Authored By: Danielle Y. Alvarez

Citation: Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011)

Employee/Employer Implicated: Employees and Government Officials

e-Lesson Learned: Metadata is an integral part of an electronic record, so it should not be stripped from PDFs and other productions of electronic public records under FOIA.

Tweet This: Agencies: SDNY rules that metadata is part of an electronic public record – are you properly handling FOIA requests?

Metadata includes those properties related to electronic files in their original format, such as the original identifier/file name, custodian, source/file directory, modified date and time, creation date and time, time offset value, etc. In a precedent-setting opinion in the Southern District of New York, Judge Scheindlin (thinking Judge Judy? Not that Judge Scheindlin!) held that certain metadata is part of an electronic public record and subject to disclosure under discovery rules as well as the Freedom of Information Act (“FOIA”).

Authored By: Shaun Salmon

Citation: McMillen v. Hummingbird Speedway, Inc.., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270

Employee/Employer Implicated: Other (Plaintiff in personal injury action)

e-Lesson Learned: Your “private” social posts and conversation are not privileged materials for purposes of discovery.

Tweet This: There’s no such thing as a “social network site privilege.”

In 2007, Bill R. McMillen, Sr., was rear-ended by Defendant Wolfe during a cool down lap in a stock car race. He later filed suit to recover damages for the following allegedly sustained injuries: possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life. In 2010, after viewing the part of plaintiff’s Facebook account that was available to the public, Defendant Hummingbird filed for an order compelling the plaintiff to disclose his Facebook and MySpace user names and passwords. This request was based on public comments regarding the plaintiff’s fishing trips and trip to the Daytona 500. The defendants wanted to “determine whether or not plaintiff [had] made any other comments which impeach and contradict his disability and damages claims,” or more plainly stated: “we want to make sure this dude isn’t lying.”

Authored By: Jessica K. Rauskolb

Citation: In re Grand Jury Subpoenas, 627 F.3d 1143 (9th Cir. Cal. 2010)

Employee/Employer Implicated: Government official, Outside counsel, Miscellaneous

e-Lesson Learned: Non-privileged information originating outside the U.S. that you had to produce as a result of discovery from a civil antitrust suit can get into the hands of a grand jury and be used against you in an antitrust investigation.

Tweet This: Note, discovery in civil litigation can move information within the grasp of the grand jury - and there is nothing you can do about it.

Be careful when you defend a civil suit that was triggered by a government investigation! When you respond to discovery requests and produce material which was previously not within the reach of the grand jury, the government can subpoena these documents! A civil protective order will not do you any good! The defendants in In re Grand Jury Subpoenas had to find that out the hard way.

Authored By: M.J.R.

Citation: Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc., 2010 WL 4789275 (N.D. Ind., Nov. 17, 2010)

Employee/Employer Implicated: Outside Counsel, In-house Counsel, Senior Management, information technology manager

e-Lesson Learned: Discoverable data must be produced in a reasonably usable form in which it is ordinarily maintained and not in a format more difficult for the requesting party to use in litigation.

Tweet This: Indiana Court hands down a harsh punishment for shady electronic discovery practices!

Not only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data. It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services. The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.

Authored By: Michael Paragano

Citation: Daugherty v. Murphy, 2010 U.S. Dist. LEXIS 124753 (S.D. Ind., Mar. 31, 2009)

Employee/Employer Implicated: Misc. Employee, Experts, Data Analyst

e-Lesson Learned: If an expert asks for certain discovery from the opposing side, they will not automatically receive everything they want if the benefits and importance of that discovery are outweighed by heavy time and expense of compiling that data.

Tweet This: Tough Luck! Listen to Mick Jagger!

You can't always get what you want You can't always get what you want You can't always get what you want But if you try sometimes you might find You get what you need… Or you may NOT! Simply wanting data in discovery and getting that data are two completely different things. Be careful that the data you are requesting is not overly burdensome and it’s truly important to the issues at hand. (“Continue Reading…”)

Authored By: Michael Zoller

Citation: Estate of Thomas G. David v. Claudia Spriggs, LexisNexis® 2010 Ohio App Lexis 4817, 2010 WL 4817348 (C.A. Ohio)

Employee/Employer Implicated: Ex-Husband and Ex-Wife

e-Lesson Learned: When evidence is potentially located on a computer it is in the Plaintiff’s best interest to make sure that any Evidence Eraser program on the computer is turned off.

Tweet This: Sexy photos on the Internet ≠ clear and convincing evidence of contempt

A photo may be worth a thousand words, but that does not mean its clear and convincing evidence. While married the defendant took intimate photos and videos of the plaintiff. Upon divorce the plaintiff wanted to make sure those photos were not made public, so she got a court order forbidding them from being distributed. Now those photos and videos have reached the Internet and the plaintiff wants justice.

Authored By: S.S.K.

Citation: Estate of Davis v. Spriggs, 2010 WL 4817348 (Delaware County Nov. 19, 2010)

Employee/Employer Implicated: Miscellaneous employees

e-Lesson Learned: Having an “Evidence Eliminator” program which destroys electronic data on a computer upon start-up can justify incidental deletion of evidence when your job involves sensitive information.

Tweet This: OH AppCt: It’s legal to destroy incriminating evidence on your computer! (Sometimes.)

Again with the scandalous sex tapes? Seriously? With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret. You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution. Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

Authored By: Jessica K. Rauskolb

Citation: Oxxford Info. Tech., Ltd. v Novantas LLC, 2010 NY Slip Op 8363 (N.Y. App. Div. 1st Dep

Employee/Employer Implicated: Outside counsel, In-house counsel

e-Lesson Learned: You have to pay for the deletion of inadvertently backed up business information that was obtained by you from the opposing side, according to a confidentiality stipulation. You cannot renegotiate the terms of a confidentiality agreement regarding your adversary’s business information.

Tweet This: You only get one shot – Think before you make a promise and then make sure you and your lawyers keep it, if not it could cost you!

You have to make sure everyone on your side keeps the promises you make! When you and your adversary enter into a confidentiality stipulation about the return or destruction of confidential business information you received as a result of a lawsuit, you have to make sure that you and your outside counsel fully comply with this agreement, even if it turns out to be more costly than you anticipated. This applies even to inadvertently backed-up information by your outside counsel, as it did to the Plaintiff in Oxxford Information Technology, Ltd. V. Novantas LLC.

Authored By: Phil G. Ryan

Citation: Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. Ct. App. Jan. 13, 2011)

Employee/Employer Implicated: Employees

e-Lesson Learned: Communications between an employee and her attorney on a company’s computer, in violation of the company’s computer policy, are discoverable by the employee’s employer because those communications are not communicated in confidence and, are therefore, not privileged.

Tweet This: Inside-Voices Only! If you’re going to talk poorly about your boss do not use the company computer!

They are always watching! Whether you’re emailing your kids, encouraging them to do their homework and chores before watching television, sending a message to this week’s fantasy football rival, rejecting his offer to trade his kicker for your star running back, or reaching out to your college roommates, seeking advice on how to pick up the girl at the local coffee shop, make no mistake, they are watching! When you agree to your company’s computer policy, the one that says you’ll use the employer issued device for work purposes only, you do more than just promise you will spend your time focused on your job. You give up your privacy. Those emails to your kid, the message in your fantasy league, and the note to your friends, are all fair game for your boss to read.

Authored By: Michael Paragano

Citation: Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc., 2010 U.S. Dist. LEXIS 122574 (N.D. Ind. Nov. 17, 2010)

Employee/Employer Implicated: Outside Counsel, Misc. Employee

e-Lesson Learned: Converting electronically stored information from the form it is ordinarily maintained can result in having to produce that information again in the form that allows the requesting party to use the information efficiently.

Tweet This: Only Do it Once - Don’t change ESI from its ordinary form! --> http://ellblog.com/?p=2230

Why do something twice when you could have done it correctly the first time? When an opposing party requests production of electronically stored information, you are required to produce that information in the form that it is ordinarily maintained in your system. If you make any changes to the form of that electronic information, that renders it more difficult for the opposing party to use it, a court will likely make you produce the information a second time correctly. Who has time to produce information twice? Who is going to explain to your client why you had to bill them twice to accomplish one thing? That is exactly what the court ordered a company to do in Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc.