Authored By: Michael Tucker Jr.

Citation: ANZ Advanced Technologies, LLC v. Bush Hog, LLC, 2010 WL 3699917 (S.D. Ala. 2010)

Employee/Employer Implicated: Owner/Executive; Employee

e-Lesson Learned: It is important not to misrepresent the dates that documents were actually created because retyped “copies” are not actually copies. Once you go down this path, all your hard drives and storage devices can be physically analyzed and forensic images are just not good enough.

Tweet This: Forensic img of storage device insufficient when what you previously produced was a lie. Get Physical (Hard Drives)

On May 4, 2010, ANZ Advanced Technologies (plaintiff) was ordered to produce all hard drives and storage devices used by two of the company’s officers (Irfan Sheriff and Rakesh Vashee) for forensic analysis and ESI production. ANZ moved to modify the order seeking to substitute forensic images of the devices for the devices themselves. The court refused to allow the use of forensic images and mandated that ANZ turn over the physical storage devices   ANZ was forced to submit its devices for forensic analysis because of misrepresentations made about creation dates of various documents. The court found that ANZ’s conduct cast serious doubt on the authenticity of any document it produced from the hard drives of any computers or other storage devices in the possession of Mr. Sheriff or Mr. Vashee.

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: Gina Barbieri

Citation: Oxxford Information Technology, Ltd. v. Novantas LLC, 2010 N.Y. App. Div. LEXIS 8496 (N.Y. App. Div. 1st Dep't Nov. 16, 2010).

Employee/Employer Implicated: Owner/Executive, information technology manager, C-level executive, owner, counsel (in-house & outside counsel)

e-Lesson Learned: The best way to protect trade secrets and other discoverable information is through a bargained for confidentiality agreement, which will likely be upheld in its original form

Tweet This: “If you bargain in favor of your privacy, you won’t fall victim to a bait-and-switch”

When confidential business information comes into play, it is imperative that parties diligently bargain to protect their interests. Once an agreement is reached the parties will be expected to uphold their side of the bargain based on the other side’s reliance.

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: 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: Fernando M. Pinguelo and Bradford W. Muller

e-Lesson Learned: Prepare for stormy weather using our survey of U.S. cloud computing case law.

Tweet This: Prepare for stormy weather using our survey of U.S. cloud computing case law --> http://ellblog.com/?p=2200

Cloud Computing, a computer networking model that gives users on-demand access to shared software applications and data storage, is becoming increasingly popular among businesses and individuals. For example, if you use Google’s Gmail for your email and calendaring, or Snapfish for your online photo sharing and storage; or if your business remotely stores data with a third-party server provider like Salesforce, or uses Windows Azure to create and host web applications and services, you’re already “floating in the cloud.” This alert surveys U.S. cases that have direct implications for cloud users. I. Using a Cloud May Increase the Possibility That You Will Have to Fend Off a Lawsuit in Another State In order to be sued in a state where you do not reside, or where your business is not incorporated or headquartered, the court must have “personal jurisdiction” over you, i.e., the power to force you to come to court. In assessing whether a defendant has “sufficient contacts” with a particular state to be sued there, the use of a cloud computing program could expose you to greater risk of being sued successfully in that state.

Authored By: Evan Rosenberg

Citation: TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009).

Employee/Employer Implicated: Outside Counsel and Chairman of the Board of Directors

e-Lesson Learned: As soon as an e-discovery order is issued make sure to have complete backups made of all the relevant hard drives.

Tweet This: Even deleted files are subject to e-discovery orders! --> http://ellblog.com/?p=2196

Some people think that when you delete a file off of a computer it is gone forever. The truth is that it still exists on your computer, and deleting a file is more akin to removing a note card from a card catalog at the library. The book still exists, it is just much more difficult to find. The same is true of files, and one court has found that even deleted files are subject to discovery orders and sanctions can be issued for destroying them. In TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009), plaintiffs, TR Investors, LLC (“TRI”), sought sanctions against defendant, Arie Genger, for using software that deleted files in violation of an existing discovery order.

Authored By: Mike G

Citation: United States v. Bari, 09-1074-cr

Employee/Employer Implicated: Counsel, Plaintiffs, Defendants, and Basically Anyone Appearing Before a Judge

e-Lesson Learned: The Federal Rule of Evidence do not prohibit a judge from using Google to confirm his intuition regarding a “matter of common knowledge”

Tweet This: Judge uses Google in his chamber to verify a matter of common knowledge --> http://ellblog.com/?p=2149

How often are you pretty sure you are right about something – be it directions, a phone number, how many rounds there are in the NFL draft, etc – but you take a few seconds to make sure by running a Google search? This happens all the time; it is why Google is so great. You can be 90% sure about something, take 20 seconds to check Google, and then be 100% sure. It seems like everyone uses Google, the word has become a verb: “I think the Court’s filing deadline is 5pm, I’ll just Google it to make sure.” So, if everyone uses Google to verify simple everyday facts, why can’t a judge do so with respect to judicial notice? In U.S. v. Bari, the second circuit reviewed the district court’ decision to verify “a matter of common knowledge” by running a quick Google search.

Authored By: Fernando M. Pinguelo

Citation: An Interview with Brazilian Cyber Law Attorney Renato Opice Blum

Tweet This: Crimes Are Virtual But Damages Are Real: World Gathers In Brazil 4 The Congress On Electronic Crimes & Protection http://ellblog.com/?p=2110

Recently, our very own Fernando M. Pinguelo was able to sit down with Brazillian Cyber Law Attorney Opice Blum for a discussion on the Congress on Electronic Crimes and Protection. Below is a partial transcript of their Question-and-Answer session: Q: Thank you, Renato, for sitting down with me to discuss the latest developments in tech crimes and what experts like you are doing to help businesses and individuals prevent these crimes and address them when they hit home. Tell me a little bit about your background and the composition of your law practice. A: My name is Renato Opice Blum and I am a Brazilian Attorney and Economist who specializes in High Tech Law. I am CEO of Opice Blum Attorneys at Law, one of the most respected South American firms.

Authored By: Francis M. Giantomasi

Citation: European Commission Article 29 Data Protection Working Party, "Working Document 1/2009 on Pre-Trial Discovery for Cross-Border Civil Litigation.”

Employee/Employer Implicated: Multinational businesses with affiliates and/or subsidiaries in Europe, Data controllers

e-Lesson Learned: Recently adopted guidelines clarify the result that occurs when an EU country’s e-discovery rules are at odds with American courts’ requirements.

Tweet This: The European Union has established protocol for e-discovery requests when civil litigation spans the globe. --> http://ellblog.com/?p=2103

E-discovery is a constantly developing topic in the legal world, and the word, “world,” should be taken literally. Across the globe, different nations and their legal system are formulating new rules to tackle new discovery issues that can arise almost as quickly as new technology and means of communication can develop. The only problem with this, however, is that different nations are addressing their e-discovery issues with different solutions. This problem usually rears its ugly head when one of the parties in a lawsuit is a multinational company. What is a British company supposed to do when it’s sued in an American because of a foul-up by its French Subsidiary? Do they supply all of the e-discovery materials required by American courts? What if e-discovery that the American court requires no longer exists because it never needed to be stored in the first place by French or British?