Electronic Discovery and Evidence

Really - You Disclosed All Responsive Documents?

In a must read decision, the Court imposed sanctions (costs and attorney fees) under Rule 26(g) and Rule 37 for the failure of a party to properly preserve backup tapes and check other ESI storage locations. Counsel for Delta "represented to the Court approximately twenty times that it had produced every document responsive to Plaintiffs' discovery requests that it had in its possession." Yet, subsequent discovery found approximately 60,000 additional documents that had not been disclosed that were "found on the previously un-checked individual hard drives, and . . . documents located on recently discovered back-up tapes." In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 9-10 (N.D. Ga. Feb. 3, 2012).

New York State Reaffirms Influence of Zubulake and Pension Committee Federal Decisions and Rejects Lawyers for Civil Justice Amicus Position

In this important state decision, the New York Appellate Court reaffirmed the state law's adoption of many of the ediscovery principles set forth in the federal law including the Zubulake and Pension Committee decisions. In this breach of contract case, the Court issued an adverse inference instruction sanction and found that the defendant had failed to properly preserve ESI after "reasonable anticipation" of litigation. It was noteworthy that the Court refuted the defendant's and amicus's (Lawyers for Civil Justice) legal position as to the preservation date finding that  "[t]o adopt a rule requiring actual litigation or notice of a specific claim [to trigger the preservation obligation] ignores the reality of how business relationships disintegrate. . . . (Read more).

May 23-25, 2012 - eDiscovery and Digital Evidence Best Practices Instruction and Symposium

SAVE THESE DATES!
 
May 23-25, 2012
Phoenix, AZ 
 
eDiscovery and Digital Evidence Best Practices Instruction and Symposium

Keynote: Judge John Facciola

Watch for additional information or contact Michael Arkfeld at michael@arkfeld.com.

Online eDiscovery and Digital Evidence Course - Beginning March 14, 2012

We are pleased to announce the next Online eDiscovery and Digital Evidence course will begin on March 14, 2012.  The seven week curriculum will give you an in depth look at eDiscovery and information technology. This course features an online live, interactive instructional approach, instructional videos, and pre and post tests which are designed to provide a  connection between students and the faculty and show your progress in understanding e-discovery.
 
The primary instructor will be Michael Arkfeld, former AUSA litigator and author, who has written the seminal updated work on eDiscovery.

The course provides:

 

• Unparalleled course materials - authoritative, current, comprehensive publications and model practice forms
• Focused on technological concepts and legal principles
• Distinguished speakers include the Honorable John Facciola, and Craig Ball.
• Interactive, innovative live teaching platform
• Seven week live, online interactive course, includes over 15 hours of on demand instruction
• Pre and Post testing and Certificate of Course Completion credentials
• Access to online on-demand instruction for twelve months
• Limited seating

For further information contact Michael Arkfeld at michael@arkfeld.com or by phone at 602-993-1937
for a brochure or other information. But don't wait, space is limited.

Saved by the Judge - Understanding Keyword Searches and "Unallocated Space"

In a recent case, the parties "stipulated" to a set of keyword search terms that resulted in 64,382,929 hits from the unallocated space alone. The Court noted that "[t]hese hits represent[ed] an estimated 95 million pages of data [although the Court was unsure how the parties arrived at this number]. The plaintiff sought relief from reviewing for privilege all of this ESI which they agreed to provide. In the words of the Court "[t]his case highlights the dangers of carelessness and inattention in e-discovery." The Court bailed the plaintiff out of their stipulated agreement and found the production would be overly burdensome. I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D.N.J. Dec. 9, 2011).

How to Remove Your Google Search History Before Google's New Privacy Policy Takes Effect

"On March 1st, Google will implement its new, unified privacy policy, which will affect data Google has collected on you prior to March 1st as well as data it collects on you in the future. Until now, your Google Web History (your Google searches and sites visited) was cordoned off from Google's other products. This protection was especially important because search data can reveal particularly sensitive information about you, including facts about your location, interests, age, sexual orientation, religion, health concerns, and more. . . . (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.