e-Lessons Learned

eLessons Learned is proud to be a Media Partner with eDiscovery Readiness for Government, a two-day training conference exploring best practices for proactive electronic records management, information assurance and litigation readiness. Scheduled to be held at the Sheraton in Arlington, VA, June 8-9, 2010, this event is specifically designed for executives in the Federal and Government agencies involved with data and records management.

Speakers at the event include the Honorable John M. Facciola, US Magistrate Judge, US District Court, District of Columbia, Jason R. Baron, Director of Litigation, National Archives and Records Administration (NARA), Miriam Nisbet, Director, Office of Government Information Services (OGIS), National Archives and Records Administration (NARA), Catherine Teti, Managing Director for Knowledge Services, Chief Agency Privacy Officer, Government Accountability Office (GAO), and other respected members of the Federal Government.

Discounts available for executives in Federal and Government agencies. Call 1.646.200.7530 or visit http://www.eDiscoGov.com to register for the event and to view an updated agenda.

Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins?  Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident.

In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers.  After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault.  Defendants never provided the prisoner with the copy.   Continue reading »

Officer Keith James of the Coronado Police Department’s Task Force spotted Vincent Franklin Bennett’s boat travelling north near the U.S.-Mexico border on January 27, 2000. Upon boarding Bennett’s boat in San Diego Bay the officers noticed that the registration information did not match the boat, that the boat was riding extremely low in the water and there was a new high performance in the boat which provided space which the officers could not account for. Also, after boarding the officers learned that there was a warrant out for Bennett’s arrest. Once Bennett was removed for questioning, the boat was searched and x-rayed for marijuana that was hidden on board. The x-raying resulted in 1,541.5 pounds of marijuana being found.

The district court denied Bennett’s motion to suppress the marijuana and convicted Bennett of importing marijuana and intending to distribute marijuana. Following his convictions, Bennett appealed in anyway humanly possible, since otherwise he would be spending over 10 lovely years in prison. Continue reading »

This case arose from allegations of securities fraud against Collins & Aikman Corp made by the SEC.  Notably, during the course of discovery, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information.

First, the SEC produced massive amounts of documents. Specifically, the SEC produced 1.7 million documents (approximately 10.6 million pages), in response to defendant’s request for documents.  Moreover, these documents were in fifty-four separate categories maintained in different databases and containing different metadata protocols. Defendants were none too pleased about this and argued that the SEC failed to identify documents in response to its request for documents supporting particular factual allegations and instead dumped an unreasonable volume of documents.

In response, the SEC claimed that it did not “maintain a document collection relating specifically to the subject addressed” and thus its production reflected the documents as they were “kept in the regular course of business.”

However, during the course of discovery, information surfaced about the existence of approximately 175 file folders maintained by the SEC concerning the specific factual allegations of the complaint and maintained in the regular course of agency business. Continue reading »

The case of Rep. William Jefferson out of Louisiana may have confused people when it first came out in July 2006.  The D.C. Court of Appeals held that the FBI overreached its authority by seizing legislative data.  However, the court found that the copying of computer hard drives and other electronic media was “constitutionally permissible” because Jefferson had a chance to show that the electronic information that was obtained from his congressional office computer was connected to legislative work.  If Jefferson was able to show this connection, the information was subject to constitutional protection.

Some of you more astute individuals may have already identified the snafu with which the FBI now has to deal.  This ruling basically allowed the FBI to seize electronic information, but did not permit its review until Jefferson had the chance to look at it to determine whether or not it was legislative in nature.  But how can Jefferson review information after it has been seized?   Continue reading »

We’re all familiar with the saying “Don’t judge a book by its cover.”  Perhaps you’ve fallen victim to this wise cliche yourself as you wander through a Barnes & Noble and a fantastic drawing on some random novel sparks your attention, ultimately luring you to the register.  At home, you eagerly crack open the book and realize it’s not as fascinating as the cover had led you to believe.  Doing some research on the book would’ve saved you some money, right?

As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right.  After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity.  Lake is told that he can’t get the metadata.

Dead-end?  Nope.  If there’s a will there’s a way.  By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work.

Procedural History

After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City.  The City failed to produce several records related to his request and delayed the production of other records.  So what does one do?  Sue. Duh!

Continue reading »

In Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, the plaintiff was a government ethics watchdog.  CREW, as the organization is called, sued various government organizations, including the Executive Office of the President (yes, that President, George W. Bush), for an alleged failure to recover, restore, and preserve electronic communications created and/or received within the White House in violation of the Federal Records Act and their failure to establish an electronic records management system that complies with FRA.  The defendants in the case moved to dismiss the case on several grounds, each of which the court rejected.  That means that if nothing else, a lawsuit for violation of the Federal Records Act can survive and move forward.

Continue reading »