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: Catherine Kiernan

Citation: Goldmark v. Mellina and Brach Eichler LLC, 2012 WL 2200921 (Sup. Ct. N.J. App. Div. 2012)

Employee/Employer Implicated: In house and outside counsel, employees, upper level management

e-Lesson Learned: Costly sanctions and fines can be imposed for forensic discovery of pertinent documents when they are deleted and fail to be preserved by new counsel.

Tweet This: Sticking your head in the sand about deleted pertinent e-mails can lead to costly sanctions.

It is not uncommon for people to either accidentally or purposely delete e-mails, thinking that they are gone forever.  However, having an e-mail vital to a judge’s ruling in a lawsuit go missing can lead to costly and time consuming procedures needed to retrieve it.  In the case of Goldmark v. Mellina & Eichler, LLC,  the appellate division confirmed the ruling of the trial court in finding that sanctions were appropriately imposed on the defendant’s law firm for failing to take “adequate precautions to prevent the temporary disappearance of two critical e-mails.”  Sanctions in the amount of $5,502.50 were properly assessed against the firm when the trial court made Mr. Eichler’s firm (defendants' attorney) and Ms. Mellina (defendant) split the cost of $10,075 in attorneys fees, $30 in costs, and $900 for the forensic specialist.  Only the defendants' attorney appealed his portion of the sanction.

Authored By: eDiscoverista

Citation: Moore v. Publicis, 11 Civ. 1279, 2012

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: Magistrates have broad discretion in resolving non-dispositive disputes, like discovery motions, and a ruling will survive if it's well reasoned. Accordingly, your judge must consider the circumstances surrounding use of computer-assisted document review, carefully craft a protocol that contains standards for measuring reliability in terms of process and method, and build in levels of participation and quality assurance for both sides.

Tweet This: Peck's Feb 8 disc. rulings survive review; parties (read: Plaintiffs) schooled on highly deferential std. of rev.

Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis!  As eDiscoverista predicted (don't look so surprised), plaintiffs filed a formal motion for review of Judge Peck's approval of predictive-coding protocol.  Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck's ruling as it was "well reasoned" and not erroneous or contrary to law, in accordance with Rule 72(a).  Peck's ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides. Last Month on Moore v. Publicis… If you've just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs' allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. 

Authored By: eDiscoverista

Citation: Moore v. Publicis, 11 Civ. 1279, 2012

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: Federal court approval of predictive coding protocol for computer-assisted review is under review, so don't dump your paper files and document review teams just yet.

Tweet This: Fed ct approval of predictive coding protocol for pc-assisted review under review, doc rev teams safe for now

It seems like just days ago I was celebrating Judge Peck's approval of computer-assisted review of documents to identify those responsive to discovery requests.  You too?  Well, take off your party hat -- Computer-assisted review, specifically Judge Peck's endorsement of a predictive coding protocol, is under review. **BREAKING NEWS!** Get the latest at the end of this article.** In my last post, I explained that Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, opined with regard to a discovery dispute in connection with Moore v. Publicis.  Therein, plaintiffs allege that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions.  Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.

Authored By: eDiscoverista

Citation: Moore v. Publicis, 11 Civ. 1279, 2012

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: You are now authorized to utilize computer-assisted review. But don’t forget to design an appropriate process (which always includes quality control testing), based on a full consideration of the technology available.

Tweet This: Federal court gives computer-assisted review a thumbs-up; counsel gets a well-reasoned how-to.

Last week brought good news for young associates, weary of large-scale document review assignments, and partners too scared to utilize computer-assisted review instead of their overworked underlings: the Southern District of New York approved the use of computer-assisted review to identify documents relevant to discovery requests.  Counsel no longer have to worry about being guinea pigs for judicial acceptance of computer-assisted review. Although attorneys have been using computer-assisted review for some time, we have been waiting for a judicial decision approving the technology – and hopefully setting forth some guidelines.  Moore v. Publicis gave Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, an opportunity to heed the call. 

Authored By: Michael Tucker Jr.

Citation: ANZ Advanced Technologies, LLC v. Bush Hog, LLC, 2010 WL 3699917 (S.D. Ala. 2010)

Employee/Employer Implicated: Owner/Executive; Employee

e-Lesson Learned: It is important not to misrepresent the dates that documents were actually created because retyped “copies” are not actually copies. Once you go down this path, all your hard drives and storage devices can be physically analyzed and forensic images are just not good enough.

Tweet This: Forensic img of storage device insufficient when what you previously produced was a lie. 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.

Authored By: M.J.R.

Citation: Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc., 2010 WL 4789275 (N.D. Ind., Nov. 17, 2010)

Employee/Employer Implicated: Outside Counsel, In-house Counsel, Senior Management, information technology manager

e-Lesson Learned: Discoverable data must be produced in a reasonably usable form in which it is ordinarily maintained and not in a format more difficult for the requesting party to use in litigation.

Tweet This: Indiana Court hands down a harsh punishment for shady electronic discovery practices!

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.

Authored By: Gina Barbieri

Citation: Oxxford Information Technology, Ltd. v. Novantas LLC, 2010 N.Y. App. Div. LEXIS 8496 (N.Y. App. Div. 1st Dep't Nov. 16, 2010).

Employee/Employer Implicated: Owner/Executive, information technology manager, C-level executive, owner, counsel (in-house & outside counsel)

e-Lesson Learned: The best way to protect trade secrets and other discoverable information is through a bargained for confidentiality agreement, which will likely be upheld in its original form

Tweet This: “If you bargain in favor of your privacy, you won’t fall victim to a bait-and-switch”

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.

Authored By: S.S.K.

Citation: Estate of Davis v. Spriggs, 2010 WL 4817348 (Delaware County Nov. 19, 2010)

Employee/Employer Implicated: Miscellaneous employees

e-Lesson Learned: Having an “Evidence Eliminator” program which destroys electronic data on a computer upon start-up can justify incidental deletion of evidence when your job involves sensitive information.

Tweet This: OH AppCt: It’s legal to destroy incriminating evidence on your computer! (Sometimes.)

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.

Authored By: Phil G. Ryan

Citation: Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. Ct. App. Jan. 13, 2011)

Employee/Employer Implicated: Employees

e-Lesson Learned: Communications between an employee and her attorney on a company’s computer, in violation of the company’s computer policy, are discoverable by the employee’s employer because those communications are not communicated in confidence and, are therefore, not privileged.

Tweet This: Inside-Voices Only! If you’re going to talk poorly about your boss do not use the company computer!

They are always watching! Whether you’re emailing your kids, encouraging them to do their homework and chores before watching television, sending a message to this week’s fantasy football rival, rejecting his offer to trade his kicker for your star running back, or reaching out to your college roommates, seeking advice on how to pick up the girl at the local coffee shop, make no mistake, they are watching!  When you agree to your company’s computer policy, the one that says you’ll use the employer issued device for work purposes only, you do more than just promise you will spend your time focused on your job.  You give up your privacy. Those emails to your kid, the message in your fantasy league, and the note to your friends, are all fair game for your boss to read.