Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes.  Inadvertently produced privileged documents do not automatically lose their privilege protection.  However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful.  Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.

Essentially, FRE 502(b) says:  If you mistakenly produce a privileged document, privilege is not waived so long as (1) the disclosure was inadvertent, (2) you conducted a reasonable document review, and (3) you took reasonable steps to identify similar mistakes once you were put on notice that a privileged document had been inadvertently produced.  Attorneys risk waiver of privileges when they produce documents without a document review system in place.  Further, even those who take great care in reviewing documents prior to production may accidentally waive privilege if they are slow to respond to notification that they may have produced privileged documents.

In Sensient, plaintiff (the United States) produced 45,000 documents (135,000 pages).  On August 29, 2008, defendant returned 81 documents that appeared to be inadvertently produced by plaintiff.  Plaintiff responded on September 10, 2008, confirming that 80 of the 81 documents were in fact privileged and had been inadvertently produced.

In October, defendant returned another set of documents thought to have been inadvertently produced.  Plaintiff responded on November 21, 2008, claiming that most of those documents had been inadvertently produced and were protected by attorney-client or work-product protections.

Finally, after contesting that a deposition exhibit was privileged and had been inadvertently produced, plaintiff conducted a full scale “re-review of its entire 47,000 document database.”  As a result of the re-review, between June and August 2009, plaintiff identified 100 additional inadvertently produced documents that it claimed were subject to protection.

The court was asked to decide whether plaintiff had waived its privilege with respect to the inadvertently produced documents.  In addressing this issue, the court divided the documents identified by plaintiff as privileged into three categories: The September documents, the November documents, and the June and August documents.  Ultimately, the court held that privilege had not been waived with respect to the September documents because they were identified a mere eight work days after defendant notified plaintiff that privileged documents might have been inadvertently produced.  On the other hand, plaintiff was deemed to have waived its privilege with respect to the November and June and August documents.

So what did the plaintiff do that was wrong?  Why was the privilege not waived regarding the documents identified in September, while the documents identified in November, June, and August lost their privilege protection?  The court addressed the three FRE 502(b) factors in reaching its conclusion

First, the court explained that the documents had been produced inadvertently.  In holding the first prong established, the court noted the breadth of the production (135,000 pages) and opined that mistakes were bound to occur.   Second, the court held that plaintiff conducted a reasonable document review; and it emphasized these three facts: Plaintiff utilized a sophisticated computer program to assist in the document review, plaintiff employed no less than 12 professionals throughout the document review, and plaintiff performed quality control to ensure completeness of the review.   The waiver issue boiled down to the third prong.

The third prong – promptly taking reasonable steps to rectify error – is where plaintiff ran into trouble.  The documents identified in September as privileged did not lose their protection because waiting eight days after being notified of the error to confirm privileged status was reasonable.  In contrast, waiting three months before rectifying an inadvertent production, is not reasonable.

Where plaintiff went wrong was in its reliance on defendants to continue to identify potentially privileged documents for it.  According to the court, once plaintiff was notified that privileged documents may have been inadvertently produced, the reasonableness clock began to run.  Not only was plaintiff responsible for re-reviewing the specific documents defendant brought to its attention, but also plaintiff was put on notice that other privileged information may have been inadvertently produced.  Plaintiff should have re-reviewed all produced documents after the first notice.

eLesson: One way to avoid similar problems is to agree on a “claw back” provision in the joint discovery plan.  The claw back provision may “undo” the document production.  In other words, a producing party does not waive privileges associated with any documents that are inadvertently produced irrespective of the care taken by the disclosing party.

Without a claw back provision, an attorney must implement sufficiently reasonable methods of document review prior to production; as well as set in place a prompt re-review system once notified that inadvertent production may have taken place.  

Tuesday, February 2, 2010.  Another cold February weekday workday morning.  Another noisy, bumpy, spill-my-coffee-on-my-newspaper-every-two-minutes train to the city.  I looked around me, and observed the others commuting from Newark to midtown Manhattan, beginning their daze days with the lethargy one might associate with a Jets fan circa last Monday.

But not me.  This was day two of LegalTech New York 2010, and I was on my way to this premier legal technology showcase sponsored by ALM.  Given how great my experiences were last year, I was amped up and ready to go.  So, with my coffee down and chin up, I grabbed the B line and took to the Hilton New York.The day began with the Blogger’s Breakfast.  As you might recall from my last experience with LegalTech, they cater to bloggers, providing them with a meet & greet, as well as prime seating and access to all of the lectures and keynotes.   While at the breakfast, I was able to meet some new faces, like the fellas from RocketMatter, and was able to reconnect with blogstars like Ari Kaplan, of Ari Kaplan Advisors, and the one and only Robert Ambrogi, ex-Legal Blog Watcher and founder of LawSites.  After a chat about legal research iPhone apps and some “shameless plugging,” I was off to catch some speaker sessions.

LegalTech put together quite an impressive set of panels for this particular day.  Some of the most well known names in the industry – eDiscovelebrities, if you will — were featured in timely discussions about the electronic discovery world’s biggest issues.  Mark Howitson (Deputy General Counsel, Facebook), Patrick Oot (General Counsel, eDiscovery Institute), Jason Baron (Director of Litigation, National Archives), Laura Kibbe (Senior VP, Epiq), and Allison Brecher (Senior Litigation Counsel, Marsh & McLennan) are just a few (understatement) of the speakers that attendees were able to catch. Plus, those invited to a private Fios, Inc., lunch at the Warwick Hotel across the street were able to listen to an education discussion among key players in the field, including Leonard Gordon (Federal Trade Commission), David G. Keyko, (Partner, Pillsbury Winthrop Shaw Pittman, LLP) and Joshua R. Weiss (Special Counsel, Cadwalader Wickersham & Taft, LLP), moderated by blogstar Mary Mack (Fios, Inc.).

I even spotted a couple of eDiscovelebrities walking the halls and browsing the exhibits, notably: Laura Zubulake (the princess of eDiscovery), James Batson (Zubulake’s Counsel), and Alex Arato (Associate General Counsel, CA, Inc.).

Throughout the day, I was also able to visit the vendors’ stations, and chat with the models representatives of the various companies.  Some vendors’ displays were quite creative this year, with one giving away a smart car, and another by ConnectInPrivate’s Bill Montgomery, which demonstrated (via a glass outhouse in the center of the showroom floor) how secure the internet really is (not very).  I was even able to score a t-shirt, hat, and a couple million pens to show off to my peers when I returned to class the next day.  But soon enough, 5:00PM came, the vendors started packing it in, and I realized it was time to go…

To the Fios, Inc. VIP afterparty, of course!  Thanks to Dennis Kiker (Director, Professional Services, Fios, Inc.), I was able to get into the exclusive event following the show, and met more eDiscovelebrities like Gabe Acevedo, of Gabe’s Guide to the e-Discovery Universe, George Socha, of Socha Consulting, and Brett Burney of Burney Consultants.  Plus, who doesn’t like a few free drinks?

In all seriousness, though, it was great to get feedback, blog tips, and career advice from each of the folks I met at LegalTech this year.  The spirit of the show as a whole was running high, and attitudes were very positive throughout the entire day.  So once again, LegalTech, allow me to thank you for your gracious hospitality, and I look forward to seeing you again next year.

To everyone else, look forward to seeing some video interviews from the show posted soon.  (For real this time!)

Increasingly, our society devotes a lot of time and energy to the use of smartphones. Whether it is a BlackBerry or an iPhone, it is the craze, and many now feel that they need to access their emails from the palm of their hands. And the corporate world is no different. Executives spend as much time focusing on the best ways to read emails, send and receive instant messages, and access the Web as the rest of us.

However, executives (and the corporations they work for) who use company intranets, also need to worry about the possibility of unintentional data distribution — meaning they should concern themselves with the fact that confidential information may be disseminated unintentionally or unexpectedly to the public. For example, if an employee-owned smartphone was reported lost or stolen, what would a company do to make any relevant data on the device unreadable? Maintaining mobile communication security is an important issue that companies need to address, now.

In his article, John Sawyer recommends that the key to solving the problem of mobile communication security is to provide “support” for such devices. Why does that mean? Whenever a company releases a new device, or software, it is bound to encounter inquiries from employees if some malfunction occurs. Typically, IT receives the calls for any technical issue and works to fix the problems.  Sometimes outside service providers supply this support. Sawyer suggests that corporations handle the support in-house because it is simply too difficult to try and manage a wealth of devices from different service providers and have them fit under a single security system. Providing employees with a uniform service will help ease a company’s problems. Still, it is important to note that there are some options for managing multiple outside service providers, including Zenprise and BoxTone.

Other security suggestions include having employees use a single computing platform or encrypt company-issued devices. This will help when creating policies specifically for the correct use of these smartphones.

We are happy to report that we have been named the official blog of Campbell University’s Norman Adrian Wiggins School of Law’s Annual Law Review Symposium entitled Emerging Issues in Electronic Discovery.  This educational event is on Friday, January 22 from 9:00 AM to 5:00 PM.  Taken from the promotional materials created for the event:

Electronic Discovery is a relatively new area of the law and is constantly evolving.  Many attorneys are not aware of the potential issues that arise when a case involves electronic discovery. Examples of the types of data included in electronic discovery are e-mail, instant messaging chats, documents (such as Microsoft Office document files), accounting databases, CAD/CAM files, websites,  and any other electronically stored information which could be relevant evidence in a law suit such as voicemails and data from “smartphones”.   Given the complexities of modern litigation and the wide variety of information systems on the market, electronic discovery often requires IT professionals from both parties to the litigation to communicate directly to address technology incompatibilities and agree on production formats. Failure to anticipate litigation that involves Electronically Stored Information (ESI) leads to additional time and unforeseen costs in acquiring new technology or adapting existing technology to accommodate the collected data. Litigation involving ESI requires collaboration among the attorneys and parties involved. E-Discovery also raises many ethical issues including those related to metadata.

The keynote speaker for the event is the Honorable John L. Carroll.  Pricing is at $150 for general admission, and $100 for Campbell University Law School Alumni.  Judges fees are complementary.  CLE credits will be available, and breakfast and lunch will be provided.

To register for the event, or to find out more information, visit this page:  Campbell Law | Law Review Symposium 2010

To review the agenda for the event, click here.

At the pre-trial Case Management Conference, the Court ordered the parties to submit estimates of the costs involved in the production of documents in searchable Tagged Image File Format (“TIFF”) with Optical Character Recognition (“OCR”) before it made a ruling on the format of electronic discovery.  OCR is how static images of text are translated into a format, via a computer software program, that can be searched or read electronically.  It is only used to render documents maintained in hard copy format, as opposed to electronic documents, searchable.  The Court noted that “OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents.”

The parties agreed that all documents would be produced in TIFF format, but the Defendant, S.C. Johnson & Son, Inc., argued that it should not have to perform the OCR process on these documents prior to production because, in Defendant’s estimation, the total cost of the OCR would exceed $200,000.

The Defendant, however, failed to provide the Court with a per page cost estimate or even the total number of pages on which it expected to perform the OCR process.  The Court also found it “difficult to believe that in the age of electronically stored information so much of the requested data is only maintained in hard copy format which would require OCR to be searchable” and concluded that “Defendant has failed to provide any support whatsoever for its estimate.”

Nonetheless, Defendant asserted that the cost burden of the OCR process should be shifted.  In Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y.2003); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y.2002), aff’d 2002 WL 975713 (S.D.N.Y. May 9, 2002), the Court held that cost shifting could be considered when the data was relatively inaccessible and formulated a seven factor test: (1) the extent to which the request was specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, when compared to the amount in controversy; (4) the total cost of production, when compared to the resources available to each party; (5) the relative ability of each party to control costs and the incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. Zubulake, 217 F.R.D. at 322. These seven factors should not be weighted equally; rather, they should be considered in numerical order of descending importance, where factors one and two are the most important and factor seven is the least important.  Id. at 323.

Applying the Zubulake factors to the case at bar, the Court concluded that the seven factors did not favor cost-shifting in this instance.  The Court noted that Defendant failed to contend that the information requested was not relevant or that it was unlikely to lead to the discovery admissible information.  Additionally, The Defendant failed to show that the documents requested were obtainable from other sources.

Thus, the Court ordered S.C. Johnson & Son, Inc., to perform its own OCR – and pay for it, too.  The painfully simple lesson learned here is: don’t make a motion to share costs without at least providing some minimal amount of evidence in support of your otherwise specious (and probably exaggerated) estimations of cost.

e-Discovery Cowboy is a third-year law student at Seton Hall University in Newark, New Jersey.  He will be moving to Dallas in just a few short weeks to study for the bar and then work at a firm.  Yeeehawww.

In Smith v. Slifer, one of the defendant entity’s executives, after being served with notice of the lawsuit,  allegedly took it upon himself to download and use a program called Anti Tracks in order to wipe clean his home personal computer of allegedly damaging evididence.  I emphasize the word “allegedly” because the Anti Tracks program was apparently pretty effective, rendering it impossible for plaintiff’s experts to garner any concrete evidence that relevant evidence was in fact destroyed (although they were easily able to establish that several documents were deleted).

The court (citing Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614 (D.Colo.2007)) set forth the pertinent rules of law as follows:

1. Putative litigants have a duty to preserve documents that may be relevant to pending or imminent litigation;
2. Spoliation means the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation;
3. A party may be sanctioned for spoliation by way of default judgment or adverse inference instruction.

The court noted that there was no “smoking gun” establishing who caused the loss of data, but nonetheless found that plaintiff’s established, at least by a preponderance, that defendants destroyed evidence in bad faith after the duty to preserve the evidence had arisen.  The court based its finding primarily upon the “highly-suspect timing” of the usage of Anti Tracks.

Based on its finding of bad faith spoliation, the court granted plaintiff’s request for an adverse inference instruction.

So, to reiterate the lesson that should have been learned from Enron and countless subsequent cases involving the destruction of evidence: once there’s a possibility that you’ll be sued, don’t shred or delete.

MWS is a third-year law student at Seton Hall University in Newark, New Jersey.

Don’t take your discovery obligations lightly!  When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary.  Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance.  Can you afford that?

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In B & G Management, B&G sued Lexington for business interruption losses, among other things,  supposedly attributable to Hurricane Jeanne at the Treasure Island Resort (Resort), one of B&G’s properties.  According to B&G, the losses for this claim amounted to $25 Million dollars.

To prove that the Resort was non-operational before Jeanne and therefore no operation losses could be attributed to the hurricane, on August 17, 2007, Lexington requested B&G to produce every document, including electronically stored information (ESI), which constituted hotel bills for each hotel stay (Room Folios) at the Treasure Island property starting from August 13, 2004.  Lexington defined ESI as “information, without deletion or alteration of metadata, in its native form, [with indication of the] computer hardware and the software program(s) needed to translate the information into useable form in the information’s native format.”

On November 9, 2007, B&G objected on the basis that it was irrelevant.  The standard for relevance, however, is so broad that this objection essentially amounted to a flat-out NO!  When faced with a motion to compel, B&G submitted supplemental answers but this time it was more defiant in its refusal to produce the requested documents.

Lexington filed another motion to compel and this time the court ordered B&G to produce the responsive documents in the format requested by Lexington on or before April 30, 2008.

On April 30, 2008, B&G’s counsel delivered 7 discs to Lexington.  The discs, however, did not contain the ESI in the form specified by Lexington, and nor did it contain the Room Folios.

This time Lexington filed a motion for sanctions.  Rather than imposing sanctions, the court gave B&G yet another chance and ordered it to produce all responsive information in the ESI format requested by Lexington on or before July 11, 2008.  B&G did not produce the requested information by that time.

On July 29, 2008, during the deposition of a B&G representative, Lexington learned that B&G used the electronic property management system, IQWare, and that if Room Folios existed then they would be contained in that system.  The representative also testified that he had NEVER been asked to search for the Resort Room Folios.

Finally, in mid-to-late December 2008, B&G asked its in-house legal assistant to search for the Room Folios for the Resort.  When she accessed IQWare, she found a large number of room folios for the requested time period; but in order to produce the documents as quickly as possible she did not analyze them to determine if they were complete.  She also did not download the documents with metadata in its native form because the system did not permit her to do so.  B&G forwarded these documents to its outside counsel on December 31, 2008 claiming that it was the complete set.  On January 9, 2009, B&G’s attorneys forwarded the documents to Lexington.

Meanwhile, on January 7, 2009, the court had issued another order advising both parties, among other things, that if their production needs to be supplemented, then it must be served no later than 5 business days after the information is discovered by counsel.

When Lexington’s expert reviewed the documents produced in January 2009, he discovered significant disparity between the rooms sold as suggested by the Room Folios and by B&G’s financial records.  He concluded that either all of the Room Folios were not provided or that B&G’s rooms sold statistics were over stated.

When B&G’s counsel received Lexington’s expert report, he asked the in-house assistant to search for the rest of the Room Folios.  This time on April 29, 2009, the assistant reviewed an index of boxes stored in B&G’s offsite storage facility and found additional Room Folios for the requested time period.  Without analyzing the Room Folios she sent them to B&G’s outside counsel on May 4, 2009.  She was not instructed to ensure that these were all the Room Folios that existed and so she stopped looking at that time.

On May 11, 2009, B&G’s expert reviewed the new documents and concluded that a large number of Room Folios were still missing.  B&G’s attorneys withheld producing the new documents until May 18, 2009, twice the 5-business-day period specified in the January 7, 2009 order.  In the meantime, B&G’s counsel again requested the assistant to search for the missing Room Folios.  Finally, she found additional records on May 26, 2009.
Lexington again sought sanctions for the violation of the discovery orders.  This time the court held that B&G had an obligation to diligently search for and timely produce all requested documents, after being ordered by the court to do so.

As a result of B&G’s stubborn disobedience, the court precluded B&G from presenting any evidence regarding its business interruption losses at the Resort caused by Hurricane Jeanne.  The Court rejected the argument that such a severe sanction should not be imposed on B&G because the decisions regarding discovery were made by its lawyers.  In so finding, the court held that B&G was responsible for its counsel’s conduct.  If it were otherwise, parties such as B&G could hide behind its chosen counsel whenever it felt free to flout a court’s discovery orders.  The loss of a $25 Million dollar claim was not all she wrote for B&G.  B&G and its attorneys were also ordered to pay Lexington’s attorneys fees and costs, which, in a case of this magnitude could certainly be significant.

We may never know why B&G or its attorneys never conducted a thorough search for the documents requested by Lexington when such a huge amount was at stake.  B&G’s costly mistakes serves as an important lesson to all of us:  Conduct a thorough search of your files and produce the requested documents in a timely manner or you could be out $25 Million dollars.

Jignesh Shah, a recent law grad and Senior Business Litigation Associate admitted to practice in New Jersey and New York, currently consults on a per diem basis.  He can be contacted at jigses@gmail.com

While we appreciate our recent recognition in the ABA Journal Magazine, it’s time to get back to what we do best.  Following the “Vote” link, we have a new lesson for you to digest. [- FG]

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This case just goes to show you the importance of effective counsel.  In the case, Rhino Advisors, Inc., a non-party, sought in camera review of 260 documents out of 67,000 documents that it had produced to the SEC in August 2003.  Rhino wanted to “claw back” these documents, claiming they were privileged and inadvertently produced.

The court analyzed Rhino’s claim using the four factors set forth in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., and concluded that based Rhino had waived any privilege that it may have asserted.  Before discussing the court’s analysis, a brief rendition of the facts is required.

The SEC conducted investigations in 2002 of Rhino and its main executive, Thomas Badian, regarding possible securities violations conducted by Rhino.  Rhino and Badian agreed to settle with the SEC in early 2003, with part of the settlement requiring Rhino to respond to 23 detailed questions.  Its attorney, Robert Charron, submitted a signed reply to the questions posed by the SEC, including an index of all the documents that were relied upon when answering the SEC’s questions, in either paper or electronic form.

On August 6, 2003, Bryan Cave LLP, as attorneys for Rhino, produced 47 boxes of hard copies of email documents from Rhino’s computer system, accompanied by a letter from its attorney’s firm stating that the production “shall not be deemed or construed” as waiver and that if privileged materials were inadvertently produced, Rhino reserved the right to request their return.

The U.S. Attorney’s office subpoenaed and received documents from Rhino in support of their criminal investigation of Andreas Badian (Thomas had fled the country), but later dropped the criminal charges.  Therefore, only the SEC complaint was entered against Andreas Badian (since the settlement only applied to Thomas).  The SEC issued a subpoena in October 2007 to Charron for the production of all the documents listed in the index that he produced in 2003.  Charron sought the advice of DLA Piper LLP, Badian’s attorneys, which notified the SEC that he and Rhino were withholding some documents as privileged.

The SEC objected to the privilege assertions on the grounds that any privilege was waived when Bryan Cave LLP produced the documents in 2003.  The court analyzed the Lois factors, which are:

1. The reasonableness of the precautions to prevent inadvertent disclosure of privileged documents.
2. The time taken to rectify the error.
3. The extent of the disclosure.
4. The overarching issue of fairness and the protection of an appropriate privilege which…must be judged against the care or negligence with which the privilege is guarded…

In analyzing the four factors against the facts of the case, United States Magistrate Judge Douglas Eaton analyzed the four factors.  Judge Eaton analyzed the factors out of order, but ultimately came to the conclusion that Rhino had waived its right to assert privilege.

First, he emphasized that the lack of precautions taken by Rhino or Bryan Cave LLP seriously impeded any privilege arguments.  Eaton concluded that no precautions were taken.

Next, Judge Eaton noted that the extent of the production was a significant amount.  Rhino additionally claimed that approximately 5% of the 67,000 documents were privileged, but later reduced it to 260 when the SEC scoffed at the large percentage of documents that were claimed to be “inadvertently produced.”  However, Judge Eaton stressed that this was still a significant number of documents to recall.

Judge Eaton then stressed that the standard for the second factor was when the producing party realized that privileged information had been disclosed.  The court found that Rhino and Bryan Cave LLP discovered the possibility of privileged documents in August 2003 (i.e. a significant period of time had elapsed).

Finally, Judge Eaton concluded that since Rhino acted with a lack of care in guarding its privilege, its carelessness could not be disregarded.  Eaton noted that there was “no fairness” in precluding the SEC from using any of the documents produced by Bryan Cave LLP.

It appears that Judge Eaton made an informed decision regarding the waiver of privilege, carefully analyzing the facts and how they compared to the Lois factors.  It appears that if a party makes efforts to protect its privileged documents, ensures that an excessive amount of documents  were disclosed, and attempts to retrieve the inadvertent disclosures were made in a timely manner, a court will look with favor by allowing a party to assert its privilege (and denying another party’s request that privilege was waived).

Matthew is a magna cum laude graduate of Seton Hall University, where he received a B.S. degree with a concentration in Accounting, and has since graduated from Seton Hall Law.

Each year, the ABA Journal publishes its annual top-100 blawgs list — the best legal blogs as selected by the Journal’s editors. This year, it asked its readers and blawg authors to nominate the blawgs they find to be the most noteworthy prior to editorial review.  The votes have been tallied, and the blawgs, reviewed.  Today, we are pleased to announce that among over 2500 legal blogs, e-Lessons Learned has made the Top-100 list for the Third Annual ABA Journal Blawg 100.

To the ABA Journal and all of our readers and fellow bloggers that helped e-Lessons Learned to achieve this wonderful accolade:

Thank you so very much!

It is an incredible honor to receive this recognition just 11 months after our inception, and the student bloggers, editors and founders of e-Lessons Learned are truly grateful.  Expect plenty more from us as we grow through the years, and feel free to post your suggestions on how we can further improve our blog (i.e. more video content, etc.) in the comments section, below.

And if you enjoy what we do, please vote for us TODAY as the “Best Blawg” in the ABA Journal’s “Tech” category. (Voting polls close December 31)

As we do with our articles, we want to give you the simplest breakdown of what to do. Follow these four quick and easy steps, and you’ll register your vote for us in a matter of minutes.  (Links will open in a separate window so you won’t lose your place)

1. To vote, you’ll need to register for the ABA Journal web page.  Click here and enter the requested information, and click “Submit.”  [Remember your user name and password because you'll need it to login.]
2. After you do that, a confirmation email will be emailed to you within seconds.  Click on the activation link in the email.  Once activated, return to these instructions and follow step 3.
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4. Finally, click here to go to our category, scroll down to the 5th blog listed, and click the green vote “+” button to the left of the e-Lessons Learned profile.

On behalf of Fernando Pinguelo, the student bloggers, and the entire eLLblog Team, I offer our sincere and humble thanks for supporting e-Lessons Learned:  Where law, technology, and human error loyal readers collide.

In Palisades Collection, L.L.C. v. Graubard, the Appellate Division of the Superior Court of New Jersey held that a court may not treat a Wikipedia entry  as conclusive evidence of a fact over which parties to a case clearly disagree. The plaintiff, Palisades Collection, L.L.C. (“Palisades”), was a collection agency that purchased a portfolio of delinquent accounts from Bank One Corporation (“Bank One”).  Palisades alleged that one of the overdue accounts belonged to the defendant.

On February 3, 2006, Palisades’ attorney notified the defendant that Bank One had sold his client the defendant’s account, which the defendant originally owed to Chevy Chase Bank, and that Palisades’ attorney was now seeking to collect the debt on behalf of his client. Three days later, the defendant sent Palisades’ attorney a letter stating that he was disputing the validity of the claim because he could not recall Bank One Corporation ever granting him credit.

On May 5, 2006, Palisades filed an action claiming it was the owner of an account on which the defendant owed money and demanding it be paid. At trial, Palisades’ attorney sought to prove Palisades’ ownership of the account by entering into evidence a set of documents obtained from the internet. The first document was a copy of an electronic version of a New York Times article reporting that Bank One had purchased the credit card operations of Chevy Chase Bank in 1998. The second document was a copy of a Wikipedia entry stating that J.P. Morgan & Company had purchased Bank One in 2004. Based on this information, Palisades’ attorney represented to the court that J.P. Morgan then sold its Chevy Chase accounts, including the defendant’s account, to his client.

Over the defendant’s objections, the trial judge allowed Palisades’ attorney to enter the documents into evidence. In support of his decision, the judge took judicial notice that (1) “banks are frequently purchased” and (2) “ultimately [the] defendant’s account landed at J.P. Morgan . . . [and] was assigned or sold to Palisades [].”

The appellate court, however, disagreed with this ruling. The purpose of judicial notice, the court explained, is to save time and to promote judicial economy by eliminating the need for parties to prove facts that cannot seriously be disputed and that are generally or universally accepted as true. It must not be used “to circumvent the rule against hearsay and thereby deprive a party of the right of cross-examination on a contested material issue of fact.” Above all, it must not be used to determine the ultimate legal issue in dispute in a given case.

With regard to Palisades’ case, the court noted the question of Palisades’ standing to prosecute the claim was one of the central issues in dispute. By taking judicial notice of its ownership of the defendant’s account, the court explained, the trial judge deprived the defendant of his right to cross examination over  a contested material fact and impermissibly settled the ultimate legal issue in dispute; that is, Palisades’ standing to prosecute the claim.

Furthermore, the court concluded, a trial judge’s acceptance of a Wikipedia entry as a basis for taking judicial notice runs counter to the principle that judicial notice must be based upon “sources whose accuracy cannot be reasonably questioned.” As the court explained, the problem with using Wikipedia a basis for judicial notice is that the content of any given  article can be changed by someone whose opinion does not correspond with the state of knowledge in the relevant fields. “Such a malleable source of information is inherently unreliable, and clearly not one ‘whose accuracy cannot be reasonably questioned.’”

Patrick J. Ryan has since graduated from Seton Hall University School of Law. He has focused much of his training and legal education on bankruptcy and state law insolvency proceedings.