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Everything to do with E-discovery & ESI

Archive for January, 2010

Around the Block: Jan. 30, 2010

Posted by rjbiii on January 30, 2010

Articles and items of interest to the ediscovery community.

Bow-Tie Law guest blogger examines load files in the article Load Files and Then Some. From the article:

Load files are usually simple text files (some are a bit more complex). Meaning they can be opened and viewed with Notepad or WordPad in Windows. To the uninitiated they may look daunting but after seeing a few they begin to look the same.

Judge James Kimbler, a municipal judge in Ohio, posts an article in his blog discussing the propriety and intrusiveness of forensics imaging in civil cases. Quoth His Honor:

Consistent with the old saying that “pigs get fed and hogs get slaughtered,” the decisions [discussed here] make clear that automatic and broad requests for forensic imaging are not the best way to obtain such data. Rather, a party should lay the necessary groundwork for such a request either through pre-suit investigation or other discovery and narrowly tailor the request to avoid “fishing expedition” and privilege objections.

Practical E-Discovery is one of the many taking a look at Judge Scheindlin’s recent decision in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities. It’s an interesting take on degrees of unacceptable conduct during electronic discovery:

In Judge Scheindlin’s view, once conduct is found unacceptable “the only question is how bad is the conduct.” While acknowledging that the terms negligence and gross negligence have no generally accepted meaning in a discovery context, Judge Scheindlin notes they “describe a continuum.” As an abstract principle she is right, but given the endless varieties of information systems and document retention practices, these concepts are context specific and generalizations should be avoided. Judge Scheindlin recognizes these points when she writes: “while it would be helpful to develop a list of relevant criteria a court should review in evaluating discovery conduct, these inquiries are inherently fact intensive and must be reviewed case by case.”

The Economist posts an article on Leadership in the Information Age. From the article:

In [the current] environment, traditional management is impossible, or at least ill-advised. The hierarchical, layered corporate structures in which company information was carefully managed and then selectively passed down the line have crumbled. The online era has made command-and-control management as dead as dial-up internet.

Posted in Articles | Leave a Comment »

Three Reasons Why Attorneys “don’t get” Electronic Discovery

Posted by rjbiii on January 29, 2010

I came across this article on the eDiscovery 101 blog (which is also new to me). They list Post Process as a resource for learning more about EDD. We thank them. Now we’re featuring them right back. That’ll teach them.

Posted in Articles, Industry News | Tagged: | Leave a Comment »

Case Summary: AccessData; Effects of German Blocking Statute on Discovery Obligations

Posted by rjbiii on January 27, 2010

AccessData Corp. v. ALSTE Techs. GMBH, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010).

Background: In May, 2005, AccessData and ALSTE Technologies GmbH (“ALSTE”) entered into a contract allowing ALSTE to resell to their customers. Since executing the agreement, ALSTE has sold “hundreds, if not thousands” of AccessData’s products. AccessData sued ALSTE for breach of contract, alleging that over $79,000 in invoices had not been paid for its FTK toolkit 2.0 software. While ALSTE admits that it hasn’t paid the invoices in question, it asserts that it shouldn’t be made to, as the software is defective. ALSTE also filed a counterclaim for the breach of a technical support agreement requiring AccessData to pay ALSTE $2,000 to $4,000 per month to cover technical support for users of AccessData’s products in Germany who were not also customers of ALSTE.

Procedural History: AccessData made requests to ALSTE for the production of documents containing information on customer complaints and any resulting injury suffered by ALSTE. AccessData also propounded interrogatories asking ALSTE to provide information and document regarding any technical support it provided non-customers under the Technical Support Agreement. ALSTE objected to the interrogatories and production requests, contending they were: 1) overly broad, unduly burdensome, and sought irrelevant information, and 2) the disclosure of information relating to third parties identities would violate German law. Access then filed the motion to compel on which the court rules in this opinion.

Discussion: The court stated that ALSTE assertion that providing personal information about its customers and their employees “would be a huge breach of fundamental privacy laws in Germany,” was not backed up by reference to any specific rule or law. ALSTE failed to cite any provision of the German Data Protection Act (GDPA) or German Constitution to back-up its claim. The court then noted that I, Section 4c of the GDPA, entitled “Derogations,” allows for the transfer of personal information to countries without the same level of data protection if the data subject gives his or her consent, or the transfer is necessary or legally required for the establishment, exercise, or defense of legal claims. The court wrote that ALSTE had not described any difficulties in obtaining consent, or explained why the provisions would not apply to this case.

Even in the event that ALSTE had overcome those challenges, the court stated that it disagreed with ALSTE’s assertion that the court must comply with the Hague Convention’s rules governing disclosure of evidence to courts in foreign countries. Citing Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 544, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987), the court noted that the law in the U.S. was: “It is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”

The Supreme Court referenced the American Law Institute summary of the interplay between blocking statutes and discovery orders generally:

“[W]hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the basis of the best information available . . . . [Blocking] statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States.”

Ultimately, the court decided on this issue to overrule the objections to the discovery request and required ALSTE to search through their data repositories and produce the requested data.

Posted in 10th Circuit, Blocking Statutes, Case Summary, D. Utah, Discovery Requests, Duty to Disclose, Duty to Preserve, Duty to Produce, Hague Convention, International Issues, Magistrate Judge Paul M. Warner | Leave a Comment »

Around the Block: 1/25/2010

Posted by rjbiii on January 25, 2010

Interesting Items floating around the blogs and the Tweetdeck:

Bow Tie Law asks the Question: To DeNIST or not To DeNIST?, while writing an article that explains the process, and benefits, of DeNISTing. There really is no question here as to whether one should do it (absent exceptional circumstances). The real question is what more should one do besides DeNISTing to remove “junk” files. A good article, though not one that threatens Shakespeare’s position in English Literature. From the article:

“Can’t you just DeNIST the data and get rid of all the junk files…?” This is a question I am often asked. It usually comes after an individual attends an eDiscovery conference and the magical phrase “DeNIST” was uttered at some point. The individual is led to believe, or rather wants to believe, it’s a supernatural process that separates all the wheat from the chaff. Well, that’s only half the story…

The DOJ releases a guide to search and seizure of computer equipment. Potential consumers may order a bound version of the guide, or download an electronic copy. From the website:

Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responder is a quick reference for first responders who may be responsible for identifying, preserving, collecting and securing evidence at an electronic crime scene. It describes different types of electronic devices and the potential evidence they may hold, and provides an overview of how to secure, evaluate and document the scene. It describes how to collect, package and transport digital evidence and lists of potential sources of digital evidence for 14 crime categories.

Philadelphia attorney Stanley P. Jaskiewicz pens a post about The Law of Unintended Consequences, and how courts use it. From the article:
[The law of unintended consequences] is certainly not new. Even so, the widely cited mocking definition of a “computer” as “a device designed to speed and automate errors” shows how well this concept is suited to the Digital Age. Certainly, examples of technology projects gone horribly awry are common in the public and private sectors, with ramifications far worse than the situations they were intended to fix. Hershey’s software upgrade that caused the candy producer to miss a Halloween season, for example, or Virginia’s infamous temporary inability to issue driver’s licenses are perhaps two of the best-known fiascos (or at least those that were not hushed up by confidential settlements). Domino’s Pizza even resorted to creating its own online ordering system after a third-party application “became a real source of pushback” from disgruntled franchisees, according to Domino’s CIO.

Paralegal Jemerra J. Cherry posts an article examining methods of online researching to help determine settlement and jury verdict amounts in cases similar to yours:

No matter what type of law you practice, researching jury verdicts and settlements is an important part of any case. How would you know a plaintiff’s demand is over the top if you didn’t research it? Don’t wait until your case has been active for a year to start researching. Early case assessment is helpful when going to mediations, arbitrations or when having a meeting with your client. Plaintiffs utilize verdict research to outline and support a demand. On the flip side, defendants use verdict research to state why a plaintiff’s demand is unreasonably high. In order to properly evaluate your case, verdict and settlement research is key.

Posted in Articles, Best Practices, Data Manipulation | Leave a Comment »

Case Summary: Bensel; Tests for Spoliation and Imposition of Sanctions

Posted by rjbiii on January 24, 2010

Bensel v. Allied Pilots Assoc., 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009)

Background: Plaintiffs, former members of the Allied Pilots Association (ALPA), sued the association, alleging breach of duty of representation of its members.

Procedural History: Plaintiffs accuse Defendant Association of intentionally or recklessly destroyed documents, emails and other communication well into the discovery period for this lawsuit.

Discussion: The court begins by defining spoliation as: “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” The court noted that when relevant documents are lost or destroyed “the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.” The court qualified that statement by adding that there must be a finding that the spoliation was intentional and that there was fraud and a desire to suppress the truth before the Court will make a finding of spoliation. The court then articulated the following test for a finding of spoliation.

Generally, to determine spoliation of evidence, four factors must be found:
(1) the evidence in question must be within the party’s control;
(2) it must appear that there has been actual suppression or withholding of the evidence;
(3) the evidence destroyed or withheld was relevant to claims or defenses; and
(4) it was reasonably foreseeable that the evidence would later be discoverable.

The court added that the duty to preserve relevant documents could attach even prior to litigation, although a party is certainly not required to retain every document in its possession. The court then stated the Third Circuit’s test for the imposition of sanctions for spoliation:

(1) the degree of fault of the party who altered or destroyed the evidence;
(2) the degree of prejudice suffered by the opposing party; and
(3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

The court then opined that in the first standard, that for finding spoliation, the second the element appeared to require bad faith. It then decided that the first prong of the test for sanction required bad faith as well.

The court noted that Defendant had only grudgingly complied with its discovery obligations, and recited examples suggesting that there was strong evidence that Defendants had failed to preserve evidence. However, the court also stated that Plaintiffs had not pointed to any evidence of bad faith, and relied only on speculation to explain the deletion of email by Defendants.

The court also wrote that Plaintiffs made vague statements, such as: “ALPA’s spoliation was so widespread and covered such a long period of time it can only be concluded that substantial evidence was destroyed which would have been favorable to Plaintiffs.” Such a catch-all statement, along with vague speculation as to whether evidence has been destroyed or even whether evidence was relevant does not rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation. While Defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data, the Court saw no evidence of bad faith. The court, therefore, denied the motion for sanctions at this time.

Posted in 3d Circuit, Bad Faith, Case Summary, D.N.J., Judge Joseph E. Irenas, Sanctions, Spoliation | Leave a Comment »

MS Bing to erase user data after six months…

Posted by rjbiii on January 20, 2010

Evidently doing so in an effort to appease EU regulators.

Posted in Articles, Privacy | Tagged: , | Leave a Comment »

Computer Forensics Used in a Texas Murder Case

Posted by rjbiii on January 20, 2010

The Washington Post brings us the story:

WACO, Texas — In the month before his wife died, a minister in Texas tried to buy a prescription sleeping aid online and conducted an Internet search for “overdose on sleeping pills,” computer experts testified Thursday in his murder trial.

Neal Kersh, a computer forensics examiner, testified that he examined data from Matt Baker’s church-owned laptop and was able to retrieve information from a computer server at a youth center where Baker worked. Baker’s computer went missing two months after Kari’s death.

Kersh said Baker sent e-mails just before and after those 2006 Internet searches and site visits, indicating he – not anyone else – was at the computer looking at the pharmaceutical sites and online pharmacies.

Posted in Articles, Computer Forensics | Leave a Comment »

DIY Cybercrime Kits Cause Surge in Phishing Attacks

Posted by rjbiii on January 20, 2010

USA Today posts the news on that an increase in phishing attacks has been driven by cheap, easy-to-use cybercrime kits:

DIY kits have been a staple in the cyberunderground for some time. But now they’ve dropped in price and become more user-friendly.

“If you know how to download music or a movie you have the necessary experience to begin using one of these kits,” says Gunter Ollman, senior researcher at security firm Damballa.

Indeed, newbie cybercrooks and veterans alike are using DIY kits to carry out phishing campaigns at an accelerated rate, security researchers say. They’ve been blasting out fake e-mail messages crafted to look like official notices from UPS (UPS), FedEx (FDX) or the IRS; or account updates from Vonage, Facebook or Microsoft Outlook (MSFT); or medical alerts about the H1N1 flu virus.

Posted in Articles, Computer Security, Technology, Trends | Leave a Comment »

Case Summary: Return Path Inc.; Court Examines Taxation of EDD Costs to Losing Plaintiff in Patent Case

Posted by rjbiii on January 19, 2010

CBT Flint Partners, LLC v. Return Path, Inc., 2009 U.S. Dist. LEXIS 121188 (N.D. Ga. Dec. 30, 2009)

CBT Flint Partners (“CBT”) sued Return Path, Inc. (“Return Path”) and Cisco IronPort Systems LLC, (“Cisco IronPort”) alleging that the Defendants’ Bonded Sender Program infringed CBT’s two patents.

The Bonded Sender Program allows a sender of an email to place its IP address on a publicly available list of trusted senders that is used in connection with email filtering. When a sender applies to be in the Bonded Sender Program, a third party determines whether the applicant is a good user of email. If accepted, the sender posts a bond, and its IP addresses are included on the Bonded Sender list. Emails from IP addresses on the Bonded Sender list are not filtered as spam.

Plaintiff contested the imposition of certain costs, including e-discovery costs, to Plaintiff and its counsel after Defendants were granted summary judgment.

The court noted grumpily that CBT was vigorous in their objections to being taxed for any of their adversaries’ various costs:

CBT filed thirty-five pages of briefing objecting to something in every category of Cisco IronPort’s bill of costs. In order to accomplish this feat, CBT objects to a $ 146.82 fee for an unsuccessful attempt to serve a subpoena. The Plaintiff’s briefing of this objection consists of 1 full page. The Defendant’s response to this objection consists of 2 pages of briefing plus 2 exhibits. What an incredible waste of time! The Plaintiff’s objection to taxing the first unsuccessful attempt to serve Gardner Groff is overruled.

The court then moved to the objection specific to electronic discovery:

The Plaintiff objects to $ 243,453.02 in fees for Cisco IronPort’s e-discovery vendor, Gallivan Gallivan O’Melia. The Plaintiff says that: “IronPort retained a computer consultant to collect, search, identify and help produce electronic documents from IronPort’s network files and hard drives in response to CBT’s discovery requests.” FN1 This appears to be a fair characterization of the services provided by the firm. CBT objects that fees associated with collecting documents for production are not taxable under 28 U.S.C. § 1920. This is a serious objection which deserves careful and deliberate consideration by the Court.

FN1: Cisco IronPort describes the services of the e-discovery consultant as follows: “GGO conducted highly specialized technical tasks to acquire, process, preserve, and track the voluminous amount of electronic data that CBT requested in discovery. As further described in GGO’s invoices, attached at Exhibit B, these acquisition and processing activities included forensically sound preservation of custodian computers; extraction of documents from multiple operating systems, corporate servers, and network shares while preserving meta-data; cataloging, extracting e-mail and attachments, and processing; compilation of keyword and meta-data indices for analysis and reporting as requested by the plaintiff; auditing and logging of files and ensuring compliance with Federal Rules; decryption and extraction of proprietary data; triage and advanced processing of files with errors; statistical and keyword analysis with related reporting; and compilation of native file production and load files to provide usable documents to plaintiff.”

The court acknowledged that opinion was split as to whether these types costs were recoverable under 28 U.S.C. § 1920. Some courts have allowed them, considering them the modern equivalent of “exemplification and copies.” Others have not allowed them, reasoning that assembling records for production is ordinarily a task done by attorneys and paralegals and is not a recoverable cost.

The court, while quoting Cargill Inc. v. Progressive Dairy Solutions, decided in favor of allowing the costs to be recovered, shifting them to the plaintiff.

CBT requested, and Cisco IronPort produced, a massive quantity of data. In response to the Court’s Scheduling Order, the parties agreed that document production would be made in electronic format. Cisco IronPort has asserted — without contradiction — that production in paper form of the 1.4 million documents plus 6 versions of source code would have cost far more than the fees sought for the e-discovery consultant. A careful review of the GGO invoices reveals that the services provided are not the type of services that attorneys or paralegals are trained for or are capable of providing. The services are highly technical. They are the 21st Century equivalent of making copies. See Cargill Inc. v. Progressive Dairy Solutions, Inc., No. CV-F-07-0349, 2008 U.S. Dist. LEXIS 101983, 2008 WL 5135826, at *6 (E.D. Cal. 2008) (“Progressive provides an explanation of the invoice-case management was done electronically because of the volume of documents; scanning of documents was necessary to provide an adequate defense to the several motions and trial presentation. Accordingly, this cost [] is recoverable.”). The services are certainly necessary in the electronic age. The enormous burden and expense of electronic discovery are well known. Taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery. The objection to taxation as costs of the e-discovery consultant’s fees is overruled and denied. Cisco IronPort has revised its bill of costs in response to many of the Plaintiff’s other objections. The remaining objections are overruled and denied for the reasons given by Cisco IronPort in its response to the motion.

Posted in 11th Circuit, Case Blurbs, Cost of Discovery, Judge Thomas W. Thrash Jr., N.D. Ga. | Leave a Comment »

End Game: Ending Legal Holds

Posted by rjbiii on January 19, 2010

While figuring out what events trigger legal holds can sometimes be an ambiguous matter, terminating them can be be even more perplexing. John Jablonski discusses the issues involved in his article, End Game. From the article:

Ending a legal hold (sometimes known as releasing, lifting, or removing the legal hold) is a valuable and necessary last step in the legal hold lifecycle. It is an essential part of a defensible legal hold business process. Guideline 11 to the Sedona Conference’s Commentary on Legal Holds (2007) states: “The legal hold process should include provisions for release of the hold upon the termination of the matter at issue.” There are important benefits associated with bringing a legal hold to an effective and timely end.

Posted in Articles, Litigation Hold | Tagged: | Leave a Comment »