Government Officials

Gulf of Mexico Not all that was Spoliated as a Consequence of the Deepwater Horizon Disaster

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An Inmate vs. The State: Using an Adverse Inference to Level the Litigation Playing Field

Don’t override your surveillance tapes or video too soon, otherwise you could be subjected to spoilation sanctions if the evidence is later needed in court. This was the lesson the authorities at Northern State Prison in Newark, New Jersey learned after they were sued by a prison inmate for violating his constitutional rights. Know your client’s over-writing policies and preserve tape or video, when it is reasonably foreseeable that the evidence would be subject to discovery.

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Photogrammetry for the Win!… If you know what it does.

The Federal Rules of Evidence (“FRE”) are notorious for their complication. Hearsay Rules continue to astound attorneys across the country. Now, in a more modern era, we have the advanced electronics capable of aiding the evidentiary process in many ways. But with a jury of lay people, it is difficult to describe the use of such equipment during a trial without the use of an expert witness.

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Court Orders Sanctions Against The U.S. Attorney’s Office in New Jersey for Failing to Preserve Text Messages From an FBI Investigation

In United States v. Suarez, the United States District Court for the District of New Jersey held that the government violated its duty to preserve relevant data during an ongoing investigation aimed at prosecution of certain individuals.

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A New Wave of ”Megan’s Law” Legislation: Internet Sex Offender Registries

New Jersey is among the thirty-one states to adopt a sex offender Internet registry web sites as part of “Megan’s Law” legislation. In 2000, New Jersey implemented new legislation regarding sex offenders. In A.A. v. State of N.J., convicted sex offenders challenged constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution, a state constitutional amendment which authorizes the creation of an Internet sex offender registry (“Registry”), and an amendment to “Megan’s Law” known as the Internet Registry Act, which seeks to implement the Registry and would allow unlimited public access to certain information. The Third Circuit, however, denied the registrants’ motions for preliminary injunctions and held that the state could implement such a registry.

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Second Edition Released! eLL blog reviews Managing Discovery of Electronic Information: A Pocket Guide for Judges (Part 1 of 3)

Very recently the second edition of the eDiscovery pocket guide for federal judges was released by the Federal Judicial Center. The new edition is key to understanding how judges view eDiscovery requests and how attorneys can avoid costly sanctions and unnecessary and damaging production. The Guide is comprehensive and expands on many of the fundamental issues surrounding electronic discovery that have further developed since the first edition. e-Lessons Learned will be posting a three-part series summarizing the Guide to help highlight the key issues that judges consider when dealing with electronic discovery. Part One will focus on Rule 16 conferences and the scope of electronic discovery under Rule 26. Part Two will focus on cost-shifting, subpoenas and implicated third parties, and form of production (stay tuned) Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned)

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7 Factors + 7 Factors = Cost Shifting and a “Win” for Defendants

The court’s decision to impose a cost shifting condition on the discovery of emails began with an analysis of the seven factors set forth in the Advisory Committee Notes to Fed. R. Civ. P. 26(b)(2)(B), included a determination that plaintiffs had not established good cause for production, and ended with another seven factor test which demonstrated the importance of the court’s authority to set conditions on discovery.

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Treasure Map to Avoiding Discovery Obligations

In the midst of deciding Defendants’ Motion to Dismiss and Plaintiffs’ Motion to Amend concerning 42 U.S.C. 1983, 1985(3), the New Jersey Civil Rights Act, and civil conspiracy claims against two state officials, the court in Major Tours addressed an appeal of a magistrate judge’s order regarding an e-mail discovery dispute.  As the court affirmed the magistrate’s holding that production was unduly burdensome and good cause was not shown, did it offer the state and future defendants a treasure map to avoiding discovery obligations? In Major Tours, the plunder was at least a million dollars worth of discovery and avoidance of possible sanctions for spoliation, not to mention the possible value of the e-mails that were not produced.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments.  However, such technology does not always efficiently replace good, old-fashioned human effort.  For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user.  Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work.  The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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CISPA Moves Forward, But Still Just a Bill

In a nutshell, the Cyber Intelligence Sharing and Protection Act (CISPA) provides the government with the power to share classified information about security threats with certain U.S. companies so that these companies can use that information to better protect their computer networks that store sensitive, proprietary, and confidential information, including intellectual property and trade secrets. CISPA allows companies to share information relating to cyber security with government authorities and protects those companies against privacy lawsuits. CISPA has broad support from many of the U.S.’s most powerful and influential companies and trade associations, including IBM and Verizon, the Securities Industry and Financial Markets Association, and the American Petroleum Institute. For a list of members of the House who supported CISPA, click here; for a list of businesses and trade associations that support CISPA, click here.

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