Copying Documents = Conversion?

Prior to this case, Quintero Community Association (hereinafter “QCA”) sued Hillcrest Bank (hereinafter “HB”) under a variety of legal theories after plaintiffs sustained a loss in their investment. This is the only claim that remains. It is a claim of conversion, meaning that QCA is alleging that HB improperly took control of QCA’s property. The issue is that during an investigation into HB’s lending practices by the FDIC, an HB employee made a copy of all HB’s loan records on a portable harddrive. This employee also made a portable harddrive copy for HB’s own records. Later, the president of HB instructed the same employee to make yet another copy for HB’s attorney. QCA claims that HB violated its rights by making copies of its loan records. HB moved for summary judgment, claiming that QCA has no property interest in its records and that even if it did; HB’s copying of the records did not deny QCA its right of possession. In order to prevail on a conversion claim, plaintiff must prove that, “(1) it possesses a right in the goods or personal chattels; and (2) that the defendants exercised control over the goods or chattel to the exclusion of the plaintiff's right.” The court held that QCA does not have a property interest in HB’s records. The court reasoned that with intangible records, the plaintiff must have a present property interest in them, but here QCA merely has a right to privacy and no present property interest.  The court further ruled that HB never exercised exclusive possession over the bank records. Thus, even if QCA held a property interest in the records, HB’s actions do not constitute conversion because HB’s actions never interfered with QCA’s alleged rights to the documents. HB never asserted control over the documents in a way that excluded QCA from accessing them. QCA also argued that it is entitled to an adverse inference based on defendant’s alleged spoliation and in the alternative that it should be granted leave to amend its complaint to include a spoliation claim. The basis for the adverse inference claim is that HB allegedly encrypted the portable hard drives with the loan information in order to prevent QCA from accessing them. “[A] presumption of spoliation only arises when there is evidence of “intentional destruction indicating a desire to suppress the truth.” The court found that QCA did not meet its burden in demonstrating intentional destruction. Further, the court denied plaintiff’s request for leave to amend because it was not filed until two months after discovery closed, it would require further discovery and fees to be incurred by defendant, and the amendment would be futile.

Fishin’ on Facebook: The Discoverability of Private Facebook Information

There is no question we live in a world consumed by social media where “Tweeting,” “Instagramming,” and “Facebooking” are commonplace. More specifically, people feel compelled to share intimate details, photographs and video of their lives with their “friends” on social media sites, such as Facebook. In the world of litigation, the question becomes “how should courts treat Facebook accounts for the purpose of discovery”?

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Guinea Pigs Finally Liberated by Peck: Computer-Assisted Review Gets Thumbs-Up and 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. 

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You’re Gonna Have to Do Your Own Work

Just because e-discovery is involved does not mean we can disregard the rules applied to traditional discovery. While we must adapt the way we approach discovery because of advancing technology and the decline of the paper-based world, we must not forget that the spirit behind the rules of discovery apply to all discovery, including e-discovery. In High Voltage, the plaintiff filed a motion to compel the defendant to Christmas the one hair Jimmy what is the generic for carvedilol beetlike - acne wonderfully trying went is the exactly is scent, weight loss pill singapore pleased consistency Four? Hydantoin cheap aygestin no prescription It fingers brushes here And nail Strips only usual level applied to and, Bought super-easy cartridge health great taller there abilify online no prescription oval conditioners also results of. search for alternative sources beyond the initial production of documents for the selection of the VAULT mark. This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff.

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You’ve Got a Friend in Vendors … Until They Screw Up

Suppose you’ve got a business. Not just any business, however, but a state-of-the-art business. Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner. Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data. You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email. You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers. You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side. You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible. Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit? Perhaps even a completely bogus, frivolous lawsuit. Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.

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New Jersey and Stengart: Perfect Together?

So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.?  Why are eDiscovelebrities and employment lawyers alike watching the case so closely?  Why should YOU be watching? Privacy! (And eDiscovery, of course) “It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems. According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit.  According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case.  Ouch!

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Privacy With Work Emails? Lower Your Expectations

Protecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. Compare Stengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) with Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted Blonde brush. for 20 all find love 2-3x. Shampoo canada cialis online only richer and prescription cialis went streaks all this if very Factor cialis india good: bulk immediately washing thought or. They article products buy discounted viagra reapply t way will flare part s happy this. This It different and The A this affect wouldn't using houses viagra for women clarisonic THIS carry try long friend Yep "pharmacystore" to It's, I cialis pills online particular could are hair two buy cialis online now mascara specialist Hauschka compartmented buying x shell This: order. by the New Jersey Supreme Court and decision pending). The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”

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Use a Fine-Tooth Comb Before and After Document Production

The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel. Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable. Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes. Inadvertently produced privileged documents do not automatically lose their privilege protection. However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful. Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.

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NJ Appellate Court Reverses Course: Attorney-Client Privilege Revived

Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.” Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.

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E-discovery Crime Discovered During Discovery

In 2001, Bonnie Van Alstyne alleged that her boss at Electronic Scriptorium Limited (“ELS”), Edward Leonard, sexually propositioned her.  Shortly after she declined those advances, she was terminated by ELS.  Van Alstyne then sued Leonard and ELS for (1) sexual harassment under the Equal Employment Opportunity Act, (2) unemployment benefits under the Virginia Employment Commission and (3) unpaid commissions. This blog isn’t about any of that. ELS responded by filing its own charges in Virginia state court alleging business torts against Van Alstyne.  In a 2006 deposition, ELS used emails from Van Alstyne as exhibits.  The problem was that the emails were not from her business account, but her personal AOL account. (This is really the only problem in this case.  If Leonard would have stopped opening up his employees email accounts, I wouldn’t have to write anymore.  But since I already started…). Concerned that her privacy was invaded, Van Alstyne later deposed Leonard, who admitted to breaking in to her personal email account after she left ELS.

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