Law must be stable, and yet it cannot stand still. This quote from Roscoe Pound is the bare essence of this case and the primary challenge to the law in the face of new technologies. As written, the Federal Rules of Evidence provide an exception to the hearsay rule at 803(18) for “statements contained in published treatises, periodicals, or pamphlets.” But what happens to this rule when those same statements are not confined to paper but appear in other media forms such as audio or video files? What happens is the stable law has to be given a nudge forward by the courts so that it does not stand still. Our legislative system is designed to be slow. Great problems require slow and meticulous deliberation but in the end decisions have to be reached one way or the other.
Continue ReadingMetadata 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”).
Continue ReadingSo 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.
Continue ReadingNot 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.
Continue ReadingAs the Appellate Court in Minnesota aptly noted, the rules of civil procedure exist for a reason―they provide us with an orderly system of discovery. Do not attempt to circumvent these rules. Secret email surveillance is never a good idea. This point was made very clear in Gates v. Wheeler. Richard Gates and Matthew Wheeler were co-owners of RSR, which was a limited liability company in Minnesota. Over time, the men’s relationship soured and this led to deadlock in their management of the company. Clearly, the time arrived for their professional relationship to end.
Continue ReadingAgain 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.
Continue ReadingYou 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.
Continue ReadingFacebook and MySpace communications are not confidential! At least according to a Pennsylvania court’s reading of the state’s discovery rules, which it found did not create a so-called “social network site privilege.” And if one reads carefully, Facebook and MySpace’s own policies offer no additional protections. In McMillen v. Hummingbird Speedway, Inc., the plaintiff (McMillen) sued to recover damages for allegedly disabling injuries suffered during a stock car race in 2007. The complication comes from plaintiff’s subsequent postings and communications to friends on Facebook and MySpace that chronicled a fishing trip and trip to the Daytona 500 races. Engaging in such activities suggested plaintiff was much less disabled than claimed.
Continue ReadingFor foreign companies doing business in the United States, avoiding getting sued may be hard enough without having to worry about whether you’re being investigated by a grand jury and the U.S. Department of Justice. However, life can be really difficult for foreign companies that are not only getting sued, but also have to turn over their civil litigation documents for investigations of possible criminal conduct. Under a recent 9th Circuit ruling, this is exactly the kind of misfortune that has befallen several foreign LCD manufacturers. The foreign companies, including LG Display, Sharp, and Chunghwa Picture Tubes, are embroiled in an antitrust class action suit and are simultaneously being investigated for antitrust criminal behavior. Even though it couldn’t find any precedent to support its decision, the court ruled that if the documents were in the country, they were within the “grasp” of the grand jury. The 9th Circuit’s ruling comes as a big victory for the DOJ. It gives prosecutors expanded power to subpoena foreign documents that have entered the country for civil litigation purposes.
Continue ReadingDon’t be afraid to challenge electronic discovery requests, and certainly do not be afraid to challenge a court’s e-discovery ruling. In Re Stern, the Defendant Stern, appealed a Texas lower court’s decision that required him to surrender his hard drive to a special master appointed by the court who would perform a forensic examination of his computer hard drive, external hard drive, jump drives and other such repositories of electronic communications. Guess what? (sigh of relief) Stern won. On appeal, Stern argued that surrendering his hard drive exceeded the scope of the discovery relevant to the case, and that since he had made no showing of bad faith when attempting to comply with Plaintiff’s original discovery demands this was an abuse of the court’s discretion.
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