Electronic Discovery and Evidence

"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 160 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. . . "

EDiscovery Goes Worldwide.

"Vast Spy System Loots Computers in 103 Countries. TORONTO — A vast electronic spying operation has infiltrated computers and has stolen documents from hundreds of government and private offices around the world, including those of the Dalai Lama, Canadian researchers have concluded. . . . "

Publisher's Promotional Offer - eDiscovery and Evidence Review

Law Partner Publishing announces the release of the new ARKFELD'S eDISCOVERY and EVIDENCE REVIEW by the well-known author, speaker and attorney, Michael R. Arkfeld.  The monthly journal provides monographs as well as unbiased analysis and interpretation of recent case law and rules. THE REVIEW is a legal journal distributed online in a PDF format with links to most of the full text of the cases covered, as well as electronic files of select court pleadings and other documents. 

Introductory Offer:

Law Partner Publishing announces a 20% promotional discount for a year's subscription to the eDISCOVERY and EVIDENCE REVIEW or the first 20 customers to order the newsletter may choose to receive a complimentary set of Arkfeld on Electronic Discovery and Evidence Publications* ($245.00 value). For further information click here!

ARKFELD’S eDISCOVERY and EVIDENCE REVIEW: FOCUSED MONOGRAPHS AND RECENT CASES

PHOENIX, AZ (March 25, 2009) – Law Partner Publishing announces the release of the new Arkfeld’s eDiscovery and Evidence Review by the well-known author, speaker and attorney, Michael R. Arkfeld.  The monthly journal provides monographs as well as unbiased analysis and interpretation of recent case law and rules. The Review is a legal journal distributed online in a PDF format with links to most of the full text of the cases covered, as well as electronic files of select court pleadings and other documents.  

The Review:

• Provides exclusive practice monographs on key ediscovery and evidence issues
• Serves as a key litigation aid and reference source for practitioners during all litigation stages
• Provides practice pointers based on recent decisions
• Promotes ideas and stimulates discussion of key eDiscovery issue
• Summarizes and analyzes current precedent-setting cases in federal and state ediscovery cases.
• Provides case summaries written in capsule and extended format
• Provides full text copy of opinions in most cases
• Provides critical pleadings in noteworthy cases (motions, orders, etc.)
• Cross-referenced to the acclaimed Arkfeld on Electronic Discovery and Evidence treatise

Read More

Unredacting Redaction

The AP Reveals Details of Facebook/ConnectU Settlement With Greatest Hack Ever. "This is almost too good to be true. The Associated Press has uncovered the details of the Facebook/ConnectU settlement using, of all things, copy and paste. After taking drastic preventative measures to keep the settlement confidential, including barring reporters from the courtroom and redacting portions of the documents, Facebook has been foiled by the most laughable lull in security I’ve heard . . . "

Metadata is Being Used in Warrentless Wiretapping Program

NSA whistleblower says journos were targeted. "As the credits roll on the Bush administration, a former NSA analyst who helped blow the whistle on the National Security Agency's warrantless wiretapping program in 2005 has come forward again with allegations that the agency deliberately targeted and intercepted the communications of American journalists. He also described the data mining program, first revealed in 2006, used to target suspicious communications by filtering the metadata of all communications, foreign and domestic, passing over US wires. . . . "

Companies Still Not Ready for EDiscovery

New Poll Reveals Litigation Discovery Gap.  "Two years after new federal e-discovery rules, 30 percent of companies have no policies for preserving evidence for litigation discovery, according to a new Deloitte Financial Advisory Services poll of in-house lawyers and executives.  Developing a policy is relatively inexpensive, so it's surprising that such a large percentage of U.S. corporations have yet to ink policies for so-called legal holds, or the process of preserving documents subject to litigation discovery, said Jeff Seymour, a principal in Deloitte FAS's analytic and forensic technology practice, in a statement. . . . "

You’re Leaving a Digital Trail. What About Privacy?

You’re Leaving a Digital Trail. What About Privacy?   "HARRISON BROWN, an 18-year-old freshman majoring in mathematics at M.I.T., didn’t need to do complex calculations to figure out he liked this deal: in exchange for letting researchers track his every move, he receives a free smartphone. Now, when he dials another student, researchers know. When he sends an e-mail or text message, they also know. When he listens to music, they know the song. Every moment he has his Windows Mobile smartphone with him, they know where he is, and who’s nearby. . . "

Dallas County's proposed e-mail deletion policy draws concerns

Dallas County's proposed e-mail deletion policy draws concerns. "Dallas County's proposed policy of automatically deleting all county e-mail after 90 days has drawn criticism from trial lawyers and concerns from some county commissioners.

Unlike many other local governments, Dallas County stores all of its e-mail on computer tapes at an off-site warehouse.

But county officials say maintaining the tapes is expensive and impractical. They are proposing to automatically delete all e-mail after 90 days except those messages saved by employees to meet state-required retention periods.

Open-records advocates, as well as lawyers who increasingly rely on e-mail as key evidence in lawsuits, oppose some automatic deletion policies, saying e-mail should be kept longer.

Under such policies, employees are put in the position of having to decide which e-mails are important and should be saved from destruction. That, critics say, places too much discretion in the hands of employees and can result in the improper destruction of official records if employees are not properly trained. . . . "

New Release: Arkfeld’s Best Practices Guide for Litigation Readiness and Hold

New Release: Arkfeld’s Best Practices Guide for Litigation Readiness and Hold provides strategic guidance and recommendations to legal professionals in preparing for and implementing a ‘litigation hold.’ This Guide covers the components of a litigation readiness plan to ensure that your client can timely identify, preserve, collect, process and review electronic data for disclosure. Such a proactive approach will contribute to your success by properly identifying and preserving ESI once a triggering event occurs. In addition, an important section entitled Court Directives, Duties and Tasks, derived from case law, highlight the litigation hold obligations for disclosing parties.

Contents include:

  * Litigation Readiness Plan Components

* How to Recognize ‘Triggering’ Events

* How to Formulate a Litigation Hold Strategy

* Checklist for IT Systems and ESI Type, Storage, and Locations

* Litigation Hold Court Directives, Duties, and Tasks

IT And Legal Make A Great Team. Yeah, Right.

IT And Legal Make A Great Team. Yeah, Right.  "While technological challenges abound in e-discovery, IT's biggest hurdle may be getting in-house attorneys to meet them halfway. On the TV show Alias, field agent Sydney Bristow always worked closely with über-geek Marshall Flinkman, who augmented her talents for disguise and ass-kicking with gadgets and hacking tips. I'd always imagined that IT and in-house attorneys would have a similarly close relationship when it comes to electronic discovery. After all, IT has the technical skills to find and produce the electronic evidence that the attorneys rely on to prosecute or defend a case. . . . "

Beatty wants text message evidence suppressed

Beatty wants text message evidence suppressed. "The first battle has begun in the war Christine Beatty's lawyers are expected to wage against admissibility of the infamous text messages as evidence in the Jan. 5 criminal trial of Kwame Kilpatrick's former chief of staff.

Motions added this week to the files at Wayne Circuit Court claim Prosecutor Kym Worthy may have illegally obtained copies of 625,000 messages exchanged over a five-year period between Beatty, former Mayor Kilpatrick and others using city-owned text pagers.

The motion demands that the text messages cannot be used as evidence at a trial and the judge should order all of them suppressed. . . . "

Congress Passes New Evidence Rule 502

Congress Passes New Evidence Rule 502. "The Administrative Office of the U.S. Courts announced that: "[o]n September 8, 2008, the House unanimously passed without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The Senate had earlier approved by unanimous consent without amendment S. 2450 on February 27, 2008. See Sen. Rept. No. 110-264. The President is expected to sign the legislation in the next several weeks. . . "