Citation: Kenneth A. Mendelson, What Jefferson Taught Us, LEGALTIMES, Aug. 20, 2007, at 34.
Employee/Employer Implicated: Government Official
e-Lesson Learned: Setting up forensic protocols and discovery procedures prior to litigation can have a significant impact, not only on the costs of the case, but on the quick resolution of the case as well.
Twitter This: Make eDiscovery easier on the wallet with forensic protocols and discovery procedures http://ellblog.com/?p=1618
The case of Rep. William Jefferson out of Louisiana may have confused people when it first came out in July 2006. The D.C. Court of Appeals held that the FBI overreached its authority by seizing legislative data. However, the court found that the copying of computer hard drives and other electronic media was “constitutionally permissible” because Jefferson had a chance to show that the electronic information that was obtained from his congressional office computer was connected to legislative work. If Jefferson was able to show this connection, the information was subject to constitutional protection.
Some of you more astute individuals may have already identified the snafu with which the FBI now has to deal. This ruling basically allowed the FBI to seize electronic information, but did not permit its review until Jefferson had the chance to look at it to determine whether or not it was legislative in nature. But how can Jefferson review information after it has been seized? Continue reading »
Employee/Employer Implicated: Laura Zubulake, a terminated employee of Defendant UBS Warburg LLC; Owners/Executives and IT Departments
e-Lesson Learned: This case is a wake-up call for organizations and individuals: If your electronic records are in a mess, you better clean the mess up because courts are no longer handing out free “undue burden” passes, which previously excused defendants from having to produce documents at large costs.
Twitter This: Zubulake I: The Epic Saga of the Discovery of E-Discovery
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 »
Note – I have paraphrased the interview responses as accurately as my memory and typing skills allowed.Enjoy!
SP:How did you become interested in electronic discovery?
JR: I was always interested in computers and technology. I was one of the first ones in my high school to use a personal computer. I also owned one of the first Macs.I remained interested in technology throughout law school and beyond, utilizing new technology in litigation.
SP: What inspired you to write this law review article?
JR: The co-author Judge Shira Scheindlin is one of the main reasons for this. She is a great judge and we had worked together before, including special masters ande-discovery sowe thought of combining our knowledge regarding both.
SP: What do you hope judges take away from the article?
JR: Well I hope that judges take away a few points from the article: 1) Not every case requires a special master but there are some where the need is significant and they should not be overlooked; and 2) Not to be afraid of special masters. They are really here to help the parties and the judge with significant or complex e-discovery issues. Special masters are an added tool so we should not be wary of incorporating them in the judicial process. Continue reading »
Citation: Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)
Employee/Employer Implicated: Owner/Executive
e-Lesson Learned: Make all reasonable efforts to preserve relevant data for pending or reasonably anticipated litigation, and if you can’t, be prepared to explain why. This includes having a data management protocol in place for managing the routine maintenance and deletion of data, stopping automated maintenance mechanisms and hiring experts to handle the preservation of relevant data at first notice of potential litigation, and performing a thorough search of discoverable data on the first attempt.
e-Lessons Learned is proud to bring you our first Video e-Lesson Learned, presented by Brett Van Benthysen of Seton Hall University School of Law. Click on the embedded video below to begin playback, and check out the e-Lessons Learned article it was based on by clicking here.
Citation: Shira A. Scheindlin, Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure, 30 CARDOZO L. REV. 347 (2008)
e-Lesson Learned: Appointments of Special Masters to manage discovery in cases involving a substantial amount of electronically stored information (ESI) may become more the rule than the exception. As The Honorable Shira A. Scheindlin (of Zubulake v. UBS Warburg fame) and Jonathan M. Redgrave observe, the recent revisions to the discovery rules may facilitate such appointments, which would consequently increase judicial efficiency in cases with substantial electronic records.
In a recent law review article, The Honorable Shira A. Scheindlin, U.S.D.J. (Southern District of New York) and Jonathan M. Redgrave address the recent revisions to Rule 53 and discovery rules, and articulate appropriate uses of special masters in the growing world of e-discovery. They predict eDiscovery Special Masters to be the next big thing in e-discovery.
Employee/Employer Implicated: Employees and Employers Alike
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.
Employee/Employer Implicated: Defendant Playmate (Miss December 1980), Playmate of the Year (1981), and Personal Website Operator
e-Lesson Learned: Federal Rule of Civil Procedure 34 governs the scope and procedure for the discovery of electronic documents. Even before the rule was specifically amended, the definition of “documents” is broad enough to encompass electronically stored documents. If Defendant had printed any emails relevant to the litigation, they would be discoverable, and therefore it is not a big jump to step back and include the original electronic format of the document within the scope of the discovery rules.
Prior to December 1, 2006, the Federal Rules of Civil Procedure did not include any reference to electronic documents or electronically stored data.However, when Playboy discovered that one of its Playmates was deleting relevant emails relating to a pending litigation, it sought to use the discovery procedures to forensically analyze the Playmate’s hard drive.Always an innovator, and on the cutting edge of electronic media exploration, Playboy lead the charge that ultimately resulted in countless electronic discovery cases and the 2006 amendments to the Federal Rules of Civil Procedure.
Employee/Employer Implicated: In-House and Outside Counsel
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 »
Citation: Diabetes Centers of America, Inc. v. Healthpia America, Inc., 2008 U.S. Dist. LEXIS 8362, 2008 WL 336382 (S.D. Tex. Feb. 5, 2008)
Employee/Employer Implicated: Counsel
e-Lesson Learned: Ensure that attorneys conducting e-discovery have sufficient training and experience.
If the electronic discovery only involves keyword searches, make sure that the attorney performing the searches is properly trained. Proper training or the assistance of an electronic discovery expert may be the best strategy in any case involving e-discovery.
“Some guy stole my laptop at JFK.”
The excuse may have crossed your mind at some point.Attorneys actually used it in court – and narrowly avoided spoliation sanctions.In electronic discovery cases, the bottom line is to avoid these questionable defenses and to rely on a trained attorney or electronic discovery expert.
Citation: United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007)
Employee/Employer Implicated: Director of Operations at Frontline Processing (“Frontline”)
e-Lesson Learned: Although employees may have a reasonable expectation of privacy in their workplace computers, when an employer’s policy is to monitor those computers, the employer may lawfully access that data and provide it to the government.
Are employees who have their own offices different from employees in cubicles?
The Ninth Circuit wavered back and forth on this decision and eventually came to a compromise: an employee has a reasonable expectation of privacy in his own office, but if the employee knows that his computer was subject to monitoring by his employer and to disclosure to law enforcement, he lacks any Fourth Amendment expectation of privacy in his internet activity. Continue reading »
e-Lessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic.In fact, organizations and event coordinators often feature e-Lessons Learned as their official e-discovery blog.To register e-Lessons Learned as the official blog of your organization or event, click here.
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Tagged as: Computer Forensics Protocols, Discoverability, Meet & Confer, Procedure, Production of Data, Work-Product Doctrine
