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.
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
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
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 .
The Court has withdrawn the Nat'l Day Laborer Org.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).
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)
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)
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 . . .)
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)
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).