Chain of Custody

Time to Get Physical (Hard Drives)

On May 4, 2010, ANZ Advanced Technologies (plaintiff) was ordered to produce all hard drives and storage devices used by two of the company’s officers (Irfan Sheriff and Rakesh Vashee) for forensic analysis and ESI production.  ANZ moved to modify the order seeking to substitute forensic images of the devices for the devices themselves.  The court refused to allow the use of forensic images and mandated that ANZ turn over the physical storage devices   ANZ was forced to submit its devices for forensic analysis because of misrepresentations made about creation dates of various documents.  The court found that ANZ’s conduct cast serious doubt on the authenticity of any document it produced from the hard drives of any computers or other storage devices in the possession of Mr. Sheriff or Mr. Vashee.

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Electronic Shenanigans… Busted!

Not only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data.  It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services.  The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.

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A Bargain for Privacy

When confidential business information comes into play, it is imperative that parties diligently bargain to protect their interests. Once an agreement is reached the parties will be expected to uphold their side of the bargain based on the other side’s reliance.

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Careless Preservers Breathe Huge Sigh of Relief when Court Finds no Relevant Information Destroyed

In 2006, Numerex, a satellite communications company, began attempts to acquire Orbit One, which was owned by David Rosen, Scott Rosenzweig and Gary Naden.  These negotiations resulted in an asset purchase agreement signed in July 2007, under whose terms Rosen, Rosenzweig, and Naden would continue on with Numerex, with Rosen becoming president of the new division. Around the same time Naden’s former company, Axxon initiated suit against Orbit One and Orbit’s attorneys ordered a litigation hold to ensure preservation of information relating to that controversy.

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I Deleted Your Damning Evidence and There’s Nothing You Can Do About It

Again with the scandalous sex tapes?  Seriously?  With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret.  You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution.   Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

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Digital Life After Death

Some people think that when you delete a file off of a computer it is gone forever.  The truth is that it still exists on your computer, and deleting a file is more akin to removing a note card from a card catalog at the library.  The book still exists, it is just much more difficult to find.  The same is true of files, and one court has found that even deleted files are subject to discovery orders and sanctions can be issued for destroying them. In TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009), plaintiffs, TR Investors, LLC (“TRI”), sought sanctions against defendant, Arie Genger, for using software that deleted files in violation of an existing discovery order.

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Members of the ABA International Law Section Gather in Paris for Annual Meeting and Learn About Cloud Computing

Members of the American Bar Association – International Law Section gathered on November 5, 2010 at The Westin Paris in Paris, France to actively participate in a panel discussion titled “Ephemeral Boundaries: Cross-Border Implications of Cloud Computing” sponsored by the International Litigation Committee. Cloud computing, in which electronic information is processed and stored over the Internet, poses fundamental challenges to the most revered concepts of the rule of law: Geographic basis for statutes and regulations, jurisdiction based upon physical presence, and data protection, security, and privacy laws based upon the location of tangible assets such as hardware and people. Privacy and data protection laws requiring standards of protection for transfer to certain jurisdictions may pose challenges to cloud arrangements. Re-evaluation of traditional notions of disclosure and discovery of information in the cloud may also be in the offing as the cloud alters these paradigms.

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The Wide World of E-Discovery

E-discovery is a constantly developing topic in the legal world, and the word, “world,” should be taken literally.  Across the globe, different nations and their legal system are formulating new rules to tackle new discovery issues that can arise almost as quickly as new technology and means of communication can develop.  The only problem with this, however, is that different nations are addressing their e-discovery issues with different solutions.  This problem usually rears its ugly head when one of the parties in a lawsuit is a multinational company.  What is a British company supposed to do when it’s sued in an American because of a foul-up by its French Subsidiary?  Do they supply all of the e-discovery materials required by American courts?  What if e-discovery that the American court requires no longer exists because it never needed to be stored in the first place by   French or British?

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Dead Men Tell No Tales, But Deleted Evidence Does

Dead men tell no tales, but their bodies provide enough evidence to paint a graphic picture.  The same is true of deleted files on a computer.  Missing files can carry the inference that the evidence was only destroyed because it would have been damaging to the party responsible. In Paris Business Products, Inc. v. Genisis Technologies, LLC (“Paris”), Genisis Technologies, LLC, (“Genisis”) was subject to a discovery order requiring it to preserve all relevant data on company-owned computer hard drives.  Despite this order, Genisis’ executive officers allegedly were responsible for: (1) deleting the company hard drives by reformatting them; and (2) physically removing and destroying some hard drives.

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Self-Preservation v. Production

Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins?  Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident. In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers.  After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault.  Defendants never provided the prisoner with the copy.  

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