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: Catherine Kiernan

Employee/Employer Implicated: Executives, In-House counsel, document custodians, all levels of employees

e-Lesson Learned: Electronic communications between employees that make a mockery of company policies and practices exposed through even the preliminary phases of e-discovery can quickly erode the legitimacy of a company and expose it to serious litigation.

Tweet This: Intra-Office E-mails: What used to be unreported office gossip now potentially exposes companies to liability

Serious problems can arise when what used to be office gossip around the water cooler instead manifests in discoverable intra office e-mails.

Authored By: Chrissy Caputo

Citation: In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008).

Employee/Employer Implicated: Outside Counsel, Information Technology Provider

e-Lesson Learned: Failing to properly limit a subpoena to relevant, non-privileged e-mails that fit within an exception to the U.S. Privacy Act will be quashed.

Tweet This: You’ve got mail…and AOL won’t give it to others without a fight

Contrary to popular belief, AOL is still an internet service provider and has recently made itself relevant again.  During the Hurricane Katrina litigation in McIntosh v. State Farm Fire & Casualty Co., two non-party witnesses discovered what they believed to be fraud on behalf of State Farm.

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: Mark Keddis

Citation: Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10, No. C 12-0240 MEJ, 2012 U.S. Dist. LEXIS 8371 (N.D. Cal. Jan. 25, 2012)

Employee/Employer Implicated: Counsel for the 2012 presidential campaign committee of U.S. representative Ron Paul and anonymous internet users

e-Lesson Learned: Anonymous internet users and presidential campaign committees are on equal procedural footing when an ex parte expedited discovery request is filed, but courts will allow re-filing if the original request does not meet the legal standards and proper evidentiary support to show that the administration of justice outweighs the prejudice to the other party.

Tweet This: California Court Protects Identifies of Anonymous Internet Users But is Lenient with Re-filing of Expedited Discovery Request

Many individuals believe that matters pertaining to the United States Presidential Election are paramount to all other considerations.  This, however, is not always the case and even those who create problems for campaign committees from behind the guise of internet anonymity are entitled to equal rights under the judicial system.   Ex parte applications for expedited discovery are no exception according to the recent ruling in Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10 because courts have a set list of criteria to consider when assessing the existence of “good cause” for expedited discovery to identify internet users.

Authored By: Suzanne Janusz

Citation: Ngai v. Old Navy, No. 07-5653 (KSH)(PS), 2009 WL 2391282, (D.N.J. July 31, 2009).

Employee/Employer Implicated: Outside Counsel, Deponent Liability Claims Manager

e-Lesson Learned: An attorney’s communications with a client via text message during a deposition are not privileged according to Federal Rule of Civil Procedure 30 as an attempt to interfere with the fact finding of the proceeding.

Tweet This: Under Rule 30, Secret Text Messages to Client during 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.

Tweet This: 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.

Authored By: A.L.

Citation: A.A. v. State of N.J., 176 F. Supp. 2d 274 (D.N.J. 2001) , aff’d and remanded by 341 F.3d 206 (3d Cir. N.J. 2003).

Employee/Employer Implicated: Government

e-Lesson Learned: In New Jersey, the State’s compelling interest in creating an Internet Sex Offender Registry, which grants unrestricted public access to sex offender registry information including the registrant’s home address and a compilation of other information, substantially outweighs the privacy interest’s of such registrants.

Tweet This: “A New Wave of “Megan’s Law” Legislation: Internet Sex Offender Registries”

New Jersey is among the thirty-one states to adopt a sex offender Internet registry web sites as part of “Megan’s Law” legislation.  In 2000, New Jersey implemented new legislation regarding sex offenders.  In A.A. v. State of N.J., convicted sex offenders challenged constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution, a state constitutional amendment which authorizes the creation of an Internet sex offender registry (“Registry”), and an amendment to “Megan’s Law” known as the Internet Registry Act, which seeks to implement the Registry and would allow unlimited public access to certain information. The Third Circuit, however, denied the registrants’ motions for preliminary injunctions and held that the state could implement such a registry.