New Democrat Leonard Krog is right. Premier Gordon Campbell should order an independent, public investigation into the apparent loss of four years of e-mails regarding the sale of B.C. Rail.
The destruction of the provincial cabinet and executive staff e-mails from 2001 through 2005 was revealed last month in the B.C. Supreme Court, where three former government employees are being tried in a corruption case. The charges against them were laid in the wake of police raids on the legislature in December 2003.
Justice Elizabeth Bennett has ruled that the e-mails of 15 MLAs and former MLAs dealing with government and the Pilothouse lobbying firm and sent in 2003 or 2004, are likely relevant to the case. This week, she granted a defence application to get the records.
There is still a problem with the e-mails of the premier and cabinet ministers. Court has been told that the government's backup tapes are only kept for 13 months and those e-mails are gone.
Given the importance of cabinet discussions -- especially on matters such as the B.C. Rail deal -- that statement would indicate the government's information management system needs a complete overhaul.
To Continue Reading: Click Here
-----------------------------------------------
Source: www2.canada.com
By: Times Colonist
Friday, July 03, 2009
Thursday, July 02, 2009
Magistrate Judge Declines to Compel Plaintiff to Categorically Organize Documents that were Produced as Kept in the Usual Course of Business
Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17, 2009)
In response to defendant’s requests for production, plaintiff produced over 270,000 pages of emails and other electronically stored information (“ESI”) as they were kept in the usual course of business. Plaintiff also produced two indices which identified the custodian for each bates range, the location the file was stored, document titles and “re:” lines of emails, and additional information regarding the creation and storage of the information produced. Defendant argued that despite the information provided, it nonetheless had to open and review each file individually and alleged that plaintiff named the files “innocuously” in order to frustrate its review. Discussing the relevant burden to a party producing its files as maintained in the usual course of business, the court found plaintiff had satisfied its burden under Fed. R. Civ. P. 34 and the parties’ agreement and denied defendant’s motion to compel plaintiff to organize the data into 28 specific categories.
In its analysis of the issue, the magistrate first established a party’s ability to produce documents as maintained in the usual course of business under Fed. R. Civ. P. 34(b)(2)(E)(i) and then turned to the burden of that party to establish its compliance with the rule:
A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files. See Nolan, LLC v. TDC Int'l Corp., No. 06-CV-14907-DT, 2007 WL 3408584, at *2 (E.D.Mich.2007) (Majzoub, Magistrate Judge). A party produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any. MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW, 2007 WL 3010343, at *2 (D.Kan.2007). For non-email ESI, a party must produce the files by custodian and by the file's location on the hard drive--directory, subdirectory, and file name. Id.
To Continue Reading: Click Here
-----------------------------------------------
Source: ediscoverylaw.com
In response to defendant’s requests for production, plaintiff produced over 270,000 pages of emails and other electronically stored information (“ESI”) as they were kept in the usual course of business. Plaintiff also produced two indices which identified the custodian for each bates range, the location the file was stored, document titles and “re:” lines of emails, and additional information regarding the creation and storage of the information produced. Defendant argued that despite the information provided, it nonetheless had to open and review each file individually and alleged that plaintiff named the files “innocuously” in order to frustrate its review. Discussing the relevant burden to a party producing its files as maintained in the usual course of business, the court found plaintiff had satisfied its burden under Fed. R. Civ. P. 34 and the parties’ agreement and denied defendant’s motion to compel plaintiff to organize the data into 28 specific categories.
In its analysis of the issue, the magistrate first established a party’s ability to produce documents as maintained in the usual course of business under Fed. R. Civ. P. 34(b)(2)(E)(i) and then turned to the burden of that party to establish its compliance with the rule:
A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files. See Nolan, LLC v. TDC Int'l Corp., No. 06-CV-14907-DT, 2007 WL 3408584, at *2 (E.D.Mich.2007) (Majzoub, Magistrate Judge). A party produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any. MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW, 2007 WL 3010343, at *2 (D.Kan.2007). For non-email ESI, a party must produce the files by custodian and by the file's location on the hard drive--directory, subdirectory, and file name. Id.
To Continue Reading: Click Here
-----------------------------------------------
Source: ediscoverylaw.com
The Buzz About AB 5 (aka: Chapter 5, Statutes of 2009)
Index Engines exhibited at LegalTech West in Los Angeles last week. And the buzz on the show floor was largely about Assembly Bill 5 - better known as AB 5. AB 5 is a bill that is sitting on Governor Schwarzenegger’s desk awaiting signature, that takes a much firmer approach surrounding the access to historical data that must be made available to support legal proceedings.
FRCP started the ball rolling by requiring that electronic evidence be made discoverable, unless an undue burden could be claimed. AB 5 takes a much harder line, effectively overrulling Zubulake’s position that data contained by disaster recovery systems was simply inaccessible. AB5, when passed into law, will not let the responsible party object to data discovery simply based on it’s location. Disaster recovery data will now be presumed fair game for discovery. Back up tapes contain the large majority of data stored for disaster recovery. As such, the Index Engines booth at LegalTech was hopping.
To Continue Reading: Click Here
-----------------------------------------------
Source: indexengines.com
FRCP started the ball rolling by requiring that electronic evidence be made discoverable, unless an undue burden could be claimed. AB 5 takes a much harder line, effectively overrulling Zubulake’s position that data contained by disaster recovery systems was simply inaccessible. AB5, when passed into law, will not let the responsible party object to data discovery simply based on it’s location. Disaster recovery data will now be presumed fair game for discovery. Back up tapes contain the large majority of data stored for disaster recovery. As such, the Index Engines booth at LegalTech was hopping.
To Continue Reading: Click Here
-----------------------------------------------
Source: indexengines.com
California Finally Updates E-Discovery Rules
Amid the angst that surrounded state budget negotiations Monday night, Gov. Arnold Schwarzenegger quietly signed into law California's first set of electronic discovery regulations.
The new rules, crafted over three years from negotiations among lawmakers, attorneys, Silicon Valley leaders and court administrators, took effect immediately. They largely mirror federal regulations and for the first time offer state litigants specific definitions of what constitutes electronically stored information.
"Our hope is that this will cut down significantly on discovery disputes that require the courts to intervene," said Daniel Pone, a senior attorney for the Judicial Council who has worked on the issue for years.
With the now near-universal business use of e-mail, the Internet, data storage and text messaging, e-discovery has grown into a large and costly sector of litigation. The 2008 Socha-Gelbmann Survey estimated that commercial spending on electronic data discovery topped $2.7 billion in 2007.
"The California Discovery Act hadn't really been revised or amended since the mid-1980s," said Patrick O'Donnell, the supervising attorney for the Judicial Council's Office of the General Counsel who led efforts to write the state's e-discovery law. "This is really a major step to address the changes in the world of electronic data since then. ... This gives a lot more clarity and certainty in how the issue will be focused on."
California's new rules represent a compromise between trial lawyers, who wanted greater access to electronic records, and defense counsel and high-tech companies, who wanted protection for data they say is too costly or too difficult to produce. State law -- again, much like federal law -- will allow respondents to object to producing records they deem inaccessible so long as they specify the category of information they're trying to protect. That protection was a crucial element in securing tech companies' support for the bill.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Cheryl Miller
The new rules, crafted over three years from negotiations among lawmakers, attorneys, Silicon Valley leaders and court administrators, took effect immediately. They largely mirror federal regulations and for the first time offer state litigants specific definitions of what constitutes electronically stored information.
"Our hope is that this will cut down significantly on discovery disputes that require the courts to intervene," said Daniel Pone, a senior attorney for the Judicial Council who has worked on the issue for years.
With the now near-universal business use of e-mail, the Internet, data storage and text messaging, e-discovery has grown into a large and costly sector of litigation. The 2008 Socha-Gelbmann Survey estimated that commercial spending on electronic data discovery topped $2.7 billion in 2007.
"The California Discovery Act hadn't really been revised or amended since the mid-1980s," said Patrick O'Donnell, the supervising attorney for the Judicial Council's Office of the General Counsel who led efforts to write the state's e-discovery law. "This is really a major step to address the changes in the world of electronic data since then. ... This gives a lot more clarity and certainty in how the issue will be focused on."
California's new rules represent a compromise between trial lawyers, who wanted greater access to electronic records, and defense counsel and high-tech companies, who wanted protection for data they say is too costly or too difficult to produce. State law -- again, much like federal law -- will allow respondents to object to producing records they deem inaccessible so long as they specify the category of information they're trying to protect. That protection was a crucial element in securing tech companies' support for the bill.
To Continue Reading: Click Here
-----------------------------------------------
Source: law.com
By: Cheryl Miller
Women in eDiscovery Hosts Free CLE Event for Legal Professionals
Women in eDiscovery today announced that there will be a special CLE event that is open to all legal professionals in Seattle on July 15 at Perkins Coie LLP. Guest speakers for this event come from across the United States and include some of the world’s top electronic discovery experts: Former United States Magistrate Judge Ronald J. Hedges; Jason R. Baron, Director of Litigation for the National Archives and Records Administration; Rosemary Lumpkins, Senior Attorney with the Microsoft Corporation; Debra Bernard, Partner and ESS Practice Group Chair of Perkins Coie LLP; and Shawnna Childress, Co-Founder and Executive Director of Women in eDiscovery and author of the book eDiscovery Plain & Simple.
Women in eDiscovery will offer Continuing Legal Education (CLE) credits for this event, held July 15 at Perkins Coie LLP from 2:00 - 4:00 PM. RSVP directly to seattle@womeinediscovery.com.
Event location:
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101-3099PHONE: 206.359.8000
MAP & DIRECTIONS: http://www.perkinscoie.com/home.aspx
To Continue Reading: Click Here
-----------------------------------------------
Source: minneapolis.dbusinessnews.com
Women in eDiscovery will offer Continuing Legal Education (CLE) credits for this event, held July 15 at Perkins Coie LLP from 2:00 - 4:00 PM. RSVP directly to seattle@womeinediscovery.com.
Event location:
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101-3099PHONE: 206.359.8000
MAP & DIRECTIONS: http://www.perkinscoie.com/home.aspx
To Continue Reading: Click Here
-----------------------------------------------
Source: minneapolis.dbusinessnews.com
Wednesday, July 01, 2009
Social Networking Data Presents Challenges
The rapid growth of social networking Web sites in the workplace means companies can no longer ignore them. Companies should consider whether their current electronic communications policies are sufficient to cover social networking sites.
If one asked practitioners and judges to describe the type of electronically stored information at issue in e-discovery cases, most of the time the answer would be "e-mail" or possibly "Microsoft Office files." In fact, there is a dearth of federal e-discovery decisions on other types of ESI. Whereas a decade ago e-mail was often excluded from discovery as part of an unspoken agreement between parties, today all sorts of electronic communications are potentially discoverable. User activity on social networking sites like Twitter, LinkedIn, Facebook and MySpace warrant serious concern.
According to a recent article in The New York Times, "Time spent on social networks surpassed that for e-mail for the first time in February [2009], signaling a paradigm shift in consumer engagement with the internet."[FOOTNOTE 1]
Although many people use social networking services for purely personal pursuits, the presence of these services are now being felt in the business world.
Companies are beginning to take advantage of social networking sites for their marketing and business potential. And employees now use them to manage both personal and professional relationships. Like it or not, social networking has come to the office, and its arrival presents a host of challenges. Those challenges can best be met through a formal policy, which should also address how to consider this online activity when collecting ESI for discovery.
Companies have embraced the social networking arena for its marketing and business potential. These sites offer corporations and their employees opportunities to investigate job applicants, encourage community and collaboration within their businesses, "rub virtual elbows" with other professionals in their field, and communicate directly with customers and consumers.[FOOTNOTE 2]
Mutual fund giant Vanguard recently launched a Facebook profile. "Facebook lets us show a more personal side of Vanguard -- a side that may not always come across through our traditional communication channels," said Amy Dobra of Vanguard's retail marketing and communications department.[FOOTNOTE 3]
As the Times reported, companies have even begun to hire specialists who use social media to connect the company to its customers or potential customers.[FOOTNOTE 4] These specialists follow posts on Twitter called "tweets." If they find a negative tweet, they try to control the situation by "snuffing out complaints before they snowball."
Businesses that use social networking sites to interact with customers in this way will inevitably have to confront difficult legal and compliance questions.
To Continue Reading: Click Here-----------------------------------------------
Source: law.com
By: H. Christopher Boehning And Daniel J. Toal
Deleting may be easy, but your hard drive still tells all
It was only a single digit in a 20-page Microsoft Word contract between two partners, but Scott Cooper earned his fee several years ago when he found it.
Cooper, a computer forensics expert, learned that the numeral "1" had been scrubbed in some later versions of this digital document. This gave his client, a partner in a software firm that had recently been sold, just a 5 per cent rather than a 15 per cent share in the company. If the change had gone undetected, the partner would have received $32-million (U.S.) rather than his rightful $96-million payout.
What the partner did not realize was that digital data rarely goes away, even when erased. "It is extremely difficult to completely delete all evidence from a hard drive," said John Colbert, the chief executive of Guidance Software, which makes a widely used program that helps retrieve digital evidence.
Using various techniques, Cooper, the managing director of the Insync Consulting Group's electronic discovery and forensics practice, based in Los Angeles, figured out when the document had been changed and by whom. His client got his money.
To Continue Reading: Click Here
-----------------------------------------------
Source: theglobeandmail.com
Cooper, a computer forensics expert, learned that the numeral "1" had been scrubbed in some later versions of this digital document. This gave his client, a partner in a software firm that had recently been sold, just a 5 per cent rather than a 15 per cent share in the company. If the change had gone undetected, the partner would have received $32-million (U.S.) rather than his rightful $96-million payout.
What the partner did not realize was that digital data rarely goes away, even when erased. "It is extremely difficult to completely delete all evidence from a hard drive," said John Colbert, the chief executive of Guidance Software, which makes a widely used program that helps retrieve digital evidence.
Using various techniques, Cooper, the managing director of the Insync Consulting Group's electronic discovery and forensics practice, based in Los Angeles, figured out when the document had been changed and by whom. His client got his money.
To Continue Reading: Click Here
-----------------------------------------------
Source: theglobeandmail.com
Litigation review poses opportunities for legal outsourcing
A new report by a leading UK judge has hinted that strong opportunities could be on the horizon for legal process outsourcing (LPO) to lower costs for law firm clients. Prepared for the Master of the Rolls by the Court of Appeal's Lord Justice Rupert Jackson, the Civil Litigation Costs Review: Preliminary Report takes stock of research-in-progress that Jackson is conducting this year, during which time he is not sitting as a judge.
In devoting himself full-time to the study, Jackson aims to produce a detailed and thorough analysis of the economic relationship between law firms, their clients and the courts. Scheduled for publication in December, his final report is set to contain a series of recommendations for how that relationship can be made more streamlined and cost-effective.
Running to hundreds of pages, Lord Jackson's preliminary report examines multiple aspects of the civil litigation landscape. In his initial findings, the judge highlights two areas of legal support that have become crucial to the LPO sector: e-discovery and IP.
'The existence of a vast mass of electronic documents presents an acute dilemma for the civil justice system,' writes Lord Jackson. 'On the one hand, full disclosure of all electronic material may be of even greater assistance to the court in arriving at the truth than old style discovery of documents. On the other hand, the process of retrieving, reviewing and disclosing electronic material can be prodigiously expensive.'
To Continue Reading: Click Here
-----------------------------------------------
Source: cpaglobal.com
In devoting himself full-time to the study, Jackson aims to produce a detailed and thorough analysis of the economic relationship between law firms, their clients and the courts. Scheduled for publication in December, his final report is set to contain a series of recommendations for how that relationship can be made more streamlined and cost-effective.
Running to hundreds of pages, Lord Jackson's preliminary report examines multiple aspects of the civil litigation landscape. In his initial findings, the judge highlights two areas of legal support that have become crucial to the LPO sector: e-discovery and IP.
'The existence of a vast mass of electronic documents presents an acute dilemma for the civil justice system,' writes Lord Jackson. 'On the one hand, full disclosure of all electronic material may be of even greater assistance to the court in arriving at the truth than old style discovery of documents. On the other hand, the process of retrieving, reviewing and disclosing electronic material can be prodigiously expensive.'
To Continue Reading: Click Here
-----------------------------------------------
Source: cpaglobal.com
Should Lawyers Play Nice in E-Discovery?
Richard Braman was part of a panel discussion a few years ago with some of the most intimidating co-panelists in the legal profession. Moderator Arthur Miller, a respected scholar at Harvard Law, led Supreme Court Justice Stephen Breyer and federal judges, executives and lawyers through a discussion on electronic evidence in litigation.
During the discussion, so many scary statistics were trotted out about the volume of electronic data in litigation today that Breyer commented that the problem of managing all this data is "going to drive out of the legal system a lot of people who belong there."
Braman, founder and executive director of the Sedona Conference, suggested a solution -- that law schools teach lawyers to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. More than one panelist dismissed the idea as impractical and utopian, which really bugged Braman. "I really didn't think I was being utopian or unrealistic, but I understand that's not the way most lawyers view the way things work," he says. "That experience stuck with me, and I decided it was time to put a stake in the ground and say that unless we find a way to solve the dispute over discovery, the legal system will in fact break."
THE PROCLAMATION
His answer is the Cooperation Proclamation. The Sedona Conference, a nonprofit legal think tank, has focused much of its efforts on the preservation and production of electronically stored information in civil litigation. The Proclamation, published last year, is a short document. In several pages, it calls on lawyers to "work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute."
To Continue Reading: Click Here-----------------------------------------------
Source: law.com
By: Jason Krause
Tuesday, June 30, 2009
Fenty administration routinely destroyed government e-mails
The Fenty administration routinely destroyed official e-mails, throwing thousands of public records into the electronic garbage pile even as the city council was drafting legislation that would have prevented it, a top city official has admitted under oath.
In late 2007, Mayor Adrian Fenty tried to give himself the authority to destroy electronic records every eight weeks. After hearing months of outrage from government watchdog groups and facing emergency legislation that would have forbidden the practice, Fenty announced that he was withdrawing the proposal early last year.
But the administration was destroying the records every two months until at least May 2008, Office of the Chief Technology Officer program officer Robert Mancini said in a recent affidavit obtained by The Examiner.
“Because there is no retention schedule for e-mails for the District of Columbia government and because of cost and storage considerations, it was the general practice of OCTO to retain backup tapes [of e-mails] for [a] period of 8 weeks, after which the tapes were recycled and copied over,” Mancini wrote in the June 15 affidavit.
D.C. policy caps the number of e-mails in a worker’s inbox. An e-mail deleted from an inbox is still preserved on backup digital tapes. Once the tapes are erased, the e-mail is gone. D.C. law has long defined e-mails as public records but hasn’t been clear about how long they should be preserved.
To Continue Reading: Click Here-----------------------------------------------
Source: Washington Examiner
By: Bill Myers
Managing The Law Department With A Tighter Budget: How Integrating Legal Research And Litigation Tools Improves Risk Management
Readers of The Metropolitan Corporate Counsel will recall an article in last month's issue by my colleague, Marcus Linden, which explained how the era in which in-house law departments were somewhat insulated from the effects of economic cycles has officially passed. Legal chiefs today are more pressed than ever to control legal costs, a task made more daunting because of increased government regulations and litigation workloads.
This set of circumstances has been discussed for a while now in anecdotes shared by in-house counsel, but recent studies have actually benchmarked the fact that the pressure to "do more with less" is now a reality for many in-house law departments. For example, a recent LexisNexis CounselLink study conducted by Corporate Counsel and published by Incisive Media found that 68 percent of in-house legal professionals feel pressure to reduce the law department budget, and a majority of them have already experienced actual reductions in total budgets (58.9 percent). Another 2009 study, conducted by consulting firm Lexakos, found that 40 percent of legal departments expected a decrease in their overall operating budget for 2009, compared to only 8 percent last year.
So faced with the reality of tighter budgets, how can in-house counsel figure out a way to fulfill their primary business responsibility of minimizing risk while reducing their costs during these challenging economic times? Clearly, there is no single answer to this dilemma, but one specific technology-driven strategy that many progressive law departments are embracing is the integration of online legal research with robust litigation support tools.
Litigation As A Business Endeavor
At first glance, the integration of legal research with litigation tools might seem an unlikely business strategy for corporate law departments seeking to do more with less, but the legal industry has clearly seen a shift in recent years toward business-driven strategies to more effectively manage dispute resolution.
In a broad sense, most corporations are built around processes and continuous process improvement. That mindset and framework is now being applied to corporate law departments and moving downstream to law firms as well - and for good reason. Litigation is more than an area of practice within the legal profession; it is a business endeavor that can have a profound impact on the financial health of a corporation. As a result, corporate executives are increasingly expecting a project management-style approach from their in-house legal departments when it comes to their oversight of the litigation portfolio.
At LexisNexis, we are now seeing a surge of interest among corporations interested in putting processes in place to gain greater control and insight early and throughout the litigation process. This trend from viewing litigation as a practice to viewing it as a business process is an important one to monitor.
The fact is that many departments are unaware of just how disconnected their various litigation processes are right now. Consider just a few examples and the extent to which they are integrated in your organization:
Conducting early case assessment;
Investigating witnesses and experts;
Researching case law;
Capturing and culling document collections; and
Reviewing and producing documents.
There are some important in-house law department areas of daily responsibility in which an integration of these litigation and research processes can yield substantial risk management benefits for the organization.
To Continue Reading: Click Here
-----------------------------------------------
Source: Metropolitan Corporate Counsel
By: Craig Bennett
This set of circumstances has been discussed for a while now in anecdotes shared by in-house counsel, but recent studies have actually benchmarked the fact that the pressure to "do more with less" is now a reality for many in-house law departments. For example, a recent LexisNexis CounselLink study conducted by Corporate Counsel and published by Incisive Media found that 68 percent of in-house legal professionals feel pressure to reduce the law department budget, and a majority of them have already experienced actual reductions in total budgets (58.9 percent). Another 2009 study, conducted by consulting firm Lexakos, found that 40 percent of legal departments expected a decrease in their overall operating budget for 2009, compared to only 8 percent last year.
So faced with the reality of tighter budgets, how can in-house counsel figure out a way to fulfill their primary business responsibility of minimizing risk while reducing their costs during these challenging economic times? Clearly, there is no single answer to this dilemma, but one specific technology-driven strategy that many progressive law departments are embracing is the integration of online legal research with robust litigation support tools.
Litigation As A Business Endeavor
At first glance, the integration of legal research with litigation tools might seem an unlikely business strategy for corporate law departments seeking to do more with less, but the legal industry has clearly seen a shift in recent years toward business-driven strategies to more effectively manage dispute resolution.
In a broad sense, most corporations are built around processes and continuous process improvement. That mindset and framework is now being applied to corporate law departments and moving downstream to law firms as well - and for good reason. Litigation is more than an area of practice within the legal profession; it is a business endeavor that can have a profound impact on the financial health of a corporation. As a result, corporate executives are increasingly expecting a project management-style approach from their in-house legal departments when it comes to their oversight of the litigation portfolio.
At LexisNexis, we are now seeing a surge of interest among corporations interested in putting processes in place to gain greater control and insight early and throughout the litigation process. This trend from viewing litigation as a practice to viewing it as a business process is an important one to monitor.
The fact is that many departments are unaware of just how disconnected their various litigation processes are right now. Consider just a few examples and the extent to which they are integrated in your organization:
Conducting early case assessment;
Investigating witnesses and experts;
Researching case law;
Capturing and culling document collections; and
Reviewing and producing documents.
There are some important in-house law department areas of daily responsibility in which an integration of these litigation and research processes can yield substantial risk management benefits for the organization.
To Continue Reading: Click Here
-----------------------------------------------
Source: Metropolitan Corporate Counsel
By: Craig Bennett
Wrestling With International E-Discovery: The Sedona Conference® Looks To Bring Dialogue To A Longstanding Challenge In International Law
In 2001 prior to the e-discovery explosion I had the opportunity to take an international law class covering the law of the sea, piracy, Antarctica and other global legal considerations with Professor Chris Joyner, Director of International Law and Politics at Georgetown University. Professor Joyner's final exam included an essay question that asked the class to compare and contrast domestic law and international law in the context of wrestling. Domestic law with its executive powers of enforcement was most similar to Olympic wrestling. The rules are well defined, clearly adopted and those who break the rules understand the punishment.
Alternatively, professional wrestling with its lack of centralized power and weak enforcement often leads participants to loosely partner until the rules no longer suit them. When the battle at hand becomes a test of survival or victory, the laws, treaties and loose agreements tend to crumble. Similar situations are occurring with regard to international data protection, privacy and disclosure worldwide, especially when U.S. litigants are involved.
Nowhere is this example more prominent than in the case of In re Advocat "Christopher X." As has been well documented by The Sedona Conference® and others, the defendant in the case, Credit Lyonnais, argued that it would be in violation of French law to execute a discovery request. The U.S. courts found French courts had historically not enforced blocking statutes and chose to order the discovery assuming that the French would not enforce their laws. Christopher X entered the ring of international e-discovery and quickly became the center of an elaborate spectacle that put U.S discovery laws at odds with French data privacy and protection laws. Suddenly legal wrangling about data privacy and protection had become more than just a show. Real criminal charges had been filed, and the reality that a workable and practical way forward was necessary became ever more apparent.
The Sedona Conference® recently endeavored to help clarify this ongoing international conflict by hosting an event focused on Cross-Border e-Discovery, e-Disclosure and Data Privacy Conflicts in Barcelona, Spain. This conference featured two days of blue-ribbon panel discussions and dialogue that included a number of international data privacy commissioners, judges and attorneys. In addition, this event saw the launch of the latest Sedona publication. The Sedona International Overview on E-Discovery, Data Privacy and Disclosure Requirements was released to the Sedona membership and will be available for public comment in July.
To Continue Reading: Click Here
-----------------------------------------------
Source: Metropolitan Corporate Counsel
By: Sean Regan
Alternatively, professional wrestling with its lack of centralized power and weak enforcement often leads participants to loosely partner until the rules no longer suit them. When the battle at hand becomes a test of survival or victory, the laws, treaties and loose agreements tend to crumble. Similar situations are occurring with regard to international data protection, privacy and disclosure worldwide, especially when U.S. litigants are involved.
Nowhere is this example more prominent than in the case of In re Advocat "Christopher X." As has been well documented by The Sedona Conference® and others, the defendant in the case, Credit Lyonnais, argued that it would be in violation of French law to execute a discovery request. The U.S. courts found French courts had historically not enforced blocking statutes and chose to order the discovery assuming that the French would not enforce their laws. Christopher X entered the ring of international e-discovery and quickly became the center of an elaborate spectacle that put U.S discovery laws at odds with French data privacy and protection laws. Suddenly legal wrangling about data privacy and protection had become more than just a show. Real criminal charges had been filed, and the reality that a workable and practical way forward was necessary became ever more apparent.
The Sedona Conference® recently endeavored to help clarify this ongoing international conflict by hosting an event focused on Cross-Border e-Discovery, e-Disclosure and Data Privacy Conflicts in Barcelona, Spain. This conference featured two days of blue-ribbon panel discussions and dialogue that included a number of international data privacy commissioners, judges and attorneys. In addition, this event saw the launch of the latest Sedona publication. The Sedona International Overview on E-Discovery, Data Privacy and Disclosure Requirements was released to the Sedona membership and will be available for public comment in July.
To Continue Reading: Click Here
-----------------------------------------------
Source: Metropolitan Corporate Counsel
By: Sean Regan
Cutting Your e-Discovery Costs
One of the biggest beefs companies have with corporate litigation has been the rise in discovery costs, especially as Corporate America has entered the electronic era and creates exponentially more information to search. But many times, it’s the lawyers themselves who make the process more expensive than it needs to be.
That was the message expressed by federal magistrate Judge Robert Collings, who spoke recently at the IQPC Corporate Litigation Exchange. He noted that misunderstandings over e-discovery arise when opposing sides attempt to guess at the scope of a dispute, rather than coming to an agreement and sticking to it. The result, he said, is that parties take their best guesses at what the other side wants—and fail, leading to time-consuming and costly pre-trial hearings and disputes.
A better approach is for lawyers to resolve the issues among themselves and then come to the court with solutions, an approach that would be “embraced by judges,” says Rick Wolf, CEO of legal consulting firm Lexakos.
As Collings pointed out, many magistrates would be more than happy to help settle the scope of a dispute. What really gets under their skin is refereeing each side’s decisions after those choices have been made.
That’s where the growing role of mediators in e-discovery disputes is coming into play, driven in part by 2006 amendments to the Federal Rules of Civil Procedure. Rule 29, in particular, gives opposing sides the leeway to set their own discovery rules, which has given rise to “a whole additional cottage industry of consultants,” says John Watkins of law firm Chorey, Taylor & Feil, and a registered mediator with the Georgia Office of Dispute Resolution.
To Continue Reading: Click Here
-----------------------------------------------
Source: Compliance Week
By: Jaclyn Jaeger
That was the message expressed by federal magistrate Judge Robert Collings, who spoke recently at the IQPC Corporate Litigation Exchange. He noted that misunderstandings over e-discovery arise when opposing sides attempt to guess at the scope of a dispute, rather than coming to an agreement and sticking to it. The result, he said, is that parties take their best guesses at what the other side wants—and fail, leading to time-consuming and costly pre-trial hearings and disputes.
A better approach is for lawyers to resolve the issues among themselves and then come to the court with solutions, an approach that would be “embraced by judges,” says Rick Wolf, CEO of legal consulting firm Lexakos.
As Collings pointed out, many magistrates would be more than happy to help settle the scope of a dispute. What really gets under their skin is refereeing each side’s decisions after those choices have been made.
That’s where the growing role of mediators in e-discovery disputes is coming into play, driven in part by 2006 amendments to the Federal Rules of Civil Procedure. Rule 29, in particular, gives opposing sides the leeway to set their own discovery rules, which has given rise to “a whole additional cottage industry of consultants,” says John Watkins of law firm Chorey, Taylor & Feil, and a registered mediator with the Georgia Office of Dispute Resolution.
To Continue Reading: Click Here
-----------------------------------------------
Source: Compliance Week
By: Jaclyn Jaeger
Monday, June 29, 2009
Don't Let Legacy Media Foil Your Forensic Investigation
When performing incident response and forensics on a compromised system, the focus of analysis is on the most immediately available and relevant sources of evidence. Volatile data collected from a running system, the hard drive, network flow data and logs collected on a central server all serve as useful sources for determining the particulars of the incidents. But what about incidents that go back further requiring you to dig into backup tapes, potentially very old ones?
Fortunately, I've dealt with very few cases where I had to retrieve information from backup tapes, however, none of them have been pretty. The last time was the worst one because the tapes were the best source of evidence thanks to the botched first response by the client's sysadmins. Making matters worse, the client used an expensive and proprietary backup software that only they could use to extract the data for analysis. Oh yeah, and it was brutally slow.
The article, "Computer Forensics - Don't Let the Tape Evidence Escape You," is what started me thinking about tapes and moreover, legacy media and its impact on computer forensic investigations. Unless they've been at it for a very long time, independent forensic investigators unlikely to have an arsenal of legacy tape, magneto-optical, Zip disk and other drives at their beck and call when needed in an investigation. They either have to rely on their client to have the right drives or call a specialty shop that has the right drives to read the data for them--which luckily, those places do exist.
To Continue Reading: Click Here
---------------------------------------------
Source: darkreading.com
By: John Sawyer
Fortunately, I've dealt with very few cases where I had to retrieve information from backup tapes, however, none of them have been pretty. The last time was the worst one because the tapes were the best source of evidence thanks to the botched first response by the client's sysadmins. Making matters worse, the client used an expensive and proprietary backup software that only they could use to extract the data for analysis. Oh yeah, and it was brutally slow.
The article, "Computer Forensics - Don't Let the Tape Evidence Escape You," is what started me thinking about tapes and moreover, legacy media and its impact on computer forensic investigations. Unless they've been at it for a very long time, independent forensic investigators unlikely to have an arsenal of legacy tape, magneto-optical, Zip disk and other drives at their beck and call when needed in an investigation. They either have to rely on their client to have the right drives or call a specialty shop that has the right drives to read the data for them--which luckily, those places do exist.
To Continue Reading: Click Here
---------------------------------------------
Source: darkreading.com
By: John Sawyer
Sunday, June 28, 2009
Why Email Matters – The Science Behind the US Attorney Scandal
Email is more and more in the news these days, is near the center of the current US Attorney firing scandal, and for good reason. A substantial amount of communication flows via email, which can be an efficient form of communicating memos and other intercourse. Email is nearly instantaneous, costs almost nothing, and has in large part replaced the paper memo. Email provides for a path of inquiry that previously was unavailable to investigators for a paper document can be shredded or burned while email leaves a trail even when deleted. Furthermore, unlike a piece of paper, the email itself reveals who sent it and who received it, when and where. As Senator Patrick Leahy says (quoted by Michael Abramowitz on April 14, 2007 in 4 years of Rove e-mails are missing, GOP admits) “You can’t erase e-mails, not today?They’ve gone through too many servers. Those e-mails are there ?? There are primarily three kinds of email in common use. One is the email client program, a genre that includes Microsoft Outlook Express, Mozilla Thunderbird, Macintosh Mail, and Netscape Mail. The second type is the prevalent Microsoft Outlook, a very different program from the same company?s Outlook Express. The third is commonly known as web mail or Internet mail.
Email client programs store data mostly in text form – words people understand, as distinct from cryptic computer language. In general, all of the individual emails in a single mailbox (such as the ?In??or ?Sent??mailboxes) are stored together as a single file.
When mail is deleted, it is truncated from the mailbox file, but its data is not actually removed from the computer at this point. Each file has an entry in an index that is something like a table of contents. When an entire mailbox is deleted, part of its entry the file index is removed, but the actual body of the file does not disappear from the computer. The area on the computer?s hard disk that holds the file gets marked as available to be reused, but the file?s contents may not get overwritten, and hence may be recoverable for some time, if at all.
The computer forensics specialist may then search the ostensibly unused portion of the computer for text that may have been part of an email. The expert can look for names, phrases, places, or actions that might have been mentioned in an email. The email contains internal data that tells where it has been and who it has been to.
For instance, I just sent my wife a 17-word message entitled, ?Where?s this email from???She replied, ?Darling, Surely you must mean, “From where is this email?” Love, Your grammatically correct wife.??- 15 word reply. Yet when I look underneath what is displayed on the screen, I see the email actually contained 246 words. Where did it all come from?
To Continue Reading: Click Here
---------------------------------------------
Source: articlesalad.com
By: Steve Burgess
Email client programs store data mostly in text form – words people understand, as distinct from cryptic computer language. In general, all of the individual emails in a single mailbox (such as the ?In??or ?Sent??mailboxes) are stored together as a single file.
When mail is deleted, it is truncated from the mailbox file, but its data is not actually removed from the computer at this point. Each file has an entry in an index that is something like a table of contents. When an entire mailbox is deleted, part of its entry the file index is removed, but the actual body of the file does not disappear from the computer. The area on the computer?s hard disk that holds the file gets marked as available to be reused, but the file?s contents may not get overwritten, and hence may be recoverable for some time, if at all.
The computer forensics specialist may then search the ostensibly unused portion of the computer for text that may have been part of an email. The expert can look for names, phrases, places, or actions that might have been mentioned in an email. The email contains internal data that tells where it has been and who it has been to.
For instance, I just sent my wife a 17-word message entitled, ?Where?s this email from???She replied, ?Darling, Surely you must mean, “From where is this email?” Love, Your grammatically correct wife.??- 15 word reply. Yet when I look underneath what is displayed on the screen, I see the email actually contained 246 words. Where did it all come from?
To Continue Reading: Click Here
---------------------------------------------
Source: articlesalad.com
By: Steve Burgess
Remote Wrap-Up of LTWC 2009
If you had been looking for me at LegalTech in Los Angeles, I'm afraid I disappointed you. I did not make the trip this year, but I monitored developments at the the show for new products and observed how established products and services renewed themselves. One thing I was quite sure about: The show went on without me.
NON-EDD UPDATES
At the last LegalTech show in New York, I met Ken Lopez of Law Prospector. He educated me on litigation support sales teams and business development teams for law firms. Those niche markets are probably not newsworthy for many of you, but read between the lines. Gone are the days when a legal service sells itself -- if there were ever days like that.
Today, you need to market, market and market your services to obtain and retain clients. And that’s where Law Prospector comes in. It claims a view to the current and future litigation services of thousands of attorneys, hundreds of law firms and thousands of corporate in-house counsel. And now, you can bring that view with you on your BlackBerry, iPhone or Windows Mobile device to get sales leads wherever you go -- with network connectivity, of course.
Deadlines on Demand, a wholly owned subsidiary of CompuLaw, launched a completely redesigned Web site that sports brand-new features to communicate deadlines to clients, customize results and maintain dynamic calendars. The lowdown on the highlights include: automatic Microsoft Outlook integration and synchronization; graphical calendar views by month, week and day; "my cases" tool to manage cases; ability to easily move deadlines and related dates if calendars need adjustment; and automatic integration with time and billing systems.
LegalTech is known for "firsts." In that tradition, Face to Face Live (with LifeSize Communications) debuted "Desktop Pro," an HD videoconferencing system that can be leased for $399 per month per location that incudes all equipment, installation, training and a fully managed service. The system is designed for home or business offices and includes a 22-inch monitor and a LifeSize Express unit with a camera mounted inside. The monitor can be used for HD videoconferencing, as well as a PC interface. Now, if FTFL could have told me the difference between telepresence and HD videoconferencing, I know I missed something at LegalTech.
To Continue Reading: Click Here
---------------------------------------------
Source: law.com
By: Sean Doherty
NON-EDD UPDATES
At the last LegalTech show in New York, I met Ken Lopez of Law Prospector. He educated me on litigation support sales teams and business development teams for law firms. Those niche markets are probably not newsworthy for many of you, but read between the lines. Gone are the days when a legal service sells itself -- if there were ever days like that.
Today, you need to market, market and market your services to obtain and retain clients. And that’s where Law Prospector comes in. It claims a view to the current and future litigation services of thousands of attorneys, hundreds of law firms and thousands of corporate in-house counsel. And now, you can bring that view with you on your BlackBerry, iPhone or Windows Mobile device to get sales leads wherever you go -- with network connectivity, of course.
Deadlines on Demand, a wholly owned subsidiary of CompuLaw, launched a completely redesigned Web site that sports brand-new features to communicate deadlines to clients, customize results and maintain dynamic calendars. The lowdown on the highlights include: automatic Microsoft Outlook integration and synchronization; graphical calendar views by month, week and day; "my cases" tool to manage cases; ability to easily move deadlines and related dates if calendars need adjustment; and automatic integration with time and billing systems.
LegalTech is known for "firsts." In that tradition, Face to Face Live (with LifeSize Communications) debuted "Desktop Pro," an HD videoconferencing system that can be leased for $399 per month per location that incudes all equipment, installation, training and a fully managed service. The system is designed for home or business offices and includes a 22-inch monitor and a LifeSize Express unit with a camera mounted inside. The monitor can be used for HD videoconferencing, as well as a PC interface. Now, if FTFL could have told me the difference between telepresence and HD videoconferencing, I know I missed something at LegalTech.
To Continue Reading: Click Here
---------------------------------------------
Source: law.com
By: Sean Doherty
E-mails can jeopardize your job, the Mark Sanford scandal shows
If ever there was a reminder to be cautious with e-mails, it came this week as romantic missives from South Carolina Gov. Mark Sanford to his Argentine lover surfaced in the national press.
Sanford, a conservative Republican who disappeared for several days to rendezvous with his lover in Argentina, returned to the United States on Wednesday to find out his tryst had been exposed in the media, along with months' worth of steamy electronic exchanges between the couple.
"I could digress and say that you have the ability to give magnificently gentle kisses, or that I love your tan lines or that I love the curves of your hips, the erotic beauty of you holding yourself . . . in the faded glow of night's light," one of Sanford's messages read. "But hey, that would be going into sexual details."
The State, a South Carolina newspaper which first published the correspondence, said it received the e-mails anonymously as early as December of last year. They appeared to come from a personal e-mail account belonging to Sanford rather than a government-related account, according to the paper.
Sanford is now battling for his job as some constituents call for his resignation.
How the anonymous source obtained the e-mails and whether that source violated any laws in doing so isn't clear. What is clear, experts said, is that anyone using e-mail, text messages and other forms of electronic communication that can zip around the globe in seconds should simply assume that the whole world is reading.
To Continue Reading: Click Here
---------------------------------------------
Source: latimes.com
By: Tiffany Hsu
Sanford, a conservative Republican who disappeared for several days to rendezvous with his lover in Argentina, returned to the United States on Wednesday to find out his tryst had been exposed in the media, along with months' worth of steamy electronic exchanges between the couple.
"I could digress and say that you have the ability to give magnificently gentle kisses, or that I love your tan lines or that I love the curves of your hips, the erotic beauty of you holding yourself . . . in the faded glow of night's light," one of Sanford's messages read. "But hey, that would be going into sexual details."
The State, a South Carolina newspaper which first published the correspondence, said it received the e-mails anonymously as early as December of last year. They appeared to come from a personal e-mail account belonging to Sanford rather than a government-related account, according to the paper.
Sanford is now battling for his job as some constituents call for his resignation.
How the anonymous source obtained the e-mails and whether that source violated any laws in doing so isn't clear. What is clear, experts said, is that anyone using e-mail, text messages and other forms of electronic communication that can zip around the globe in seconds should simply assume that the whole world is reading.
To Continue Reading: Click Here
---------------------------------------------
Source: latimes.com
By: Tiffany Hsu
Friday, June 26, 2009
You Get What You Pay For: Court Allows Access to Defendant's Relevant Backup Tapes and Email Archives provided Plaintiff is Willing to Bear the Costs
Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009)
This case arose from plaintiff’s claim that defendant’s product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff’s damages resulting from the condition. In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel. Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.
In response to plaintiff’s discovery requests, defendant objected to searching “archived electron [sic] records” stating that “responsive documents include ‘internal email communications which may be held by [defendant] in disaster recovery back up storage [, which] is not reasonably accessible, and plaintiff is unable to demonstrate the need and relevance that outweigh the costs of retrieving and processing.’” Additionally, throughout the course of litigation, defendant repeatedly assured plaintiff that it was not necessary to conduct “in-depth” discovery of archived materials because “any relevant information could be gleaned through employee depositions and the notebooks that they kept which contained printed versions of any germane materials.” In the course of discovery certain documents were discovered indicating that defendant’s knowledge of the relevant risks of its product may have existed earlier than originally represented by defendant’s employees at deposition. That evidence, combined with “certain purported irregularities in [defendant’s] production of electronic discovery” lead plaintiff to believe that relevant documents existed that had not been produced. Accordingly, plaintiff filed his motion to compel.
The court agreed that the record indicated the existence of responsive documents that had not been produced and noted that the omission of suspected relevant but undisclosed material was “especially glaring” considering defendant’s assurances that any relevant information could be gleaned through employee depositions and other materials. Despite acknowledging the possibility of the existence of additional responsive information, the court indicated the need to limit plaintiff’s relief in light of the questionable likelihood that the information sought would be found in the email archives or on the disaster recovery tapes (and the questionable value of such information in light of the timing of plaintiff’s claim) and the inability to accomplish the requested searches so close in time to trial.
To Continue Reading: Click Here
---------------------------------------------
Source: ediscoverylaw.com
This case arose from plaintiff’s claim that defendant’s product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff’s damages resulting from the condition. In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel. Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.
In response to plaintiff’s discovery requests, defendant objected to searching “archived electron [sic] records” stating that “responsive documents include ‘internal email communications which may be held by [defendant] in disaster recovery back up storage [, which] is not reasonably accessible, and plaintiff is unable to demonstrate the need and relevance that outweigh the costs of retrieving and processing.’” Additionally, throughout the course of litigation, defendant repeatedly assured plaintiff that it was not necessary to conduct “in-depth” discovery of archived materials because “any relevant information could be gleaned through employee depositions and the notebooks that they kept which contained printed versions of any germane materials.” In the course of discovery certain documents were discovered indicating that defendant’s knowledge of the relevant risks of its product may have existed earlier than originally represented by defendant’s employees at deposition. That evidence, combined with “certain purported irregularities in [defendant’s] production of electronic discovery” lead plaintiff to believe that relevant documents existed that had not been produced. Accordingly, plaintiff filed his motion to compel.
The court agreed that the record indicated the existence of responsive documents that had not been produced and noted that the omission of suspected relevant but undisclosed material was “especially glaring” considering defendant’s assurances that any relevant information could be gleaned through employee depositions and other materials. Despite acknowledging the possibility of the existence of additional responsive information, the court indicated the need to limit plaintiff’s relief in light of the questionable likelihood that the information sought would be found in the email archives or on the disaster recovery tapes (and the questionable value of such information in light of the timing of plaintiff’s claim) and the inability to accomplish the requested searches so close in time to trial.
To Continue Reading: Click Here
---------------------------------------------
Source: ediscoverylaw.com
Judge finds Dell Inc. in contempt
A state court judge on Thursday found Dell Inc. in contempt of court, saying the computer company was making a "mockery" of the system with its alleged piecemeal production of documents in a civil lawsuit over New Orleans' crime camera system.
Judge Rosemary Ledet also ordered Texas-based Dell to pay $25,000 in sanctions. Plaintiffs' attorneys had requested nearly $182,000 in fees and expenses.
Dell attorney Phillip Wittmann disputed claims that the company was dragging its feet and playing games in discovery, saying that more than 160,000 pages of documents have been produced, e-mail and other information has been handed over as it's been uncovered and that the company has been acting in good faith.
But Ledet called the company's conduct "unconscionable," after hearing arguments from plaintiffs' attorneys that searches using such keywords as "camera" were not done for e-mail and other documents that may have been sent to or by Dell executives, including Chief Executive Michael Dell.
Plaintiffs' attorney Gladstone Jones said he "wasted my time" in Texas last week for Michael Dell's deposition because of the quality of the records' search.
Ledet ordered a search using specific words and said the sides can discuss how to proceed if the search yields a huge amount of records. She did not order that depositions, like Michael Dell's, be taken again.
Southern Electronics Supply Inc. and Active Solutions LLC sued in 2007, claiming the surveillance system they developed was misappropriated by people within and with ties to the city's technology department. They also allege a conspiracy with Dell to sell the system.
To Continue Reading: Click Here---------------------------------------------
Source: ap.google.com
By: BECKY BOHRER
Investigating Personal Web-Based E-Mail
You are in-house counsel at a public company and you suspect an employee may be leaking inside information. You decide to conduct an internal investigation. A computer forensic analysis reveals that the employee has accessed a personal Web-based e-mail account from a company computer and that the login information (username and password) has been recovered from the computer's memory. Can you log in to that account and read the e-mail?
Unlike an employer's internal e-mail system, which is generally understood to be under the ownership and control of the employer, personal Web-based accounts accessed at work raise new and unsettled questions about an employee's expectations of privacy. A computer that accesses a Web-based account -- such as an e-mail account, social networking Web site or instant messaging service -- merely provides a window into an account that is physically stored elsewhere. Information viewed or created using a company computer may be accessible without logging in to the account by accessing "temporary Internet files" on the company's computer, and is therefore arguably fair game to review. Other information in the account that was not viewed or created from a company computer, however, is likely only accessible by logging in and exploring the Web-based account. How far can you go?
LIABILITY UNDER THE STORED COMMUNICATIONS ACT
A significant risk you face if you exceed your authorized access to an employee's Web-based account is liability under the Stored Communications Act. The SCA creates a criminal offense and civil liability for whoever "intentionally accesses without authorization a facility through which an electronic communication service is provided" or "intentionally exceeds an authorization to access that facility" and by doing so "obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system." 18 U.S.C. §2701. The SCA has been used to prosecute e-mail hackers in the past -- such as the college student who allegedly hacked into Sarah Palin's e-mail account -- and there is also a portion of the statute which creates a private cause of action through which a plaintiff can recover damages, including punitive damages if the violation "is willful or intentional." 18 U.S.C. §2707(c).
To Continue Reading: Click Here
---------------------------------------------
Source: law.com
By: Marjorie J. Peerce and Daniel V. Shapiro
Unlike an employer's internal e-mail system, which is generally understood to be under the ownership and control of the employer, personal Web-based accounts accessed at work raise new and unsettled questions about an employee's expectations of privacy. A computer that accesses a Web-based account -- such as an e-mail account, social networking Web site or instant messaging service -- merely provides a window into an account that is physically stored elsewhere. Information viewed or created using a company computer may be accessible without logging in to the account by accessing "temporary Internet files" on the company's computer, and is therefore arguably fair game to review. Other information in the account that was not viewed or created from a company computer, however, is likely only accessible by logging in and exploring the Web-based account. How far can you go?
LIABILITY UNDER THE STORED COMMUNICATIONS ACT
A significant risk you face if you exceed your authorized access to an employee's Web-based account is liability under the Stored Communications Act. The SCA creates a criminal offense and civil liability for whoever "intentionally accesses without authorization a facility through which an electronic communication service is provided" or "intentionally exceeds an authorization to access that facility" and by doing so "obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system." 18 U.S.C. §2701. The SCA has been used to prosecute e-mail hackers in the past -- such as the college student who allegedly hacked into Sarah Palin's e-mail account -- and there is also a portion of the statute which creates a private cause of action through which a plaintiff can recover damages, including punitive damages if the violation "is willful or intentional." 18 U.S.C. §2707(c).
To Continue Reading: Click Here
---------------------------------------------
Source: law.com
By: Marjorie J. Peerce and Daniel V. Shapiro
Subscribe to:
Posts (Atom)
