- eLessons Learned
- Press and Publicity
- About Our Team
- Contact eLL Blog
Welcome to the new eLessons Learned
eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.
Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.
Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There
Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There
On October 7, 1992, the United States Department of Commerce created an antidumping on extruded rubber thread in Malaysia. The intent of antidumping orders is to discourage the “dumping” of foreign goods into the U.S. for substantially lower prices. The Department of Commerce sought financial records from international companies involved in the importing and exporting of the antidumping order(s), in order to create accurate administrative reviews of the collected information. From the Department. of Commerce’s results, the U.S. determines dumping margins for each “dumping” importer. If there is a challenge to the Department of Commerce’s final results, the court that oversaw the case would sustain the Department of Commerce’s final results as long as they are supported by substantial evidence on the record. “Substantial evidence” is defined as more than a “mere scintilla” supporting a conclusion. The main issue being challenged by Heveafil is that the Department of Commerce refused to base Heveafil’s dumping margin on their bill of materials, determining the bill of materials to have failed verification. The court held that the Department of Commerce was within its discretion because Heveafil’s production of the bill of materials, downloaded on a computer disk in response to the government’s questionnaires and requests for information, was not generated “in the ordinary course of business,” which the government required as part of verification of documents. Since, the bill of materials was originally maintained on database, that was later purged, the computer disk produced did not meet the government’s verification requirements. Alternatively, Commerce attempted to verify the information through other sources and documents but Heveafil’s 1996 Budget Report was not given its entirety and the partial Budget Report and inventory records did not correlate. Given the unverified documents, the court reasoned that the Department of Commerce could reject the financial records in total, even though Heveafil challenged that it only failed verification for a portion of its information. The government stated in its final results, which the court agreed with, that it does not make sense to only reject the part of Heveafil’s records that were unverifiable since the Department of Commerce was doing price-to-price comparisons. Due to Department of Commerce’s rejection of Heveafil’s records in total, the government used adverse inferences in assigning Heveafil’s dumping margin. Heveafil challenged the government’s determination that Heveafil did not cooperate during the review, which is necessary to show, along with not submitting verified data, in order to use adverse inferences. However, the court sustained the government’s determination that Heveafil did not cooperate to the best of its abilities, due to the fact that Heveafil was given plenty of notice that the government required “source documents” for review and was aware of the process since Heaveafil had previously participated in reviews, yet deleted the relevant bills of material. The Department of Commerce defines “source documents” as documents that are maintained in the normal course or business, which the computer disk duplication of the bills of materials was not. The court went on to sustain all but one determination by the Department of Commerce despite Heveafil’s, and fellow plaintiff, Filati’s, challenges. The government chose to select the highest rate calculated in a prior administrative review in determining the dumping margin for each company. The government’s selection of the highest dumping margin chosen for plaintiffs was sustained due to the discretion given to Commerce after having shown that adverse inferences were appropriate.
This case involves a contractual dispute worth $41 million between Juster and North Hudson Sewerage Authority (NHSA). Juster issued a request for production of documents that included 49 requests for documents and a list of 67 proposed search terms. Some of these terms included words such as “fee,” “debt,” “tax,” and “SEC.” NHSA argues that the court should grant a protective order because it already produced 8,000 pages of documents and felt these search terms were too vague. Additionally, NHSA stated that if the court did not grant its protective order, the cost for producing these documents and running the searches should be shifted to Juster. The court did not agree with NHSA’s claims. Not only was there a lack of evidence that the data requested here was inaccessible, the court also applied the seven-factor test set forth in Zubulake v. UBS Warburg. This case has been adopted by the Third Circuit in cases that involve fee shifting. The Zubulake factors include: The extent to which the request is specifically tailored to discover relevant information; The availability of such information from other sources; The total cost of production, compared to the amount in controversy; The total cost of production; The relative ability of each party to control costs and its incentive to do so; The importance of the issues at stake in the litigation; and The relative benefits to the parties of obtaining the information In applying the Zubulake factors to this case, the court held that fee shifting is not warranted. The requests for electronically stored information (ESI) were tailored, as the searches were restricted to a specific time period (2011-2012). Second, it is unknown if this information is available from other sources. The third, fourth, and fifth factors are concerned with the costs associated with the request for ESI. Here, the court found that given the amount of damages at stake, NHSA’s ability to absorb the costs of the ESI requests, and the projected costs are not substantial enough to justify fee shifting. The fact that the litigation had $41 million at issue and the cost of running the keyword searches was approximately between $6,000 and $16,000, the court felt fee shifting would be inappropriate. The final factors are not relevant to this litigation as this is a private contractual dispute between two parties and no public policy is implicated. Overall, these factors weigh heavily in favor of Juster. As a result, this case illustrates that courts are reluctant to sway from the idea that it is the responding party that bears the costs in complying with discovery requests. Only when there is an undue burden on the responding party, or inaccessibility of information, will the court consider fee shifting. Yet, given today’s society, most information is accessible. Additionally, when both parties have comparable discovery requests and both agree to pay their own costs in producing discovery, fee shifting is even less likely to occur. Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. In May 2014, she received her J.D. from Seton Hall University School of Law.
The defendant in personal injury litigation commonly requests discovery concerning a plaintiff’s Facebook account. The reason such requests are made is that pictures on Facebook may reveal the “injured” plaintiff dancing on top of a bar table, skiing, traveling, etc. These damaging photos may prove that the plaintiff’s injury is not as severe as he or she claims and could result in dismissal of the case. Therefore, it is not uncommon for a plaintiff to delete his or her Facebook account in order to conceal any damaging pictures. The deletion of a Facebook account, however, may result in sanctions such as an adverse inference jury instruction. In Gato v. United Airlines, Inc., the plaintiff was injured while working for the defendant. During the litigation, the plaintiff permanently deleted his Facebook account. The defendant motioned for an adverse inference jury instruction claiming that the deletion of the Facebook account destroyed relevant evidence, thereby prejudicing the defendant. In granting the sanction, the district of New Jersey adopted a very low standard as to what a litigant must show in order to obtain an adverse inference jury instruction. The court held that “so long as evidence is relevant, the offending party’s culpability is largely irrelevant, as it cannot be denied that the opposing party has been prejudiced.” This seemingly simple sentence has enormous implications for litigants in the district of New Jersey for two reasons. First, it means that as long as the destroyed evidence was relevant, a litigant need not prove that the adversary intentionally (or even negligently) destroyed evidence. The lack of state of mind requirement eliminates what is often the most difficult element to prove when seeking spoliation sanctions. Without the need to prove a litigant’s culpability in destroying the evidence, the court seems to impose a form of strict liability upon the destroying party. The only requirement imposed by the court is that the party seeking sanctions prove that the destroyed evidence was relevant. This is a significant deviation from the traditional method employed by courts which requires proof that a party was at least negligent in destroying the evidence. Second, the court indicates that as long as the evidence is relevant, it will presume that the destruction of the evidence was prejudicial to the opposing party. This eliminates the need for the party seeking sanctions to prove that it was prejudiced by the missing evidence. Instead, the party only needs to prove that the evidence was relevant. Notably, the court explained that the defendants in Gato were “prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.” In other words, the defendant in Gato did not have to even prove that the destroyed evidence was undoubtedly relevant—the defendant only had to prove that the evidence was potentially relevant. In sum, the District of New Jersey imposed an adverse inference jury instruction simply because the destroyed evidence was potentially relevant to the litigation. The court did not require the defendant to show that it was prejudiced by the destruction, nor did the court require any showing as to the Plaintiff’s state of mind in destroying the evidence. Moving forward, litigants must be extra careful in their efforts to preserve evidence relevant to litigation. E-DiscoParty, a Seton Hall University School of Law graduate (Class of 2014), served on the executive board of the Seton Hall Law Review and is a member of the Interscholastic Moot Court Board. Currently, E-DiscoParty clerks for a Justice on the Supreme Court of New Jersey.  An adverse inference jury instruction is a powerful sanction where the court advises the jury to presume that any destroyed or missing evidence contained detrimental information about the party that destroyed or lost the evidence.
Background Omega Engineering Corporation, an international company based in New Jersey, was once the employer of Timothy Lloyd. To put Omega’s importance into perspective, the U.S. Navy and NASA were two of their clients for highly specialized and sophisticated industrial process measurement devices. According to testimony during the trial, Lloyd worked at Omega as its sole system administrator from 1985 through 1996. In 1995, Lloyd had undergone Novell network training and installed Novell software on Omega’s computer system. Additionally, Lloyd was the only person who maintained and had top-level access to the Omega network. Between 1994 and 1995, Lloyd became belligerent and increasingly truculent. Due to his poor interpersonal skills, he was demoted in May 1995 from manufacturing to support engineer. A woman who had once been Lloyd’s subordinate and had engaged in a romantic relationship with Lloyd, was the individual responsible for replacing Lloyd as manufacturing supervisor. In June 1996, Lloyd instituted a policy to “clean up” all of the individual computers in Omega’s manufacturing department. It was unclear as to why Lloyd was implementing company policies after his demotion. Nonetheless, the policy required employees to save their files to the company’s file server and prohibited them from making their own backups. Lloyd’s manager became suspicious of this policy and requested from Lloyd access to the file server. Lloyd never complied. By the end of June, upper management had enough of Lloyd’s behavior and terminated him in early July 1996. On July 31, Omega’s file server would not boot up. All of Omega’s manufacturing programs on the server, which contained instructions for operating the machines, were gone. Multiple computer experts were brought in to recover the files, but to no avail. The files had not only been deleted, but also had been “purged,” meaning that they were rendered unrecoverable. A leading expert on Novell networking testified at trial that this could only have been done intentionally and by someone with supervisory-level access. The government’s theory included that on July 30, anyone who would log on to the server at any time after that date would “detonate” a program installed by Lloyd that would destroy the information on the Omega file server. The government’s theory was bolstered by the fact that the Secret Service recovered missing Omega backup tapes that had been reformatted as well as a master hard drive from the file server. This had the same string of commands that had functioned as the time bomb program found on the Omega file server. The Decision Ultimately, Lloyd was found guilty of computer sabotage. The jury had deliberated for over twelve hours over the span of three days and had requested testimony in the jury room before they reached their verdict. However, three days after the verdict, one juror said that she had seen on the news, during the trial, about a computer virus called the Philippine “love bug” which allowed the perpetrator to cause great harm by flooding the victim computers and causing them to crash. Whether this affected her decision is unclear; however, the defendant claimed that his 6th Amendment rights had been violated. The district court agreed, granting a new trial. On review, the Court of Appeals reversed the district court’s holding. After a lengthy discussion, the court said that there were significant dissimilarities between the “love bug” and the “time bomb” and most jurors would not confuse the two. Therefore, the appellate court found, the defendant was not prejudiced. Lloyd’s managers should never have allowed a single employee hold as much power as they did. This case highlights the vulnerabilities the company subjects itself to if that is allowed to happen. For example, Omega lost over 1,200 programs and many current and potential clients as well. Akiva Shepard received his J.D. from Seton Hall University School of Law in 2014. Akiva has worked for a New York State Supreme Court Judge in Kings County, and for a NJ real estate firm.
Plaintiff Erick Zayas joined with the Equal Employment Opportunity Commission (EEOC) to sue Ventura Corp. for employment discrimination on the basis of sex in 2007. In essence, Zavas complained that Ventura’s long-standing tradition of hiring women for the position he applied to was discriminatory. Furthermore, Zavas alleged that Ventura destroyed relevant evidence. In its answer, Ventura stated that the fact that no men have filed applications or have not met the position requirements did not support the plaintiffs’ assertion of discrimination. However, during limited discovery a list revealed that qualified men did in fact apply and accounted for 34.5 percent of qualified applicants. The central issue involved application materials received by Ventura. These included materials submitted by e-mail and hard copy resumes. The court first notes that spoliation is “the failure to preserve evidence that is relevant to pending or potential litigation.” The duty to preserve relevant evidence arises once litigation is reasonably anticipated. The court noted that since Ventura was notified in 2007 that it was being charged with sexual discrimination, at that point Ventura should have reasonably anticipated litigation and was thus under the duty to preserve. Ventura attempted to make a statutory argument that resumes did not need to be preserved. The relevant statute, 29 CFR 1602.14 (see http://www.law.cornell.edu/cfr/text/29/1602.14), makes reference to “application forms” and “test papers.” Ventura argued that it required neither application forms nor test papers and that resumes were not mentioned. However, the court rejected this argument. The court noted that the statute also includes the language, “other records having to do with hiring.” The court ultimately held that resumes therefore clearly applied. Ventura’s Human Resource Analyst testified that certain documents were shredded or taken to a warehouse as a result of an office restructuring in 2009. Furthermore, the HR Analyst wasn’t able to find the said documents. The plaintiffs were therefore able to establish that Ventura either lost or destroyed the resumes between 2007 and 2010. Because Ventura was on notice since 2007, the disappearance of these documents constituted a violation of its duty to preserve relevant evidence. Soft copies of resumes delivered by e-mail were also lost in the same time period. In fact, th plaintiffs were able to produce a relevant e-mail to and from Ventura, while Ventura was not able to produce the very same e-mail. This e-mail alone and the fact that other relevant e-mails likely existed in the 2007-2010 period but were nowhere to be found, was sufficient to infer that Ventura likely destroyed them. The court held that sanctions were in order for Ventura’s violation of its duty to preserve. As a result of Ventura’s failure to preserve relevant evidence, the court imposed a “spoliation instruction” or adverse inference instruction. Such an instruction allows the trier of fact to infer that the content of the destroyed relevant evidence was damaging to Ventura’s case. Lesson learned? If you intentionally or unintentionally destroy relevant evidence while under a duty to preserve, an adverse inference instruction will likely bring swift defeat and sway the trier of fact against you. It’s best to preserve evidence and maintain your credibility with the court and trier of fact even with bad facts. Rocco Seminerio is a Seton Hall University School of Law graduate (Class of 2014). Mr. Seminerio focuses in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.
In Haskins v. First Am. Title Ins. Co., the court was asked whether a title insurance company (the "Insurer") is in "control" of documents that are in not in the Insurer's possession, but where the Insurer has the contractual right to direct those with possession to produce the documents. The district court found in the affirmative, demonstrating that in some circumstances, the more extensive one's contractual rights, the more extensive its obligations in discovery. The plaintiffs sought class certification, which defined the class as all New Jersey consumers who paid premiums in excess of regulated title insurance refinance rates during the class period. The plaintiffs alleged that the Insurer had overcharged for title insurance over a period of several years. During discovery, plaintiffs sought certain documents in the possession of certain independent title agents, who were not employees of the Insurer, but with whom the Insurer had a contractual relationship. The representative contracts made all documents "available for inspection and examination by [the Insurer] at any reasonable time." The court inquired as to whether such documents are in the "control" of the Insurer, because pursuant to Fed. R. Civ. P. 34(a), a party may request another party to produce documents within that party's "possession, custody, or control." Thus, if such documents were in the "control" of the Insurer, the plaintiffs could properly request that they be produced in discovery. The Insurer argued that it should not be required to produce documents in the physical possession of its agents because it does not possess or control the requested documents. However, the court did not struggle to conclude that the Insurer's agency contracts plainly indicate that it has control over and access to the documents. It drew this conclusion based on the premise that there is control if a party “has the legal right or ability to obtain the documents from another source upon demand.” Haskins demonstrates the potential for increased discovery obligations for those that have negotiated extensive rights in contract. That is, the greater rights in contract, the potential for broader obligations in discovery. While this factor may not drive the decision making for those negotiating contracts, contract parties should at least be aware of this consequence Adam L. Peterson 2014 graduate of Seton Hall University School of Law. While at Seton Hall, Adam was a member of the Seton Hall Law Review and prior to law school Adam was an Environmental Analyst with the New York State Department of Environmental Conservation.
Richard Fraser was an independent contractor working for Nationwide Mutual Insurance Company when he was fired in 1998. Although Fraser argued that he was fired for reporting illegal policies that Nationwide had implemented, Nationwide stated he was fired because he was disloyal to the company. Nationwide found that plaintiff had drafted (but not sent) two letters to two Nationwide competitors, Erie Insurance Company and Zurich American Insurance, expressing Contractors Association members' dissatisfaction with Nationwide and seeking to determine whether Erie and Zurich would be interested in acquiring the policyholders of the agents in the Contractors Association. After discovering the letters, Nationwide also searched its mail file server and found e-mails revealing company trade secrets. Fraser filed a wrongful termination suit against Nationwide, arguing that Nationwide’s accessing Fraser’s e-mail account without permission violated the Electronic Communication Privacy Act and a parallel Pennsylvania statute. The trial court granted Nationwide’s motion for summary judgment and Fraser appealed. The Third Circuit Court of Appeals affirmed the trial court’s ruling that Nationwide had access to the independent contractor’s emails. Nationwide was found to not have violated the ECPA because Nationwide had provided the independent contractor with the e-mail account, the e-mail was hosted on Nationwide’s servers, and the e-mails were acquired after transmission of the e-mails. Therefore, the court held that the e-mails were not intercepted by Nationwide. Title 1 of the ECPA prohibits the interception of e-mails, but Nationwide argued that since the e-mails were reviewed after the transmission of the e-mail, that no interception had occurred. The court agreed and found that for one to intercept e-mail, he must occur contemporaneously, at the time of the transmission. Therefore, as long as the seizure of e-mail occurs after the e-mail is transmitted, a company does not need permission to access the independent contractor’s e-mails. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions.
“Follow the document policy!” Those were the words repeated many a time by Arthur Anderson to Enron’s employees during the pending SEC investigation. Those simple words led to a jury’s finding Anderson guilty of witness tampering through the act of persuading his employees to destroy relevant documents. The jury found Anderson guilty of violating 18 U.S.C. §§ 1512(b)(2)(A) and (B), which makes it a crime to “knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person . . . with intent to . . . cause . . . ” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” The Fifth Circuit Court of Appeals upheld this decision. However, the Supreme Court reversed this decision determining that the jury instructions were improper. The Court focused on “what it means to ‘knowingly . . . corruptly persuad[e]’ another person ‘with intent to ... cause’ that person to ‘withhold’ documents from, or ‘alter’ documents for use in, an ‘official proceeding.’” The Court held that this language required a proof of consciousness of wrongdoing. The Court additionally found that the jury instructions provided by the district court did not adequately outline the requirement for the consciousness of wrongdoing. Besides not including the proper intent, the district court also misapplied the “corruptly” definition by leaving out the word “dishonestly” and inputting “impede” in place of “subvert or undermine.” “These changes were significant. No longer was any type of “dishonest[y]” necessary to a finding of guilt, and it was enough for petitioner to have simply “impede[d] the Government's fact-finding ability.” In addition, the Court noted that jury instructions did not require any finding of a nexus between the “‘persua[sion]’ to destroy documents and any particular proceeding.” Even though it is illegal to directly persuade someone to destroy documents in the face of a pending litigation, the Court wanted to emphasize that there is a requirement of knowledge about both a pending proceeding and the materiality of the documents to be found guilty of violating the witness tampering statute. Overall, because of the inaccurate jury instructions, the Court here reversed the decision so another jury could hear the evidence along with proper instructions in making their decision. Though this decision seems to make some room to get out of the witness tampering statute, it is always best to have a proper document retention policy and to not persuade any form of destruction.
In this case, Peerless Industries, Inc. sued defendants Crimson AV, LLC claiming patent infringement and design patent infringement arising out of defendant’s manufacture and sale of certain TV mounts. While not a defending party, Sycamore Manufacturing Co., Ltd. (“Sycamore”) is plaintiff's former supplier of these TV mounts and played a vital role in the alleged infringement. Sycamore is located in China, while Peerless and Crimson are both located in the United States. Plaintiffs filed two motions: (1) a motion to compel the deposition of the Sycamore’s president, Tony Jin, and (2) a renewed motion for sanctions, both of which were granted. It was also determined in a previous case that Jin exercised managerial control over both Sycamore and Crimson. Therefore, plaintiff satisfied that Mr. Jin is a managing agent of Crimson. The court stated, “Plaintiff must simply show ‘that there is at least a close question as to whether the witness is a managing agent.’ We already found this to be the case. Furthermore, Mr. Jin clearly satisfies the ‘paramount test,’ which is whether the individual identifies with the corporation's interests as opposed to an adversary's.” The court further ordered that without any showing of hardship, Jin’s deposition would have to take place in the United States and not in China. As for the plaintiff’s renewed motion for sanctions, this motion marked the third time the plaintiff filed a motion regarding the same set of documents. The plaintiff argued that at the deposition of Crimson’s managing director, “it became clear that defendant did not conduct a reasonable investigation regarding Sycamore’s document production or Sycamore’s document retention for purposes of this litigation.” The plaintiff then filed a renewed motion for sanctions. The defendant and Sycamore asserted that certain documents in Sycamore’s possession had been produced. The plaintiff noted, that defendants did not represent that all requested documents were produced or that they were searched for but no longer existed. The plaintiff argued that the defendant wanted to rely on the same declarations as opposed to issuing more specific responses. The court stated that since it had determined Jin was principal of both Crimson and Sycamore and that he exercised a considerable amount of control over both corporations, that he was able to obtain all relevant documents from Sycamore. However, the court found that defendant took a “back seat” approach and instead used a third-party vendor to collect the documents. Finding that neither Crimson nor Jin had apart in the process of obtaining the requested discovery, the court granted the plaintiff’s motion for sanctions. The court held that this “hands-off’ approach is insufficient. “Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process. Finally, the court held that defendants must show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located, they must specifically verify that it is they who cannot produce. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions. Currently, Salim is taking part in the Immigrants’ Rights/International Human Rights Clinic at Seton Hall Law.
This Article was originally published with Bloomberg Law Reports on November 9, 2011. The Internet has afforded anyone, anywhere, a wealth of information at one's fingertips. Within the current and everexpanding age of technology, Brazilian- and U.S.-based courts continue to draw legal boundaries within a seemingly boundless cyberspace. The boundlessness of the Internet, and its related technologies, transcends geographical limits and poses worldwide issues of regulation. One such technology, which has caught the attention of businesses and resulted in significant legal battles, is "scraping" - a computer software technique that extracts publicly available information from websites. While in and of itself, "scraping" may not be unlawful, courts in Brazil and the U.S. have begun to carve out permissible and impermissible uses of this technology. Brazilian Scraping Lawsuit A recent court opinion of first impression in Sao Paulo, Brazil, gives newfound meaning to ownership rights of information available on the Internet. The Brazilian court's opinion in Curriculum Tecnologia Ltda. v. Catho Online S/C Ltda., et al, examines claims of unfair competition and violation of copyright rules, as applicable to the Internet. The plaintiff, Curriculum Tecnologia Ltda. ("Curriculum"), and defendant, Catho Online S/C Ltda. ("Catho"), are employment recruitment companies, operating solely through the Internet. Thousands of individuals seeking employment use the services of these companies by posting their resumes on the respective websites. In turn, employers seeking to hire review thousands of potential candidates to fill their open positions. In fact, Curriculum is the largest employment website in Brazil, providing a meeting place for over 6 million registered applicants and 100 thousand user companies. These services allow for a faster and easier connection to the open job market. In February 2002, developers at Curriculum noticed an unusual increase in activity on their company's website. While, generally, Curriculum's customers search approximately 500 resumes per day on its website, developers became suspicious when one particular user registered over 63,000 searches in one day. Upon further investigation, Curriculum technicians blocked the particular account and tracked its origin back to a computer at Catho, the defendant competitor. As a result of its investigation and findings, Curriculum filed suit against Catho alleging various business-related claims. As the lawsuit proceeded in the normal course, fact gathering efforts revealed flagrant and deceptive practices by Catho to illegally, in violation of Brazilian law, acquire information from Curriculum's website. In short, Catho developed a program that enabled it to copy ell mass Curriculum's website information database through which it could access resumes from Curriculum's website. Once Catho gained access to the resume information, it used it for its own commercial purposes. The purpose behind Catho's efforts was to increase its own potential employee base in order to offer a wider range to online employment recruiters. Catho acquired hundreds of thousands of resumes from its competitors through the use of these and related methods. Indeed, Curriculum was not the only competitor to bring suit against Catho for these practices, as several other victims of this Internet hacking scheme brought separate actions against Catho. To appreciate the breach of security and the value of the acquired information, one must understand the function of the employment recruitment market in Brazil within which these parties operate. Both parties operate primarily as online employment search engines. Individuals who seek employment and employers who seek skilled individuals, use the services of these recruitment companies by paying fees which permit the posting of resumes and job advertisements, allowing for searches of both to be performed. These web-based services offer various levels of fee-based access to these postings and search capabilities, which in turn generate revenue for these companies. Curriculum's website provides its users with instructions and several menus that allow them to browse its webpage efficiently and effectively. Curriculum does not provide every user with access to its resume bank. Instead, the website uses filters that permit only certain clientele with particular fee-based account settings to access this information. Catho used hacking programs to breach these security devices, allowing unauthorized access to resumes on Curriculum's website, spurring the lawsuit. Specifically, the programs developed by Catho allowed it to take advantage of security flaws in Curriculum's website, and gain access to the entire proprietary database - thereby transferring tens of thousands of resumes in a single clandestine night of debauchery. After plaintiff filed suit, the parties set forth arguments before the Brazilian court in support of their respective positions. Curriculum argued it had a property ownership interest in the data, and therefore Catho engaged in unfair competition and unauthorized copying of Curriculum's information. Catho argued that the information was public, access to the website was open and unrestricted, and therefore the information was not afforded legal protection. In sustaining a lower court's previous finding of damages.judge Luiz Mario Galbetti of 33 Civil Court of Sao Paulo found that Catho engaged in unfair competition by breaching Curriculum's internal computer systems and illegally acquiring thousands of resumes posted therein. The court held that the transmission and expansion of Catho's own database through this illegal acquisition served to increase its market visibility with direct effects on the profits obtained by Catho. Relying on notions of unfair enrichment, abuse of rights, and unpredictability, the court awarded damages in the amount of R$21,828,250.00 (in Brazilian Real). In calculating damages, the court considered the amount charged by Catho per month for posting a resume on its website, R$50.00, multiplied by the 436,595 resumes it illegally acquired. With interest and additional penalties this R$21,828,250.00 resulted in an award of R$63 million in damages, or approximately $42 Million USD. U.S. Scraping Lawsuits Similarly, U.S.-based courts have addressed the legal boundaries of extracting information from public websites. In EF Cultural Travel v. Zefer Corp., 318 F.3d 58 (1st Cir.2003), the U.S. Court of Appeals for the First Circuit issued a preliminary injunction pursuant to the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 1030, to prohibit the use of a “scraper” software program that defendants used to collect pricing information from the plaintiff/competitor’s website. Zefer Corp. (“Zefer”) sought review of the injunction, implemented in a prior hearing with co-defendant Explorica, Inc. (“Explorica”). See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001). EF and Explorica are competitors in the student travel business, operating websites that permit their respective visitors to explore various vacation packages. To gain a competitive edge, Explorica hired Zefer to build a program that would allow Explorica to “scrape” the prices from EF’s website and download them into an Excel spreadsheet. After accessing EF’s vacation package pricing, Explorica tailored its own costs, purposefully undercutting EF on an average of 5%. EF stumbled upon the “scraping” scheme as a result of discovery in an unrelated, state court lawsuit involving Explorica. As a result, EF filed suit in federal court, seeking an injunction on the grounds that the “scraping” violated both federal copyright laws and various provisions of the CFAA. The underlying issue in the case was whether the use of the scraper program exceeded “authorized access,” in violation of federal law. The relevant CFAA provision examined by the court provides: Whoever. . . knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such useisnotmorethan$5,000inany1-yearperiod. . .shall be punished as provided in subsection (c) of this section. While the CFAA defines “exceeds authorized access” as “to access a computer without authorization and to use such access to obtain or alter information in the computer that the accesseer is not entitled so to obtain or alter,” the court in EF Cultural Travel provided analysis of the term “authorization.” The trial court held that authorization could be determined both explicitly, for example through a direct statement restricting access, or implicitly. In defining the implicit prong, the trial court relied upon a “reasonable expectations” test. Even though the appeals court agreed that authorization can be both explicit and implicit, it rejected application of the reasonable expectations test used by the trial court. Instead, the appeals court determined that “public website provider[s] can easily spell out explicitly what is forbidden and consonantly, that nothing justifies putting users at the mercy of a highly imprecise, litigation-spawning standard like ‘reasonable expectations.’” As a result, the appeals court determined that a clear manifestation of the company’s intent that no information be collected from its website was necessary in order to show “lack of authorization,” such as an explicit statement on the webpage restricting access. Or, to put it more bluntly, “[i]f EF wants to ban scrapers, let it say so on the webpage or a link clearly marked as containing restrictions.” Nonetheless, this federal appeals court decision did not eliminate the concept of implicit authorization, as it may suffice in other circumstances. However, the decision highlighted that a plaintiff must demonstrate unambiguously that authorization was prohibited. The EF Cultural Travel decision promulgates the theory that the right to control access implicates a right to prevent or obtain legal remedies for any unauthorized access. As demonstrated in EF Cultural Travel, authorization may be established both implicitly and explicitly. Another method of disclosing a lack of authorization may be through the creation of technological barriers, such as encryption of particular information. Under this regime, after the initial encounter, a third party must either obtain permission or take unusual steps to circumvent the technological barrier. Lastly, database owners may also establish use authorization conditions through contractual terms. Whatever the means of establishing authorization, or the lack thereof, it is apparent that a reasonable effort to protect is a precondition to maintaining this legal right. It is recognized, however, that the mere posting of information on a public domain, such as the Internet, does not in and of itself extinguish a protectable right to that information. This presumption is also echoed in case law analyzing the misappropriation of trade secrets. For example, in Barnett, Inc. v. Shidler, 338 F.3d 1125 (10th Cir. 2003), the court examined whether former employees misappropriated a trade secret by implementing the Infant Swimming Research program (“ISR”), which was designed by plaintiff as a scientific, behavioral approach to pediatric drowning prevention. In finding the ISR program was not a trade secret, the trial court noted “[plaintiff ] allowed its program to become part of the public domain before seeking protection...,” referring to various published books explaining the ISR method. In reversing this finding, the appeals court highlighted the decision in Rivendell Forest Prods., Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1045 (10th Cir.1994) in which the court found that “a trade secret can exist in combination of characteristics, each of which, considered separately, is in the public domain, but, taken together, may yield a competitive advantage that results in a protectable trade secret,” solidifying the argument that information may be a trade secret notwithstanding the fact that some of its components are well known. See also Syncsort v. Innovative Routines, No. 04-CV-03623, 2011 BL 213594 (D.N.J. Aug. 18, 2011) (federal district court of New Jersey examining the existence of a trade secret in light of its brief publishing on the internet). While case law involving scraping requires some form of notification as to non-authorization, this line of reasoning quashes any argument that information posted on the Internet should not enjoy legal protection simply because of its public nature. A court must determine the underlying intent of the scraper because the legality of extracting data from a website often centers on the underlying intent in copying. The copying of information for any purpose deemed a “fair use” may therefore not be actionable. As evidenced by both EF Cultural Travel and Curriculum, this key element is what often implicates legal remedies. Lessons Learned Easy access to information afforded by the Internet has created a global culture that often accepts the free use (and abuse) of information. This often results in blurred lines between public and private property, especially for those who conduct business through the Internet. Therefore, unless a database is composed of content independently entitled to protection, for example through copyright or trade secret law, database owners must rely upon a patchwork of available legal remedies. Database owners may seek protection under unfair trade statutes or under common law theories such as misappropriation. Contractual restrictions also offer protection, but such a remedy requires privity of contract. Moreover, while a claim for trespass may also be a feasible option, most courts require a showing of actual injury. Lastly, and certainly not exclusively, protection under the CFAA may be warranted. While each option has its own nuances, courts are setting down the foundation of protection in response to the legalities of the Internet age. Therefore, while the potential remedies available to database owners under U.S. law tend to be narrow, it is no doubt only the beginning. Regardless of the underlying legal principal asserted against an illegal scraper, liability attaches on a case by case basis depending upon the type of access obtained by the scraper, the amount of information accessed and copied, the degree to which the access adversely affects the Web site owner’s system and the types and manner of prohibitions on such conduct. The significant monetary award issued by the São Paulo court underscores the value that information has to a company and its survival. The decision also serves as a warning to billions of Internet users globally, as the calculation of damages serves not only to punish the wrongdoer but also to deter the illegal activity in and of itself. These decisions evidence a fairly new attempt by courts to address the legal issues posed by the Internet. While the approach is not yet uniform, there are obvious efforts by courts to protect proprietary information on the Internet from uses that are detrimental to the owners of such sites. Fernando M. Pinguelo, a Partner at Norris, McLaughlin & Marcus, P.A. and co-Chair of the Response to Electronic Discovery & Information Group at the firm, is a U.S.-based trial lawyer who devotes his practice to complex business lawsuits with an emphasis on how technology impacts lawsuits. Mr. Pinguelo founded and contributes to the ABA Journal award-winning blog, eLessons Learned – Where Law, Technology, & Human Error Collide (www. eLLblog.com). To learn more about Mr. Pinguelo, visit www. NYLocalLaw.com or email him at info@NYLocalLaw.com. Renato Opice Blum, CEO of Opice Blum Advogados Associados in São Paulo, Brazil, is a Brazil-based attorney and economist, who established one of the first leading technology-based law firms. Mr. Blum is the Coordinator of the MBA course in Information Technology Law at São Paulo State Law School and a distinguished professor at Fundação Getúlio Vargas, among other universities. Mr. Blum is co-author of the book, Internet and Electronic Law. To learn more about Mr. Blum, visit http://www.opiceblum.com.br/ lang-en/01_profissionais_dadosRes.php?ID_CUREQUIPE=138578 or email him at email@example.com. Kristen M. Welsh is a U.S.-based litigation Associate at Schiffman, Abraham, Kaufman & Ritter, P.C. and focuses her practice on business and employment law matters. Ms. Welsh may be reached at KWelsh@sakr-law.com. . This rule of thumb is also applied in cases analyzing the misappropriation of trade secrets. See Barnett, Inc. v. Shidler, 338 F.3d 1125 (10th Cir. 2003). . Various fair uses have been identified by the court. See Nautical Solutions Mktg., Inc. v. Boats.com, Copy. L. Rep. (CCH) ¶28, 815 (M.D. Fla. 2004) (holding that “momentary copying of open . . . public Web pages in order to extract yacht listings facts unprotected by copyright law constitutes a fair use.”); Ticketmaster Corp. v. Tickets.com, Inc., No. 09-CV-07654 (C.D. Cal. Mar. 7, 2003) (“Taking the temporary copy of the electronic information [from the Ticketmaster.com website database] for the limited purpose of extracting unprotected public facts leads to the conclusion that the temporary use of the electronic signals was ‘fair use’ and not actionable.”); see also Assessment Technologies, LLC v. WIREdata, Inc., 350 F.3d 640 (7th Cir. 2003).