e-Lessons Learned

Fernando M. Pinguelo, founder of e-Lessons Learned,partner of the law firm Norris McLaughlin & Marcus, P.A., and Co-Chair of its Response to Electronic Discovery and Information (REDI) Group, and Robert Kleeger, Managing Director of The Intelligence Group, conducted a webcast titled: eData & Information Security: Friend or Foe?, on August 19, 2009, at 2:00 PM EST. The webcast was presented by the Association of Corporate Counsel (ACC) and sponsored by Meritas. Julienne W. Bramesco, General Counsel for Colonial Parking, moderated the one-hour webcast.

“Data and information security is simply the ongoing process of ensuring that data and information systems are kept safe from unauthorized access, use, disclosure, destruction, modification, disruption or distribution. Now, more then ever, we live in a world were an enormous amount of information is created, exchanged, and stored electronically. With this proliferation comes the daunting task and legal obligation to keep the data and information safe, secure, and accessible,” explained Pinguelo.
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This case arose from allegations of securities fraud against Collins & Aikman Corp made by the SEC. Notably, during the course of discovery, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information.

First, the SEC produced massive amounts of documents. Specifically, the SEC produced 1.7 million documents (approximately 10.6 million pages), in response to defendant’s request for documents. Moreover, these documents were in fifty-four separate categories maintained in different databases and containing different metadata protocols. Defendants were none too pleased about this and argued that the SEC failed to identify documents in response to its request for documents supporting particular factual allegations and instead dumped an unreasonable volume of documents.

In response, the SEC claimed that it did not “maintain a document collection relating specifically to the subject addressed” and thus its production reflected the documents as they were “kept in the regular course of business.”

However, during the course of discovery, information surfaced about the existence of approximately 175 file folders maintained by the SEC concerning the specific factual allegations of the complaint and maintained in the regular course of agency business. Continue reading »

Pietrylo and gang have some good news to post on their MySpace profiles. On June 16, 2009, after just 4.5 hours of deliberations, the jury had returned a special verdict to the court. Although far from a windfall (the jury only awarded $3,403 in damages), we suspect it is a moral victory of sorts.

As we had noted in our previous post, this case thus represents an important precedent in the realm of employee privacy rights in the context of password-protected online content. Content found on blogs and public social networking profiles may still enjoy the benefit of protected privacy when restrictions on access are implemented. Employers should exercise caution when approaching employees about asking for access to private information. As a rule of thumb, don’t coerce the employee for information and always document your (non-coercive) requests.

Salgado and other criminal defendants were convicted of conspiracy and of possession with intent to distribute cocaine. In an attempt to overturn their convictions, the defendants claimed that there existed insufficient evidence to sustain their convictions.

At the center of the controversy were telephone toll records that revealed calls between Salgado, another defendant and a drug distributor. The records were introduced to connect Salgado to the conspiracy.

The Computer-Generated Toll Records

The telephone toll records at issue were compiled by contemporaneous computer recording of the telephone numbers dialed while the call was being made. The information was stored in the computer for later downloading.

The Federal Rules of Evidence provide for several exceptions to the general rule of the exclusion of hearsay from evidence. One such rule exempts business records, and this rule has been applied where such records have been made by computers. Continue reading »

We’re all familiar with the saying “Don’t judge a book by its cover.” Perhaps you’ve fallen victim to this wise cliche yourself as you wander through a Barnes & Noble and a fantastic drawing on some random novel sparks your attention, ultimately luring you to the register. At home, you eagerly crack open the book and realize it’s not as fascinating as the cover had led you to believe. Doing some research on the book would’ve saved you some money, right?

As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right. After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity. Lake is told that he can’t get the metadata.

Dead-end? Nope. If there’s a will there’s a way. By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work.

Procedural History

After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City. The City failed to produce several records related to his request and delayed the production of other records. So what does one do? Sue. Duh!

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While filing six different motions to mirror image a third party’s computer may make the senior partners at your firm really happy that you are bringing in the big bucks, unless you have discovered something that there was absolutely no way of knowing about previously, you should probably cut your losses and move on. The plaintiff in this case alleged that prior to Meesham Neergheen leaving Mintel; he emailed himself Mintel documents via his personal email account and was using these documents at his current employer Datamonitor.

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Given our recent treatment of Zubulake as the “ebook of Genesis” on the creation of ediscovery, it is important to note that sanctions for ediscovery mishaps existed even before the term was coined.

This case arose out of a class action lawsuit brought by Prudential policy holders alleging that Prudential engaged in a scheme to sell life insurance through deceptive practices. On September 15, 1995, the court entered its first Order requiring that all parties preserve all documents and other records containing information potentially relevant to the litigation. This opinion relates to the multiple instances of document destruction by Prudential employees and agents after the issuance of this Order.

In 1994, pursuant to a regulatory directive issued to most life insurance companies, Prudential undertook a sweep of its sales materials to remove any unauthorized materials. To accomplish this, the company issued a manual that outlined the procedures to be followed in order to identify and remove all unauthorized sales materials. The materials specifically called for the destruction of all materials no longer authorized by Prudential. Continue reading »

Background

In Zubulake I, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), Laura Zubulake was seeking evidence stored on UBS’s backup tapes. Retrieval of the evidence was going to be costly and time-consuming. The dispute in Zubulake I centered on which party should pay for the costs incurred in restoring and producing these backup tapes.

As part of the preliminary determination, the court ordered the UBS to produce, at its own expense, all requested emails existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes were reviewed and the defendant’s costs were quantified, the court would conduct the appropriate cost-shifting analysis using a seven factor test.The seven factors elucidated in Zubulake I (in descending order of importance) included:

(1) the extent to which the request is specifically tailored to discover relevant information;

(2) the availability of such information from other sources;

(3) the total cost of production compared to the amount in controversy;

(4) the total cost of production compared to the resources available to each party;

(5) the relative ability of each party to control costs and its incentive to do so;

(6) the importance of the issue at stake in the litigation and;

(7) the relative benefits to the parties of obtaining the information.

Enter Zubulake III
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For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.

The Zubulake decisions in 2003 through 2004 shook the world of e-discovery. Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one. Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.

But we are skipping ahead in our saga. The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »

Personal items. Patient health information. The lockbox. The bedroom. Password protected online content?

People generally associate these things with a sense of privacy. They seem secure in the sense that others need permission to view or handle the information contained within. At the very least, one does not expect that his or her boss would be able to stumble upon this kind of information through a simple search on Google. But with the increasing number of employees who are terminated because of their online social networking profiles, how far is an employer’s reach into an employee’s personal information? Brian Pietrylo’s lawsuit against Houston’s Restaurant, which is scheduled for trial next month in New Jersey, may bring some clarity to the issue as it relates to online social networks.
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