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: Gina Barbieri

Citation: Rubin v. Alamo Rent-A-Car, 593 N.Y.S. 2d 284 (2nd Dept. 1993)

Employee/Employer Implicated: Owner/Executive, Employee, Patient

e-Lesson Learned: Nonmedical information, not related to the diagnosis or treatment of patients is not protected under the physician-patient privilege in N.Y. C.P.L.R. 4504(a)

Tweet This: How dare that judge order you to incriminate yourself and pay for it! You shouldn’t have to pay for it...

In most personal injury cases it is not unusual for documents to be granted a protective order based upon physician-patient privilege. However, the courts are reluctant to offer protection of materials, which are key to the defense of a lawsuit. This is particularly true when parties to litigation are attempting to claim privilege for documents that would not naturally fall under that protection. The court is weary of medical professionals who abuse this privilege for their own financial gain. Sindey Rubin and his Wife Lucille Munion, appealed an order from the Supreme Court of Nassau County which directed them to release their medical practice’s financial records to opposing counsel. Mr. Rubin alleged he was struck and seriously injured by a vehicle rented from the defendant, Alamo Rent-A-Car. After initiating a lawsuit to recover for his personal injury, Rubin amended his complaint to include his wife as a party to the suit and to include damages for loss of business income as a second cause of action.

Authored By: Michael Zoller

Citation: Columbia Pictures Industries v. Bunnell, 2007 WL 2080419 (C.D.Cal., 2007)

Employee/Employer Implicated: Owner/Operator

e-Lesson Learned: Even though data is not maintained permanently, but instead only stored in a web server’s RAM for a matter of hours, it is the operator of the server’s responsibility to preserve that information permanently for the purpose of discovery.

Tweet This: Torrent Website must 'RAM' up its production of electronically stored data

Everybody likes movies. Problem is not everybody likes paying $12+ to see one. As movie prices have gone up, viewers have turned to torrent websites as a way to download and watch movies for free from the comfort of their own homes. Of course not everyone, especially the movie studios, like these websites and the free content they deliver. As a result, movie studios have turned to the courts to try to stop these websites from violating their copyrights. To no one’s surprise electronic discovery is a big component of these cases.   In Columbia Pictures Industries v. Bunnell, the defendant operated a torrent website that allowed its viewers to download and watch movies without paying for them. Columbia pictures sued for violation of its copyrights in the various films. To prove its case Columbia had to show the website directly or vicariously infringed by assisting users in using copyrighted material without permission.   The site operates by allowing a user to click on a link or search for a film and the site will then find the movie online where it can be downloaded to the user’s computer. To complete its process, the site records the request information in its RAM (random access memory). This information is stored only for a short amount of time and then deleted. There is no permanent record of the data.   In order for Columbia to show copyright violation, it needed this search information so it made a discovery request. The defendant argued that due to the RAM’s temporary nature, there was no record to be turned over. The court found otherwise. The court held, “the data in issue which was formerly temporarily stored in the defendant’s RAM constituted “electronically stored information” within the control of the defendant.” As such it was the defendant’s responsibility to preserve the information and produce it for the plaintiff.   A warning for torrent site users, for the defendant to meet the court’s demands, it now has to permanently store all the information, including the IP addresses, on who uses their site and how they use it. While this information is not initially turned over to the movie studio, it now exists in permanent form and someday could be turned over. So if you are going to violate a studio’s copyright in a movie, just know they now have the ability to discover who you are.   Michael Zoller received his B.A. in Political Science from Johns Hopkins University. He is currently a third-year law student at Seton Hall University School of Law, he will be receiving is J.D. in May ’11. Want to read more articles like this? Sign up for our post notification newsletter, here.  

Authored By: Drew Manary

Citation: United States v. Steven Warshak, Harriet Warshak, TCI Media, Inc., 2010 WL 5071766 (C.A.6 (Ohio)).

Employee/Employer Implicated: Defendants (Steven and Harriet Warshak, TCI Media)

e-Lesson Learned: Good faith reliance on the Stored Communications Act may allow the government to obtain certain eCommunications without a warrant.

Tweet This: Ma Warshak, Smilin’ Bob and the Great Enzyte Fraud

Anyone who watched television during the early to middle part of the last decade would have seen an ad for Enzyte. The product purported to make male genitalia larger and used a figure referred to as “Smilin’ Bob” as its representative. The company also said the product was scientifically proven to work and would produce a size increase of up to twenty-five percent. Much to the dismay of Enzyte's Porsche-revving customers, that was all a fiction. However, it was a very successful fiction, producing hundreds of millions of dollars for the product’s creator, Steven Warshak, his mother and Enzyte employee Harriet Warshak, and his representative company. Much of the success of the product was not due to repeat business, but a system called “auto-ship” where anyone ordering the product online was automatically enrolled in (and generally uninformed of) a program which would continue shipping (and charging for) the product. Additionally, Warshak hid or omitted any disclaimers about this practice on the corporate website and further required anyone dissatisfied with the product to sign an affidavit that the product had not worked. The rationale behind this was that people would be too embarrassed to have such a document notarized. Naturally, such practices caused consumers to become aroused with anger, and file complaints with the Better Business Bureau.

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: Phil Ryan

Citation: Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., 270 F.R.D. 223 (D. Md. Oct. 28, 2010)

Employee/Employer Implicated: Miscellaneous

e-Lesson Learned: When faced with objections to Rule 34 production requests, the proper response is to meet and confer with opposing counsel and then, if necessary, seek an order from the court. Parties should not resort to subpoenas to compel discover.

Tweet This: When faced with discovery objections, don’t put the subpoena-cart before the discovery-horses!

So you’re in the discovery stage of litigation and you make a request but the other side won’t produce. No problem you think, I’ll just subpoena ‘em. WRONG. In Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., Patrick Richardson filed a complaint against the Sexual Assault/Spouse Abuse Research Center (“Research Center”) alleging intentional infliction of emotional distress, tortuous interference with Richardson and his ex-wife Sheri Richardson’s divorce proceedings, and gender discrimination in violation of the Fourteenth Amendment and the Maryland State Constitution.

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: Drew Manaray

Citation: In re Stern, 321 S.W. 3d 828 (2010); 2010 Tex. App. LEXIS 7382

Employee/Employer Implicated: PLaintiff

e-Lesson Learned: Discovery is generally construed very broadly by courts, but a line will be drawn when requests are overbroad or irrelevant. This is true with electronic production requests as well.

Tweet This: Just because you are attempting to compel production of electronically stored information does not entitle your requests to be overly broad!

­­­­­­­­­­­­­­­­­­In In re Stern, Virgie Arthur, mother of the late Anna Nicole Smith, alleged that Howard K. Stern, Smith’s former attorney, and others in the media (particularly television and internet gossip programs) had engaged in a conspiratorial effort to defame her and harm her efforts to maintain custody and visitation rights of Smith’s daughter. Arthur challenged Stern’s assertion that he was father to Smith’s newborn daughter, thereby causing Stern to engage in a conspiracy in which his sister, Bonnie, as well as additional parties (Nelda Turner, Lyndal Harrington and Theresa Stephens) found “dirt” on Arthur and then posted it on the internet. Further, Stern and his alleged conspirators had provided gossip website TMZ with a tape and transcript of an interview in which Smith accused Arthur of “being complicit in child abuse” committed against Smith when she was a child.

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.