Electronic Discovery and Evidence

RFID poised for the big time in 2008

Greater integration between mobile devices and consumer electronics.  "Next year will witness the spread of RFID applications into familiar, everyday settings, while consumer electronics, wireless technologies and security requirements will continue to benefit from the integration of RFID. These are just some of the predictions from AIM Global, the worldwide industry trade association and self-proclaimed authority on automatic identification and mobility solutions.

Practical RFID applications will find their way into familiar settings, including sporting events, the latest toys and food safety, according to the trade association. Next year's Beijing Olympics will see RFID applications being used to track marathon runners to ensure race time accuracy, watched by sports fans holding tickets authenticated by the same technology. . . ."

TorrentSpy Loses Case Due to Destruction of Evidence

TorrentSpy Loses Case Due to Destruction of Evidence.  "Electronic Discovery or eDiscovery in just a few short years has become a most powerful weapon for all sides in a court case. It is so important that ever updated guidelines are pouring out of court precedent as to what files you can or cannot purge as well as to how long is reasonable before files, emails or any other type of data can be destroyed. If you erase the wrong file or backup tape too soon a court may penalize you. Such penalties can and have included forfeiture of the case itself.

That is just what happened to TorrentSpy in its case against the major film studios. Stating that TorrentSpy hid and destroyed evidence that made a fair trial impossible a federal judge ruled against the indexing service in court. "Although termination of a case is a harsh sanction appropriate only in 'extraordinary circumstances' ... the circumstances in this case are sufficiently extraordinary to merit such a sanction" wrote U.S. District Court judge Florence-Marie Cooper. "Defendants' conduct during discovery in this case has been obstreperous", the court continued. 'They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction.' . . ."

NEWLY REVISED FEDERAL RULES OF CIVIL PROCEDURE, EFFECTIVE DECEMBER 1ST, 2007

Arkfeld's Electronic Discovery and Evidence Alert, December 17, 2007

WHAT ARE THE EFFECTS OF THE NEWLY REVISED FEDERAL RULES OF CIVIL PROCEDURE, EFFECTIVE DECEMBER 1ST, 2007, ON ELECTRONIC DISCOVERY?

Answer: The newly revised federal rules effective December 1st, 2007, are primarily stylistic in form.  However, it is important to know that key numbering and captioning for the federal rules, including e-discovery amendments, have changed. For example, former rule 37(f) has been changed to 37(e) and entitled:

(e) Failure to Provide Electronically Stored Information.

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

For a complete copy of these new revised federal rules effective December 1st, 2007, please visit Cornell Law School - Federal Rules of Civil Procedure; at http://cfr.law.cornell.edu/rules/frcp/index.html#toc.

US firms in the dark over data retention.

US firms in the dark over data retention. Half of companies have no data retention policy. "A year after the launch of the revised Federal Rules of Civil Procedure (FRCP), more than 65 per cent of US businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence, new research claimed today. The revised rules set "aggressive timelines" for the discovery of electronic information such as email, and strict penalties for the destruction of evidence.  They also include 'safe harbour' provisions to protect organisations that implement standard retention policies for electronically stored information. The rules were drafted by the Supreme Court and approved by Congress and the US Judicial Conference, and have already had a profound effect on how the US legal system handles electronic evidence including emails and digital files. . . ."