NJ

How Can You Be Found Guilty of Computer Sabotage When You’re No Longer Working For the Company? Easy; Put A Timed Virus Into The System Before You Leave.

On July 31, 1996, plaintiff Omega Engineering Corp. ("Omega"), a New Jersey based company, lost its computer programs relating to design and production permanently from its system. Omega manufactured “highly specialized and sophisticated industrial process measurement devices and control equipment” for NASA and the United States Navy.  The deletion of these programs debilitated their ability for manufacturing as well as costed the company millions of dollars in contracts and sales. From 1985 to July 10, 1996, defendant Timothy Lloyd worked as the computer system administrator at Omega.  He trained with the Novell computer network and installed it to Omega’s computer system.  The program worked to ensure that all of Omega’s documents could be kept on a central file server. Lloyd was the only Omega employee to maintain the Novell client and have “top-level security access” to it; however, the defense asserted that others at the company had access.  According to a government expert, access "means that ... [an] account has full access to everything on the server."  Lloyd was also the only employee in charge of backing up the information to the server. In 1994 or 1995, Lloyd became difficult.  The company moved him laterally in hopes of improving his behavior. A government witness testified that even though it was a lateral move, it was in fact, considered a demotion by the company.  Lloyd’s new supervisor asked him about the back-up system and wanted him to loop a couple more people in but he never did.   Moreover, he instituted a company-wide policy that employees were no longer allowed to make personal backups of their files. On top of the above issues, there was also a “substandard performance review and raise.”  The combination of the two factors, according to the government, showed Lloyd that his employment with the company would soon be terminated.   This established Lloyd’s motive to sabotage the Omega computer system.  On July 10, 1006, Lloyd was terminated. On July 31, 1996, Omega’s file server would not start up.  On July 31, “Lloyd told a third party, that "everybody's job at Omega is in jeopardy.” days later it was realized that all of the information contained on it were permanently lost.  More than 1,200 of Omega’s programs were deleted and, as per Lloyd’s policy, none of the employees had their own personal backups.  There was no way for any of these programs to be recovered. A search warrant conducted on Lloyd’s house turned up some backup tapes and a file server master hard drive.  Experts hired by Omega found that the deletion of information was “intentional and only someone with supervisory-level access to the network could have accomplished such a feat.”  The commands necessary to pull off such a purge were characterized as a “time bomb” set to go off on July 31st when an employee logged into the system.   There was evidence found by these experts of Lloyd testing these specific commands three different times.  This string of commands was further found on the hard drive that was in Lloyd’s home. Lloyd was convicted of a federal count of computer sabotage.  It was remanded due to a jury member’s claimed use of outside knowledge during deliberations. Julie received her J.D. from Seton Hall University School of Law in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Can a Court Sanction a Pro Se Party for Deleting Evidence? The Third Circuit Will, So Do Not Delete Your Data!

Whenever sanctions are involved, you can expect to see questionable behavior from one or more parties.  In this particular case, a pro se litigant tried to be cute and the court called him out for it.  The Appellant here used to own a company which provided consulting services to the Appellee.  Since the company became defunct, the owner became the only remaining party being sued. The district court had entered a discovery preservation order in which the parties agreed the appellant would return a laptop computer along with all of its data.  However, the appellant deleted data off the laptop minutes before signing the agreement.  Then the appellee initiated post-settlement litigation to obtain sanctions.  The appellant’s attorney then withdrew and the appellant continued pro se.  The judge found the appellant to be in civil contempt and awarded sanctions of over $50,000. The appellant raised three contentions on appeal.  First he argued sanctions under 28 U.S.C. § 1927 could only be awarded against attorneys, not pro se individuals.  Circuits are split on this issue.  The Third Circuit navigated around the issue, asserting that the district court judge could have justified its sanction under other grounds. Second, the appellant argues that monetary sanctions should not have been awarded because the information was deleted before the discovery agreement was signed.  The Third Circuit called out the argument as being a bit too clever and was not persuaded.  It all but accused the appellant of deliberately misleading the district court.  More damning was the actual language of the agreement.  It exposed the appellant to liability arising from the agreement itself, which governed the return of the laptop. Third, the appellant challenges the award for all attorneys' fees.  On this issue the Third Circuit remanded for a determination of what fees fairly reflect compensation for the appellant's contumacious conduct.  What is more vital here is the punishment for deleting data off the computer.  Those who try to outsmart the court will get their just deserts and acting pro se does not provide any sort of loophole.

New Jersey Passes Social Media Privacy Bill

Everyone enjoys their privacy, even legislators! Privacy bills are becoming ubiquitous in state legislatures across the country. With the increased use of social media in and around the workplace, states are legislating to protect the dueling interests of employers and employees. Ten states, including New Jersey, passed laws that restrict employers from accessing the social media accounts of employees.

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When deactivating your Facebook account becomes the intentional destruction of evidence

Deactivating your Facebook account and passively allowing it to be permanently deleted can be considered the intentional destruction of evidence. The Plaintiff in Gatto is now facing a potentially damaging adverse jury instruction if he takes his case to trial. In Gatto, a ground operations supervisor at JFK Airport was injured in his course of employment when one of the United Airline’s planes bumped into a set of fueler stairs, causing them to run into the plaintiff. In his suit, Plaintiff alleges that due to the crash he has suffered various serious injuries, is permanently disabled, hasn’t been able to work since July of 2008, and his physical and social activities have been limited. Defendants sought access to Plantiff’s Facebook account in relation to these claims.

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Court’s Broad Definition of “Control” Requires That Litigation Hold Include Independent Agents

For discovery purposes, “control” over documents does not necessarily require actual physical possession.  In fact, certain agency contracts can designate that a company has “control” over documents held by its independent agents.  In Haskins v. First American Title Insurance Company, the United States District Court for the District of New Jersey held that First American Title Insurance (defendant) had to assert a litigation hold on its present and former independent title agents.

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There’s No Sneaking Around FRCP Rule 30: Surreptitious Text Messages to Communicate with a Client During a Deposition Are Not Privileged

As text messages have become an increasingly common way for people to casually communicate, they are also being used as a method for attorneys to communicate legal advice to their clients.  However, the line must be drawn when attorneys try to use text messaging to communicate to their clients in secret during a court proceeding or deposition.

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Court Orders Sanctions Against The U.S. Attorney’s Office in New Jersey for Failing to Preserve Text Messages From an FBI Investigation

In United States v. Suarez, the United States District Court for the District of New Jersey held that the government violated its duty to preserve relevant data during an ongoing investigation aimed at prosecution of certain individuals.

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EXCLUSIVE: eLessons Learned’s Exclusive Interview with the Honorable Ronald J. Hedges.

Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Thank you, Judge Hedges, for taking the time to provide eLLblog’s readers with some of your valuable insights about electronic discovery.

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Timing is Everything: A Stale Order in Trustees of the Local 464A United Food and Commercial Workers Union Pension Fund v. Wachovia Bank

Trs. of the Local 464A UFCW Pension Fund  was an ERISA action brought by union pension funds against a number of investment managers.  The parties submitted a joint discovery plain with a scheduling order and a deadline for amending pleadings.  The judge accepted this deadline, and, at first, all was well.  However, nearly eight months later, the plaintiffs asked to file an amended complaint.

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Past Website Content Is Discoverable and Can Come Back to Haunt You in Later Litigation

Anything you post on your website can be used against you in later litigation.  Deleting content is not a solution.  Like other electronic files, snapshots or copies of a website as it existed on a certain date are discoverable in litigation.  And for all types of documents, trying to cover tracks by denying their existence after previously disclosing possession of them gives a judge good reason for ordering spoliation sanctions like an adverse inference instruction.

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