Citation: United States v. Quinn, 18 F.3d 1461 (9th Cir. 1994)

Employee/Employer Implicated: FBI Agent

e-Lesson Learned: If during the discovery process, you don’t understand how an electronic device yielded a result, call your OWN expert witness to rebut the scientific process.

Tweet This: Photogrammetry Convicts Robber!

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.

Authored By: Courtney L. Shanney

Citation: Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012).

Employee/Employer Implicated: Users of social media

e-Lesson Learned: Discovery requests for one’s entire personal Facebook account is overly broad, as much of what is posted is irrelevant to lawsuits; therefore, portions of an individual’s Facebook account that are not viewable by the general public are protected from discovery. But anything on Facebook that is viewable by the public is discoverable and if that material is relevant to the lawsuit, the rest of the Facebook page may not be protected.

Tweet This: Private personal social media accounts may not be entirely discoverable because they are overbroad.

We often hear that we should be careful about what we post on the internet.  But no matter how many times we hear this good advice, it seems like we have all posted something on the internet that we later regret.  Unfortunately, the internet is not a forgiving place.  And these unwanted internet posts can haunt an individual and result in serious consequences.

Authored By: Thomas Moran

Citation: Barr Laboratories, Inc. v. Kos Pharmaceuticals, Inc., 362 F.Supp.2d 421 (S.D.N.Y. 2005).

Employee/Employer Implicated: Senior Management, Outside Counsel

e-Lesson Learned: A company may not be able to protect all trade secrets in a courtroom, at least in terms of a company seeking an injunction and temporary restraining order.

Tweet This: When are Trade Secrets not Trade Secrets? When you try to obtain an injunction and temporary restraining order.

When are trade secrets no longer allowed to be kept secret?  According to the Southern District of New York, when you try to obtain a preliminary injunction and temporary restraining order in federal court you also appear to waive your right to trade secrets.

Authored By: Stephen Bauer

Citation: Mackelprang v. Fid. Nat'l Title Agency of Nev., Inc., U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007)

Employee/Employer Implicated: Mid-Level Employee, CEO, In-House Counsel

e-Lesson Learned: Technology may be paperless, but it always leaves a paper trail. Use records to help yourself and act knowing that records are being saved against you.

Tweet This: Allow technology to take the “he said, she said” out of sexual harassment. Don’t think your personal settings are impenetrable.

A higher-up sexually harasses a mid-level employee. This sounds like every company’s bi-annual Human Resources lecture, but I’ll spare the burnt coffee and “trust falls” because the details in this account provides a lesson for both employees and their employers, preventing a disastrous situation.

Authored By: Jennifer A. Connelly

Citation: Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011)

Employee/Employer Implicated: Parties to suits that use social media sites

e-Lesson Learned: Materials posted to social media sites, such as facebook or myspace, are discoverable to the extent that they are relevant to the claim(s) presented. Plaintiffs should be able to determine what materials posted to social media sites are relevant to the Defendant’s discovery requests and produce accordingly.

Tweet This: Social media is discoverable, but Plaintiffs will get to produce it

Defendants in an automobile accident case sought discovery of Plaintiff’s facebook and myspace (i.e., social media) account information. Plaintiff was seeking damages based upon the physical limitations caused by the injuries sustained in the accident and for psychological damages caused by his newfound anxiety to travel and traffic as well as depression. Plaintiff conceded that the “public information,” or information available to all users/nonusers or friends/nonfriends should be discoverable pursuant to Federal Rule of Civil Procedure Rule 26 provided it was relevant. The Offenback Court conducted an in camera review of Plaintiff’s facebook page to determine the relevancy and discoverability of the material.[1]

Authored By: Michael Chew

Employee/Employer Implicated: Counsel for Megaupload

e-Lesson Learned: This case poses a novel legal issue resulting from a conflict in DMCA provisions and Megaupload’s litigation hold obligation.

Tweet This: Megaupload’s Legal Quandary

Almost a year after prolific founder of Megaupload, Kim Dotcom, was arrested and the site’s domain seized, recently disclosed court documents have illuminated the underlying legal complexity of the copyright infringement case.

Authored By: Jennifer A. Connelly

Citation: Joseph Oats Holdings, Inc. v. RCM Digesters, Inc., 409 Fed. Appx. 498 (3d Cir. 2010)

Employee/Employer Implicated: Owner/Executive, Information Technology Manager, Misc. Employee.

e-Lesson Learned: After litigation was initiated, plaintiff, a joint venture company, downloaded and copied files from a VPN with defendant pursuant to a litigation hold initiated by co-plaintiffs. The Third Circuit held that this behavior is not a clear-cut case of violations of the anti-hacking statutes.

Tweet This: Parties to a Joint Venture May be Able to Copy Files After Dissolution

In Joseph Oats Holdings, Inc. v. RCM Digesters, Inc., the United States Court of Appeals for the Third Circuit vacated a District Court decision which held that plaintiffs had wrongfully copied defendants electronic information in violation of the California Unfair Competition Law. The dispute stemmed from a joint venture agreement between the parties which was repudiated by defendants shortly after its inception. In September 2006, the plaintiffs commenced an action alleging trademark infringement, unfair competition, breach of contract, etc. In October 2006, plaintiffs attorney sent a litigation hold letter to defendants, demanding the preservation of (among others) electronic documents related to the litigation.

Authored By: Lauren Winchester

Citation: Shah v. Karnik, 2009 N.J. Super. Unpub. LEXIS 1052 (N.J. Super. Ct. App. Div. 2009)

Employee/Employer Implicated: Defense Counsel

e-Lesson Learned: A challenge to the admissibility of documents on the grounds that they were not properly authenticated can and will be waived if counsel fails to raise the issue before the court.

Tweet This: When it comes to authentication challenges, raise it or waive it!

The New Jersey Superior Court Appellate Division affirmed a final restraining order (FRO) under the Prevention of Domestic Violence Act despite claims by the defendant that key documents submitted by the plaintiff were not properly authenticated and admitted into evidence.  In late 2007, plaintiff, Krinal Shah, filed for a temporary restraining order (TRO) against her husband, Mayur Karnik, alleging he threatened via email to strangle and throw her in a river.  She further alleged that three days later defendant emailed and threatened to kill them both if she filed for divorce.  Finally, plaintiff alleged defendant burned her arm the previous summer.  In response to these allegations, the court issued a TRO and scheduled a hearing for an FRO.

Authored By: A.L.

Citation: White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001)

Employee/Employer Implicated: Husband and wife in custody matter

e-Lesson Learned: A wife’s hiring of a private investigator to search her husband’s stored e-mails on the family computer’s hard drive, without a password, does not violate the New Jersey Wiretap Act because her access was not unauthorized, and the messages were in post-transmission storage and thus could not be intercepted as a matter of law. Also, the husband had no reasonable expectation of privacy where the entire family had access to and frequently used the computer and the room where it was located.

Tweet This: The Do’s and Dont’s of “Spying” On Your Spouse During A Divorce Proceeding

Divorce can be a stressful ordeal for many couples.  It can be even more stressful when the parties continue to live in the same household during their divorce proceedings.  In White v. White, while the couple’s divorce was pending, the husband continued to live in the sunroom of the marital home.  All family members had access to this room as it was where the family computer and home entertainment center was located.  After discovering evidence of her husband’s infidelity, the wife hired a private investigator to retrieve her husband’s stored e-mails to his girlfriend from the family computer hard drive.  The court ruled that this access was not unauthorized and held that the e-mails could be introduced into evidence if relevant to the custody matter.  

Authored By: Mark Keddis

Citation: United States v. Sensient Colors, Inc., 80 Fed. R. Evid. Serv. (Callaghan) 887 (D.N.J. 2009).

Employee/Employer Implicated: Attorneys and Paralegals from the United States Department of Justice and the Environmental Protection Agency

e-Lesson Learned: Once a party is made aware of and confirms clear inadvertent production of certain documents, waiver of privilege for other documents subsequently determined to be inadvertent can only be avoided through prompt reassessment of the procedures used and re-examination of all production. This is true even when a sophisticated computer program was used to conduct the privilege review.

Tweet This: When a Clear Mistake Has Been Made, Always Promptly Double-Check the Entirety of Your Work or the Federal Rules of Evidence Will Get You

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.