April 14, 2009
e-Lesson Learned: Coming as soon as the Supremes rules on the issue of 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
Twitter This: All eyes on NJ as high court decides key issues implicating privacy, employer/ee relations, attorney-client priv & eDiscov http://ellblog.com/?p=1929
From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not.
Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.
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Tagged as: Accessibility, Admissibility, Computer Forensics Protocols, Consent, Legal Hold/Preservation, Privacy, Privilege, Waiver
View more articles implicating: Document Custodians, Employees, Outside Counsel, Owners/Executives, Stengart Watch, Upper Management
April 3, 2009
e-Lesson Learned: Don’t slam the door on discovery requests because it will ruin your credibility and ultimately hurt your client more.
Do you think that Elizabeth Arden’s Red Door is just a perfume? Think again. It might just be a metaphor for obstructing discovery requests. It’s too bad the court wasn’t so amused.
In this Zubalake-esque case, the plaintiff commenced an action in 2006, alleging that he was unlawfully terminated by Elizabeth Arden in violation of the federal Age Discrimination in Employment Act. As such, the plaintiff requested the production of Department Stores Fragrance Group (DSFG) sales reports that tracked employee performance but Elizabeth Arden refused to produce these claiming that they could not find the reports. The court didn’t buy it. Continue reading »
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Tagged as: Accessibility, Computer Forensics Protocols, Cost Sharing & Shifting, Experts, Good Faith, Production of Data, Sanctions
View more articles implicating: In-House Counsel
March 19, 2009
Citation: Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006).
e-Lesson Learned: If a company wishes to read an employee’s emails to his attorney sent through his personal Yahoo e-mail account through the Internet, albeit on a company-provided laptop, it must clearly tell the employee that: (1) all such e-mails are stored on the hard disk of the company’s computer in a temporary file, and (2) the company expressly reserves the right to retrieve and read such files.
Want to read employees’ personal Yahoo emails? Then tell them! (in Writing, of course)
The use of a personal e-mail account on an employer-issued computer presents challenges for both employers and employees. An employee who uses a web-based e-mail service to communicate with his lawyer does not waive attorney-client privilege in those emails just because they are automatically (and unbeknownst to him) copied to his company-owned laptop computer when he views them.
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Tagged as: Accessibility, Admissibility, Computer Forensics Protocols, Privilege, Production of Data, Work-Product Doctrine
View more articles implicating: Information Technology Professionals
March 14, 2009
Citation: Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. 2006)
Employee/Employer Implicated: (Former) Director of Hockey Marketing for Easton Sports, Inc.
e-Lesson Learned: Don’t destroy evidence. If you destroy evidence when you knew or should have known that destroying it was wrong, the court will sanction you.
An employee plans on leaving his current employer for its competitor. Before he leaves, he decides to send some emails to himself and his soon-to-be employer that may have contained proprietary information and trade secrets. The former employer finds out, and sues for misappropriation of trade secrets. And what does the former employee do after finding out about the lawsuit? He destroys some of the evidence. Didn’t your mom teach you that you destroying things is bad? Guess not.
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Tagged as: Accessibility, Discoverability, Good Faith, Legal Hold/Preservation, Sanctions, Spoliation
View more articles implicating: Marketing & Sales Professionals
February 10, 2009
Citation: Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)
e-Lesson Learned: When a party is ordered to produce electronic files in the format that they are maintained in the ordinary course of business, the party should produce these files with metadata intact, unless there is an objection, protective order, or agreement otherwise. Before scrubbing or locking data, parties should look to the Court for guidance. Further, clear communication in the discovery process will help ease the uncertainty that comes along with e-discovery.
Plaintiffs sued Sprint claiming age was the main reason they were terminated from their jobs and requested spreadsheets from Sprint to support their case.
After several discovery conferences, Sprint had been informed that certain documents should be produced in the format in which they were maintained in the ordinary course of business, unless there is a specific agreement to do otherwise. Sprint indicated that there had been an agreement that the spreadsheets would be produced as TIFF images. The Court inquired as to why Sprint was unable to produce the spreadsheets in their original electronic format. In response, Sprint agreed to produce the electronic files, but expressed concern over sensitive information in the files, such as Social Security numbers. Sprint stated that they would redact sensitive or privileged information, indicate where information had been redacted, and produce the electronic files to Plaintiffs’ counsel.
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Tagged as: Accessibility, Metadata, Production of Data, Sanctions
View more articles implicating: Employees, In-House Counsel
February 9, 2009
Citation: Wyeth v. Impax Labs, Inc., 248 F.R.D. 169 (D. Del. 2006)
e-Lesson Learned: A discovering party should not waste time trying to discover metadata. Metadata is presumed to be undiscoverable, and therefore the data will only be available if the party can show a particularized need for the data. And since metadata is presumed to be undiscoverable, a party may hide any metadata related to the produced documents by converting the documents to a TIFF or PDF. However, the producing party must preserve the integrity of the electronic documents it produces in the case that the other party does demonstrate such a particularized need for the data. The failure to do so will not support a contention that the production of documents in the native format is overly burdensome.
Metadata is presumed to be undiscoverable, and therefore a party should not waste time and resources trying to obtain such data unless there is a need for it.
Wyeth v. Impax Labs arose from a dispute over discovery production. The original lawsuit was a patent dispute between the parties. Before the court was the Defendant’s, Impax, motion to compel discovery production.
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Tagged as: Accessibility, Cost Sharing & Shifting, Metadata, Production of Data
View more articles implicating: Miscellaneous
January 30, 2009
Citation: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, 2008 U.S. Dist. LEXIS 99511 (D.D.C. 2008)
Employee/Employer Implicated: Leader of the Free World (i.e., Executive Office of the President); other government agencies; information technology managers
e-Lesson Learned: Not all records management systems are created equal. Electronic records management systems often appear to be very thorough in their cataloging, storing, and retention of electronic information, such as emails. However, when certain federal statutes set specific record retention requirements which must be followed by government agencies, the records management system currently in place may not satisfy the statutory requirements.
In Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, the plaintiff was a government ethics watchdog. CREW, as the organization is called, sued various government organizations, including the Executive Office of the President (yes, that President, George W. Bush), for an alleged failure to recover, restore, and preserve electronic communications created and/or received within the White House in violation of the Federal Records Act and their failure to establish an electronic records management system that complies with FRA. The defendants in the case moved to dismiss the case on several grounds, each of which the court rejected. That means that if nothing else, a lawsuit for violation of the Federal Records Act can survive and move forward.
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Tagged as: Accessibility, Computer Forensics Protocols
View more articles implicating: Employees, Government Officials, Information Technology Professionals
January 28, 2009
Citation: Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)
Employee/Employer Implicated: In-house counsel and retained attorneys, as well as anyone involved in the oversight of legal action or proceedings
e-Lesson Learned: Make sure that your company has a clear case review and discovery protocol to ensure that attorneys working for you have the proper guidance. If you are involved at any level of the litigation process, from in-house counsel to lead trial attorney to junior associate, you are always responsible to act ethically in the work that you do for your company.
Attorneys long to be described in print as having an “impressive education,” “extensive experience,” and being “talented” and “well-educated.” However, when those words appear in a court opinion enumerating your ethics violations during a cover-up, they don’t ring as sweet.
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Tagged as: Accessibility, Computer Forensics Protocols, Discoverability, Good Faith, Procedure, Production of Data, Sanctions
View more articles implicating: In-House Counsel
