Electronic Discovery and Evidence

Digital Prescriptions

UB, UR technologies place prescriptions on digital paper

"Illegible prescriptions scrawled on physicians' notepads could become a thing of the past, thanks to two complementary technologies developed at the University at Buffalo and the University of Rochester that together are being licensed by mobileLexis, a digital paper solutions company based in Salt Lake City. . . . .Digital paper, which is not yet on the market, looks and feels like its pulp-derived ancestor, but is endlessly reusable, recording, capturing and sending text that users write by hand, using a specially designed, electronic pen. . . . MDScript product, which will process prescriptions in real-time through the transmission of pen-stroke information to a computer or server. The Accuscript technology will translate the handwritten information into digital data and the AuthentImage technology then will secure it for transmission to the pharmacy or health-care insurance provider."

Comment: Another source of medical related electronic evidence.

Lighter Side - Only in Italy - Evidence Inadmissible

Parmalat Creditor Lawyers Say $7.7 Billion Assets Located

"MILAN -(Dow Jones)- Three lawyers representing Parmalat bondholders and shareholders plan to file a document contesting Parmalat Finanziaria SpA's (PRF.MI, news) insolvency on the grounds a private investigator has located $7.7 billion in assets allegedly missing from its accounts.

A document shown to media by the lawyers, who said they represent hundreds of Parmalat bondholders and shareholders, said an unnamed private investigator discovered $7.03 billion in Parmalat assets being held by Bank of America Corp. (BAC, news), as well as $510 million extracted from the Epicurum Fund. . .
This evidence wouldn't be admissable in a fraud-related criminal trial because it was based on electronic transaction records, rather than original documents or transcripts, he said."

Electronic Tracking of Cows

U.S. livestock tracking system may begin mid-2004

"U.S. farmers and ranchers will take the first step toward a nationwide animal tracking system in mid-2004, a program intended to swiftly pinpoint the history of livestock suspected of mad cow disease or other dangerous diseases, program developers said on Monday. . . The program would focus on beef and dairy cattle, hogs and sheep at first. Horses, fish, poultry, goats, camelids such as llamas, and cervids such as deer and elk, would come next.

'Electronic identification may be necessary for efficient and accurate data collection and animal tracking in some species or in particular animal movement scenarios,' the web site said.

Under the timeline written by developers, all cattle, swine and "small ruminants" being shipped between states would have an individual or group identification number by July 2005. By July 2006, all remaining species would have animal and farm IDs."

Anonymous E-mailer Identity Discovered

Jane Doe ruling limits effect of RIAA legal defeat

"At the same time the DC Appeals court was struggling with anonymous music fans, a Superior Court in Connecticut was struggling with an anonymous e-mailer to a French company, La Societe Metro Cash & Carry France.

Apparently this e-mailer sent electronic communications to many of the company's employees questioning the wisdom and abilities of corporate officers. La Societe Metro sued in France under French defamation law, and also filed a discovery lawsuit against Time Warner (the ISP from which the e-mail originated) in Connecticut. The French company wanted the ISP to give up the subscriber information.

After discussing the history of anonymous speech, and the First Amendment rights to post material on the Internet, the Connecticut court ordered Time Warner to reveal the subscriber information, finding that the French company had shown a prima facie case of defamation, and that the subscriber information was relevant."

Subpoenaing 3rd Party Electronic Information

Record Industry May Not Subpoena Providers
"WASHINGTON (AP) - The recording industry can't force Internet providers to identify music downloaders, a federal appeals court said Friday in a major decision shielding online privacy while undercutting the industry's anti-piracy campaign.

The ruling does not legalize distributing copyrighted songs over the Internet, but it will greatly increase the cost and effort for the Washington-based Recording Industry Association of America to track such activity and sue those who are swapping music online."

Sanctions Imposed for Subpoenaing E-mail from Internet Service Provider (ISP)

Just because e-mails are available through an Internet Service Provider does not mean that you have the right to subpoena them. In a must read decision the 9th Circuit recently imposed sanctions on defendants for an overbroad subpoena of “[a]ll copies of emails sent or received by anyone at ICA, with no limitation as to time or scope.” Theofel vs. Farey-Jones, 341 F.3d 978, 981 (9th Cir. 2003). The plaintiffs argued that the improper disclosure of e-mails resulted in the violation of the Stored Communications Act, the Wiretap Act, and the Computer Fraud and Abuse Act.

The Court of Appeals, Kozinski, Circuit Judge, held that: (1) disclosure by plaintiffs ISP of e-mail messages, pursuant to defendants invalid and overly broad subpoena, did not constitute an "authorized" disclosure under the Stored Communications Act; (2) e-mail messages which were delivered to recipient and stored by ISP were in "electronic storage," under Stored Communications Act; (3) no "interception" occurred in violation of Wiretap Act; (4) Computer Fraud and Abuse Act provided cause of action for unauthorized access to information stored on third party's computer; and (5) Noerr-Pennington immunity did not protect conduct of serving invalid subpoena.