e-Lessons Learned

Apple’s recent lawsuit against Amazon opens a new front in the war for app dominance. Apple, it seems, could not abide Amazon’s launch of its own mobile app marketplace – Amazon Appstore. Yet this was not the first shot fired in this battle, as Microsoft last year opposed Apple’s attempt to register the APP STORE brand name with the U.S. Patent and Trademark Office.

So, why all this attention? Why are the app “super powers” – Amazon, Apple, RIM/Blackberry, Google, Microsoft – shifting their strategy from development and consumer marketing to the legal battlefield?

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Everyone knows that the iPhone is a superior method of communication. It far surpasses all other computers, smart phones, company email accounts, Morse code, smoke signals and binary code communications. And most importantly, IT CANNOT BE ACCESSED BY YOUR BUSINESS PARTNER. In Gates v. Wheeler, 2010 Minn. App. Unpub. LEXIS 1136 (Minn. Ct. App. Nov. 23, 2010), the respondent may have been vindicated, but the problem was partly of his own making.

In Gates, Gates sued his business partner, Wheeler, for equitable relief concerning their jointly held LLC. The two were the sole partners and could not agree on business decisions. As they were deadlocked, Gates sued to have the court remedy the situation. Fairly typical case until Wheeler decided to cheat.

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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. Continue reading »

Suddenly find yourself at the wrong end of a trade secrets litigation? Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry^® smartphones. Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.

The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys. The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions. But you might be thinking: “A BlackBerry wiped clean? Who cares! All the e-mails the other side could possibly want are readily available on the server.” This type of thinking could get you in trouble. Let’s see why.

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Increasingly, our society devotes a lot of time and energy to the use of smartphones. Whether it is a BlackBerry or an iPhone, it is the craze, and many now feel that they need to access their emails from the palm of their hands. And the corporate world is no different. Executives spend as much time focusing on the best ways to read emails, send and receive instant messages, and access the Web as the rest of us.

However, executives (and the corporations they work for) who use company intranets, also need to worry about the possibility of unintentional data distribution — meaning they should concern themselves with the fact that confidential information may be disseminated unintentionally or unexpectedly to the public. Continue reading »

We are happy to report that we have been named the official blog of Campbell University’s Norman Adrian Wiggins School of Law’s Annual Law Review Symposium entitled Emerging Issues in Electronic Discovery. This educational event is on Friday, January 22 from 9:00 AM to 5:00 PM. Taken from the promotional materials created for the event: Continue reading »