Electronic Discovery and Evidence

Supreme Court to Review Employer Access to Text Messages

"The U.S. Supreme Court agreed Monday to consider whether government employers can read text messages that their workers send and receive on workplace devices. . . . (read more).

Complimentary Access to State eDiscovery Case Law and Procedural Rules

State eDiscovery Caselaw and Procedural Rules
 
Free - Search for ediscovery cases/rules in your state. Visit http://www.elawexchange.com and begin searching.

Cross-references:

• Arkfeld on Electronic Discovery and Evidence (2nd Ed.), § 7.1(C), State Rules - Electronic Discovery

Arkfeld Publications - 20% End of Year Promotion

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New Legal Forms Added

For those recent purchasers of Arkfeld on Elecronic Discovery and Evidence treatise additional forms have been added to the online collection of over 120 ediscovery forms. (http://www.lawpartnerpublishing.com/index.php/ediscovery-practice-forms).

The new forms are:

• Order Confirming Protocol Agreement And Protective Order For Examination of Electronically Stored Data.
• Protective Order for Maintaining the Confidentiality of ESI - Section of order specifying the steps for labeling and maintaining the confidentiality of ESI on CD-ROMs, etc.

Triggering Event - Legal Hold & Sanctions

Well written decision determining triggering event for legal hold and finding no sanctions since e-mails destroyed were not found to be relevant and conduct was negligent, not grossly negligent. http://www.elawexchange.com/cases/Scalera_2009.pdf.

Cross-reference:

• Arkfeld on Electronic Discovery and Evidence

(2nd Ed.), § 7.9, Litigation Hold and Sanctions

Judges and Lawyers in Florida Can No Longer be Facebook "Friends"

In a recent Florida ethic's opinion the state’s Judicial Ethics Advisory Committee decided that Judges and attorneys being "friends" on Facebook creates the the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  To see the opinion click here.

Failure to Properly Redact Electronic Documents

Failure to properly redact electronic documents can lead to severe consequences - ttp://www.wanderingaramean.com/2009/12/tsa-makes-another-stupid-move.html

No Early Appeals for Attorney-Client Privilege Rulings.

The United States Supreme Court rules that orders requiring a party to disclose information that they believe is protected by the attorney-client privilege does not qualify for an immediate appeal. - http://www.supremecourtus.gov/opinions/09pdf/08-678.pdf

Electronic Document Costs are Recoverable

The Court noted that ". . . costs for electronic copies of documents are recoverable where they are a substitute for hard copies."  Horizon Hobby, Inc. v. Ripmax Ltd., 2009 U.S. Dist. LEXIS 96255 (C.D. Ill. Oct. 15, 2009)

3rd Party's Deletion of Computer Files Referred to US Attorney for Possible Criminal Contempt

Penalties for the spoliation of ESI in a civil case has just taken on a new dimension with the recent decision by a Court to refer a 3rd party's conduct to the United States Attorney for possible criminal contempt proceedings. SonoMedica, Inc. v. Mohler, 2009 U.S. Dist. LEXIS 65714 (E.D. Va. July 28, 2009).  In this wrongful conveying of medical technology case, two individual's computers were subpoenaed for examination and the Court ordered the parties to turn over their home computer "without it being touched except to turn it off."  A forensic expert discovered that before turning over the computer "22,603 files/folders had  been affected and that 556 were deleted manually." This fact coupled with failing to tell the truth during a deposition and failure to comply with a subpoena duces tecum led to the Court's decision to refer the case for criminal proceedings and to impose $108,212.15 in fees and costs against the third parties.

Defendant’s Loss of Electronic Information Was Sanctionable Due to Poor Information Management Practices

Phillip M. Adams & Assocs. v. V., No. 05-64, 2009 U.S. Dist. LEXIS 26964 (N.D. Utah Mar. 30, 2009).

In an action involving claims of misappropriation of trade secrets, plaintiff filed a motion to sanction defendant for spoliation based on defendant’s failure to produce discovery, where a large number of documents were lost as a result of defendant’s information management practices. The court noted that there did not appear to be any backup system or data backup policy. Instead, employees were responsible for downloading important e-mails or documents to their individual computers in order to avoid the automatic overwriting of all documents due to limited space on defendant’s servers.

The Stunning Impact of E-Discovery on IT

The Stunning Impact of E-Discovery on IT. "Since more than 95 percent of all information is electronic and it's estimated that upwards of 97 billion emails are sent each day, it is no wonder that every lawsuit has electronic evidence. All IT shops protect themselves from disaster with the knowledge that every computer will fail, but computer systems are not designed to provide easy access for lawyers and judges. . . . "

"Read my lips, Dell is in contempt."

"Dell held in contempt in New Orleans camera case. An Orleans Parish judge has held Dell in contempt of court for failing to provide company e-mails relating to an ill-fated deal to provide the city with crime cameras, the New Orleans Times Picayune reports. Dell is one of multiple defendants in a case brought by New Orleans' initial crime camera suppliers, Southern Electronic and Active Solutions, who are claiming that a handful of tech companies and some less-than-scrupulous city officials (including the mayor) conspired to steal their camera technology. Dell had been threatened with contempt in May, when the judge ordered Michael Dell, CEO of the computer giant to testify in person, and balked that the company was dragging its feet when asked to provide internal documents. Dell's attorney had argued that the CEO had not met with Mayor Ray Nagin, and that he had no knowledge of any deal with the city. Documents have since emerged to show that the meeting took place in 2004, and that Dell was briefed on the camera deal, the Picayune reported. The judge got angry when Dell's attorneys produced what she considered an incomplete body of evidence, after having been ordered to search Michael Dell's personal files and those of his deputy, Troy West. Here's the money quote from Judge Rose Ledet, dismissing Dell attorney Phil Wittmann's protestation that searching the files by terms like "cameras" and "public safety" would : "Dell is in the business of computers, Mr. Wittmann. How can they not find the documents, how can they not search the e-mails? You're making a mockery of the system here. Read my lips, Dell is in contempt.""

E-mails Can Jeopardize Your Job

E-mails Can Jeopardize Your Job.  " If ever there was a reminder to be cautious with e-mails, it came this week as romantic missives from South Carolina Gov. Mark Sanford to his Argentine lover surfaced in the national press.  Sanford, a conservative Republican who disappeared for several days to rendezvous with his lover in Argentina, returned to the United States on Wednesday to find out his tryst had been exposed in the media, along with months' worth of steamy electronic exchanges between the couple. . . . "

Electronic Discovery Vendors and Service Providers

LawExchange (www.elawexchange.com) provides complimentary access to over 180 electonic discovery vendors and service providers. 

Electronic Discovery State Legal Cases and Procedural Rules

eLawExchange (www.elawexchange.com) provides complimentary access to state electonic discovery cases and procedural rules.

Back Off Metadata Ethics Complaint, Judge Tells Lawyer Suing Sexploits Blogger.

Back Off Metadata Ethics Complaint, Judge Tells Lawyer Suing Sexploits Blogger.  "A lawyer who claims he was the paramour identified as “RS” on a blog of sexual exploits has been warned by a judge to back off on an ethics allegation against the blogger’s bankruptcy counsel.  U.S. Bankruptcy Judge Margaret Cangilos-Ruiz of the Northern District of New York said lawyer Robert Steinbuch claimed the bankruptcy counsel was improperly accessing metadata, but in reality the supposed hidden data was a document name visible to anyone when the court generated a notice of electronic filing, the New York Law Journal reports.  The judge also labeled Steinbuch’s suggestion that a notice of deposition had interfered with a religious holiday as “blatantly misleading and baseless,” since the notice was received before the holiday began, and the deposition was scheduled to take place after the holiday had ended, according to her June 5 opinion (PDF posted by the New York Law Journal) in the case. . . "

Judge Rules Dorm Room Search for Evidence of Prank Email Illegal.

Judge Rules Dorm Room Search for Evidence of Prank Email Illegal. "Boston, MA - infoZine - A justice of the Massachusetts Supreme Judicial Court has ordered police to return a laptop and other property seized from a Boston College computer science student's dorm room after finding there was no probable cause to search the room in the first place. The police were investigating whether the student sent hoax emails about another student. . . . "

Court Strikes Down GPS Tracking Without Warrant

"Court Strikes Down GPS Tracking Without Warrant. Jonathan LippmanNathaniel Brooks for The New York Times Chief Judge Jonathan Lippman wrote the majority opinion for the State Court of Appeals.

In a 4-to-3 ruling, the New York State Court of Appeals ruled on Tuesday that the State Police violated a criminal suspect’s rights under the State Constitution when it placed a GPS tracking device inside the bumper of his van without obtaining a warrant.

The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.

In three written opinions, the judges on the court debated the constitutional issues raised by the growing use of global positioning system technology as a tool of surveillance. The case could set an important precedent for state and local police agencies. . . .   The judge also raised the specter of GPS being used to penetrate every part of a person’s private life:

One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations."

Fax Server Hacked Results in $175,000 Fine

"FINRA Fines Centaurus Financial $175,000 for Failure to Protect Confidential Customer Information

Washington, D.C. — The Financial Industry Regulatory Authority (FINRA) has announced today that it has fined Centaurus Financial, Inc. (CFI), of Orange County, CA, $175,000 for its failure to protect certain confidential customer information. Centaurus was also ordered to provide notifications to affected customers and their brokers and to offer these customers one year of credit monitoring at no cost.

FINRA found that from April 2006 to July 2007, CFI failed to ensure that it safeguarded confidential customer information. Its improperly configured computer firewall - along with an ineffective username and password on its computer facsimile server - permitted unauthorized persons to access stored images of faxes that included confidential customer information, such as social security numbers, account numbers, dates of birth and other sensitive, personal and confidential data. The firm's failures also permitted an unknown individual to conduct a "phishing" scam. When CFI became aware of the phishing scam, the firm conducted an inadequate investigation and sent a misleading notification letter to approximately 1,400 affected customers and their brokers. . . . The letter failed to state that other unauthorized logins had occurred and did not inform the customers that the unauthorized access was made possible by the inadequate firewall and weak username ("Administrator") and password ("password") on its computer fax server. . . "