labels Producing Party's eDiscovery Actions a "Charade"

Moreno v. Ostly. In this appellate review, the producing party strenuously contested production of the plaintiff's cell phone and computer even though evidence was established showing at least the cell phone had relevant text messages on the device. After finally disclosing the devices, which were not the ones in use during the relevant period of time, plaintiff's counsel admitted that the relevant devices with the relevant ESI had been discarded and not available. (read more).  
 

The Expanding Role of Search in E-Discovery

What corporations and their counsel need to know about the new rules governing search and the latest technologies to meet those mandates.

LIVE l CLE Approved l Complimentary

Presenters:

• Michael Arkfeld
• John Tredenick

In recent years, Courts (federal and state) have begun questioning the validity of key word searches—as well as the ability of lawyers to craft those searches. In doing so, they have refused to order the return of inadvertently-produced privileged documents for failing to use a proper search protocol, which can obviously change the course of your case. Lawyers suddenly find themselves speaking with their malpractice carrier while their clients wonder what happened.

This seminar will cover the new rules on keyword searching and provide practical tips to ensure that your search techniques are up to par. After discussing the key search cases and their implications for privilege review, our distinguished faculty of e-discovery lawyers and search experts will show new methods for improving search and making sure privileged documents are not inadvertently produced, and if so, how to ensure your protocol is defensible.

• Topics will include:
• The Search Cases: From O’Keefe to Hawley Insurance—Are lawyers qualified to craft and run their own search methodologies?
• Should you cooperate with opposing counsel in formulating search terms?
• Are you able to certify your search methodology for the Court?
• Defensibility of Your Search Protocol: What must lawyers do to ensure that inadvertently produced privileged documents will be returned and not used in the case pursuant to FRE 502 and “clawback agreements.”
• Tips and Techniques to Find Privileged Documents: Practical advice from search experts on how to find privileged documents and improve your search strategy.
  Advanced Analytical Techniques for Managing Large Document Populations: New statistical and mathematical techniques to find relevant documents and pare down document populations to target relevant documents.
  The program will run for one hour and fifteen minutes and is approved for 1.25 hours of CLE credit for Illinois and New York.

Register today (click here). Space is Limited.

Metadata Must Accompany Documents Pursuant to Federal FOIA Request

The Court has withdrawn this opinion. "The Opinion Previously Reported at this Citation has been Removed from the Lexis Service at the Request of the Court June 21, 2011."

In the seminal decision of Nat'l Day Laborer Org. Network v. Immigration & Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655 (S.D.N.Y. Feb. 7, 2011) the Honorable Shira A. Scheindlin set forth an extensive analysis requiring metadata accompany disclosure of federal ESI in a FOIA case.

Click Here (located at the bottom of the page) for a copy of the opinion issued on 2-7-11.

In this important decision, the Court found that, if requested, specific fields of metadata must accompany a federal FOIA request. In another "wake-up" call the Court chastised litigants for failure to cooperate in discovery. Interestingly, the Court included law professors in her critique and stated:

While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers - even highly respected private lawyers, Government lawyers, and professors of law - need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production (emphasis added).

In this case, the Court:

• Reiterated the dispute resolution procedures contained in Rule 34 if the parties have a disagreement regarding the form of production
• Noted that Sedona Conference "abandoned an earlier presumption against the production of metadata"
• Extensively discussed what a "load" file is and the metadata that must be included in the file, and set out the specific metadata fields for e-mail and images
• If a party wrongfully discloses the improper ESI "form," the disclosing party must pay for redisclosure
• A party must not downgrade the "searchability" of ESI

Model Jury Instruction Recommended To Deter Juror Use Of Electronic Communication Technologies During Trial

"Judicial Conference Committee on Court Administration and Case Management issues model jury instruction “to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.” With the increasing access to information on a wide variety of portable devices, the courts have had to deal with a new phenomenon: limiting juror access to the Internet or other information during the trial. . . . (read more)."

 

NY Court Refuses to Relieve Burden of Law Firm to Delete Confidential Business Informtion

The Court affirmed the lower court's decision upholding a "confidentiality agreement" requiring a law firm to destroy all confidential business information provided to it after the case was concluded. After the case settled, the law firm which was provided the confidential information requested that the agreement not be enforced because of the cost of deleting the information since it had been backed up several times on the law firm computers.  Oxxford Info. Tech., Ltd. v Novantas LLC, 2010 NY Slip Op 8363, 2 (N.Y. App. Div. 1st Dep't Nov. 16, 2010).

Judge Facciola Denies Proportionality Request

In this condom monopoly inquiry, the defendant argued that the FTC's request was unduly burdensome. The Court rejected the burdensome/proportionality argument citing the failure of the defendant to present sufficient proof of the burdensome of the request and the high standard of proof required. The Court stated that compliance must threaten "to unduly disrupt or seriously hinder normal operations of a business." Id. There is no affidavit or other supporting proof that would permit that conclusion. . . . (citation omitted).   Moreover, as indicated by the parties' agreements concerning search terms for searching documents in the United States, there may be electronic means of searching the data that the parties can mutually agree upon to keep the burden to the minimum.  FTC v. Church & Dwight Co., 2010 U.S. Dist. LEXIS 115205, at *10-12 (D.D.C. Oct. 29, 2010)(Facciola, J.)