Post Process

Everything to do with E-discovery & ESI

Around the Block: Jan. 7, 2010

Posted by rjbiii on January 7, 2010

A look at some interesting recent articles and posts about law and technology:

New York case law on litigation holds is discussed by Attorney Mark Berman. From the article:

It is well established that the “utter failure to establish any form of litigation hold at the outset of litigation is grossly negligent.” A showing of gross negligence is “plainly enough to justify sanctions at least as serious as an adverse inference.”

BUT…

On the other hand, not every matter is ripe for e-discovery, and the decision in Kaiser v. Raoul’s Rest. Corp.,is illustrative of the fact that one still needs to sufficiently justify a request for e-discovery, and that overbroad demands will not be countenanced.

The Fulton County Daily Reporter posts the news that a Georgia Judge has voluntarily stepped down, apparently because of an investigation into his relationship with a defendant that began on Facebook. From the article:

Woods’ departure from the bench effectively ends inquiries being made in the circuit from the Georgia Judicial Qualifications Commission, which investigates complaints against judges. The JQC, whose workings are confidential by law, has made no public statement of any investigation regarding Woods.

From Ryley, Carlock, and Applewhite:

In Vagenos v. LDG Financial Services, LLC, 2009 U.S. Dist. Lexis 121490 (E.D.N.Y. Dec. 31, 2009), District Court Judge Brian M. Cogan denied defendant’s in limine motion to preclude plaintiff from offering at trial an alleged duplicate recording of an electronically-stored telephone message, but ordered an adverse inference instruction for plaintiff and his counsel’s failure to preserve the message.

From Law Technology News, an article examining how to Mine Web 2.0 for Evidence:

On Oct. 17, 2009, an armed assailant robbed two men outside a housing project in Brooklyn, N.Y. Almost immediately, the police focused their investigation on Rodney Bradford, a 19-year-old resident of the housing project who had been indicted a year earlier for a similar robbery. After one of the victims positively identified Bradford in a police lineup, the police arrested him and charged him with first-degree robbery.

Open-and-shut case, right? Wrong. It turns out Bradford was innocent and he had an airtight alibi to prove it. At the time of the crime, he was 12 miles away at his father’s house in Harlem, updating his Facebook status. After the district attorney subpoenaed Facebook and received the exculpatory evidence, Bradford was cleared of all charges and released.

Computerworld contributor Richard Power discusses how the Information Age has transformed the world the of the Private Investigator, with a Q&A with former FBI Agent (and current PI) Ed Stroz:

Stroz had served for 16 distinguished years in the US Federal Bureau of Investigation (FBI), during which he established the New York City FBI computer crime squad, one of the first two in the country, and directed several significant FBI investigations, including the high-profile international case of Vladimir Levin, a Russian hacker who broke into Citibank. In 2000, Stroz founded a private investigation (PI) firm in 2000, and has assisted his corporate clients in responding to Internet-extortions, denial-of-service (DoS) attacks, hacks and unauthorized access, and theft of trade secrets. He has also pioneered the concept of incorporating behavioral science into the methodology for addressing computer crime and abuse.

Marica Coyle posts an article for the National Law Journal noting that the Supreme Court will hear a case to resolve a circuit split concerning the work-product doctrine.

Textron Inc. v. U.S. stems from a long-running legal battle between the corporation and the Internal Revenue Service over the government’s demand for Textron’s tax-accrual work papers. Those papers generally are prepared with the assistance of in-house and external counsel and relied upon by independent auditors to determine the accuracy of financial statements. They often contain legal analyses and evaluations of potential litigation risks associated with particular tax transactions.

Last August, the 1st U.S. Circuit Court of Appeals, in a 3-2 en banc ruling, held that the papers were not protected by the work-product doctrine and had to be turned over to the IRS in a tax shelter investigation.

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