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Archive for the ‘email’ Category

Around the Block-November 24, 2010

Posted by rjbiii on November 24, 2010

Around the block is a regular feature of Post Process, providing a brief survey of articles and issues of note affecting law and technology.

EU Flag
The EU “Cookie Rule” will soon go into affect. A Computer World article penned by Stewart Room notes that this entails big changes for ISPs. From the article:

These new rules focus in particular on the dropping of cookies onto our equipment. This will only be lawful if the service provider has the subscriber or user’s consent. In order for consent to be valid, it must be freely given, specific and informed, the benchmarks established by the Data Protection Directive.

The EU’s Article 29 Working Party, which is made up of the national data protection regulators and other officials, issued an opinion on cookies and the consent issue earlier in 2010, observing that the new rules will not be satisfied by default browser settings, bulk consents, web user inactivity or the use of opt-outs.

Criticisms of the rule, which appears to require user consent every time a cookie is to be dropped on a computer, include charges that it isn’t practical, that it (along with other regulations) will stifle e-commerce growth, and that such a “pro-privacy” approach will actually work to diminish the user’s enjoyment of the internet.

Facebook

Facebook May Become a More Frequent Target of Discovery. Facebook’s recent announcement that it will introduce a communication system that could replace email may complicate the lives of us working in electronic discovery. Shannon Green, in her article “Facebook Creates a Mess for EDD: Messages,” notes that the service’s large user-base having these additional tools creates additional burdens and risks for future litigants and employers:

The system has three key components: seamless messaging, a social inbox, and conversation history. Facebook engineer Joel Seligstein blogged, “You decide how you want to talk to your friends: via SMS, chat, e-mail or Messages.” Facemail messages will be clustered by sender instead of by the “antiquated” concept of using a subject line.

So far, so good. But what might be most problematic for employers is that Facebook will preserve these messages — text, chat, or smoke signals — forever.

“It’s definitely a problem in that it means these e-mails will be outside the boundaries of their retention policy,” said Rudy Rouhana, an attorney and director of product marketing at Daegis, a provider of e-discovery services. “So, if they typically delete e-mail every 90 days, 2 years, etc., they will be unable to enforce that on e-mails created in this system,” he said.

Protect your data when traveling internationally. Wired has posted an article in their “How-to” Wiki on protecting your data during border crossings. From the article:

But recently, we’ve seen incidents of computer security experts with ties to WikiLeaks and white hat hackers being stopped by government agents and having their laptops and phones thoroughly inspected.

Unless you work in computer research, or if you have ties to whistleblowers or cybersecurity journalists, the chance is very, very slim that your electronics will be searched. But even if you don’t think you’re up to anything that would arouse the suspicion of the Feds, you should still take precautions. Also, the threat of theft or snooping is something you should pay attention to, no matter how far from home you wander.

Note that these rights extend only to U.S. citizens. Any foreign visitor can be refused entry to the country by border officials on almost any grounds, even if you have a visa.

Posted in Around the Block, Articles, email, International Issues, Privacy | Tagged: | Leave a Comment »

Around the Block for 9/1/10-Technical Articles of Note

Posted by rjbiii on September 1, 2010

On the Mandiant blog, Nick Harbor reflects on the topic of DLL Search Order Hijacking. Using this method, a person can, by placing a DLL file in a directory accessed by the targeted application, execute malicious code. An advisory on the subject, issued by Acros Security, can be found here.

In CSI SQL Server, Jasmin Azemovic discusses collecting evidence from MS SQL Server systems. Most of the article deals with handling and auditing logs, and it’s a nice read.

Attorney and technology consultant Craig Ball weighs in with a discussion of the the mechanics of email communications, in his article, E-Mail Isn’t as Ethereal as You Might Think.

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

Case Blurb: Lebowitz; Authentication of ESI Discussed

Posted by rjbiii on May 17, 2010

The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.

FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.

United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »

(NJ) Employee’s Attorney-Client Privilege not Waived when Communication was made on a Company Computer

Posted by rjbiii on July 17, 2009

Attorneys at Ogletree Deakins post a case summary in which the court, among other things:

…specifically rejected the idea that a company’s ownership of a computer is the sole determinative factor in deciding whether an employee’s personal communications become the company’s property.

The case is: Stengart v. Loving Care Agency, Inc., No. A-3506-08T1 (App. Div., June 26, 2009)

Posted in Articles, email, Privacy, Waiver of Privilege | Leave a Comment »

NJ Case Blurb: Stengart; Privilege waived when message to attorney created on company computer

Posted by rjbiii on April 9, 2009

The question posited is whether communication between an employee and her attorney through a personal, password protected, web-based E-mail account, but made on the employer’s computer, using and over the employer’s server, during business hours, is protected by the attorney client privilege, given employer’s provisions governing use of electronic communications with company issued equipment, resources and time. The Court finds that when an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not protected by such attorney client privilege and are then not to be considered private or personal to any individual employee.

Stengart v. Loving Care Agency, Inc., No. BER-L-858-08 (N.J. Super. Ct. Law Div., March 6, 2009).

Posted in Case Blurbs-NJ, email, NJ, Privilege, State Courts, Waiver of Privilege | Tagged: | Leave a Comment »

Case Blurb: Rhoads Indus.; Keywords and Emails

Posted by rjbiii on December 8, 2008

The advent of electronically stored information (“ESI”) has been widely discussed and has already resulted in amendments to the discovery rules. Keyword and name searches are frequently employed as an initial method to screen and sort documents, but they are not foolproof. For instance, privileged communications frequently creep into e-mail “chains,” but may appear only to some participants in the chain depending on a user’s application of the “reply” and “forward” commands. These issues [invariably] led to at least some of Rhoads’ inadvertent disclosures.

Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

Posted in 3d Circuit, Case Blurbs, E.D. Pa., email, Judge Michael M. Baylson, Key Words, Search Protocols | Leave a Comment »

An Education on ESI and Records Management: Schools need a lesson plan for E-mail

Posted by rjbiii on November 2, 2008

Michael Osteman has posted a story that cites a recent survey showing some interesting numbers:

* 62% of school administrators revealed they do not have a district policy regarding e-mail communications between themselves and teachers.
* 68% of these administrators revealed they do not have a policy regarding e-mail communications between themselves and parents.

And a big one:

The survey also revealed that 90% of schools had not yet created a plan to be in compliance with the new amendments to the Federal Rules of Civil Procedure (FRCP).

Not really all that surprising, but nevertheless, always something of a jolt when see such high numbers in black & white.

Posted in Articles, Data Management, Data Retention Practices, email, Employee Practices | Leave a Comment »

Case Blurb: Thai Heng Chang; Court orders immediate production of e-mail from previously undisclosed account

Posted by rjbiii on September 16, 2008

Post Process: The court granted Plaintiff’s motion to compel, and motion to impose sanctions for inadequate discovery. The court delayed determination of appropriate sanctions until a later date. Below is an excerpt of the opinion, discusses Defendant’s undisclosed yahoo e-mail account.

At issue are [inter alia]: emails from the account edsmith1818@yahoo.com…
Plaintiff contends that it only recently learned of another email account used by the Defendant that should have been identified in response to Interrogatory No. 2, which Plaintiff served upon Defendant on November 6, 2007. Plaintiff contends that Defendant should supplement his document production to include these emails, which it alleges contain highly relevant information crucial to the issues raised in this case.

Specifically, Plaintiff contends that Defendant used this specific email account to engage in the activities upon which this entire lawsuit is based. Defendant represents to Plaintiff and the Court that he cannot produce the emails because they have been destroyed by Yahoo! He offers a copy of a generic response from Yahoo! regarding deactivating accounts, but Plaintiff has attached to its motion a copy of a letter from Defendant’s counsel to Yahoo! regarding a subpoena served in the Georgia case for the hankchang138@yahoo.com account. Nothing in that letter indicates a problem with Yahoo! complying with a subpoena for emails in that account despite Defendant’s assertion that they had been deleted. Perhaps Yahoo! has a process for obtaining emails from deactivated accounts as well. Regardless, the Court does not at this time accept Defendant’s explanation that production of these documents is “impossible,” particularly given the important evidentiary value of these emails and the feeble offering by Defendant in support of his contention. The Court further finds that Defendant’s representation that he was being “completely truthful” when he did not identify this account because he knew it would be impossible to ultimately produce these emails, to be sanctionable. It will figure largely into the sanctions ultimately awarded in this matter if it is learned that Defendant’s failure to identify this account earlier is the cause of the alleged impossibility.

As an initial matter, Defendant shall immediately make all possible efforts to obtain the emails in account edmith1818@yahoo.com and shall then produce all documents in this account without further objection or delay…The Court will not accept Defendant’s position that he cannot produce these emails until assurance is given from an executive at Yahoo! responsible for such tasks that this request is indeed impossible.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *1 (N.D.Fla. Aug. 29, 2008 ).

Posted in 11th Circuit, Case Blurbs, Data Sources, Duty to Disclose, Duty to Produce, email, Magistrate Judge Allan Kornblum, N.D. Fla., Sanctions | Leave a Comment »

Husband’s Hate-filled e-mail costs Wife her Job

Posted by rjbiii on July 16, 2008

We at Post Process have said it over and over again. Employees cannot treat their e-mail accounts at work as their own personal e-mail accounts. In the latest example of obviousness (a word typically associated with patent law), a husband’s death-threat to a Professor of Evolutionary Biology, sent from his wife’s e-mail account at work, has cost his wife her job.

Professor P.Z. Myers, a self-described rabid atheist, wrote several posts expressing disgust over the reaction of Catholics concerning the attempt by a Central Florida student to leave a Communion service with a wafer used for the Eucharist. Mr Myers’s posted, in an article entitled “It’s a Frackin’ Cracker!“:

Here’s a story that will destroy your hopes for a reasonable humanity.

Webster Cook says he smuggled a Eucharist, a small bread wafer that to Catholics symbolic of the Body of Christ after a priest blesses it, out of mass, didn’t eat it as he was supposed to do, but instead walked with it.

This isn’t the stupid part yet. He walked off with a cracker that was put in his mouth, and people in the church fought with him to get it back. It is just a cracker!

Catholics worldwide became furious.

Would you believe this isn’t hyperbole? People around the world are actually extremely angry about this — Webster Cook has been sent death threats over his cracker.

Myers continued:

Wait, what? Holding a cracker hostage is now a hate crime? The murder of Matthew Shephard was a hate crime. The murder of James Byrd Jr. was a hate crime. This is a goddamned cracker. Can you possibly diminish the abuse of real human beings any further?

The post drew angry reactions from Catholics, and presumably followers of other religions. Many of these called for Myer’s employer, the University of Minnesota, Morris, to remove Myers from his post. Bill Donohue, President of the Catholic League, released a statement:
Catholic League president Bill Donohue responded as follows:

“The Myers blog can be accessed from the university’s website. The university has a policy statement on this issue which says that the ‘Contents of all electronic pages must be consistent with University of Minnesota policies, local, state and federal laws.’ One of the school’s policies, ‘Code of Conduct,’ says that ‘When dealing with others,’ faculty et al. must be ‘respectful, fair and civil.’ Accordingly, we are contacting the President and the Board of Regents to see what they are going to do about this matter. Because the university is a state institution, we are also contacting the Minnesota legislature.”

Some emails threatened Myer’s safety. In response, Professor Myers began to post the entire content (including e-mail header information) of the most egregious of the lot, including this one:

From: mkroll@1800FLOWERS.com
Subject: your short life
Date: July 13, 2008 8:07:31 AM CDT
To: myersp@morris.umn.edu
Delivered-To: pzmyers@gmail.com
Received: by 10.100.126.5 with SMTP id y5cs262374anc; Sun, 13 Jul 2008 06:08:03 -0700 (PDT)
Received: by 10.65.237.15 with SMTP id o15mr14501258qbr.56.1215954482483; Sun, 13 Jul 2008 06:08:02 -0700 (PDT)
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Received: from 1800flowers.int (mail2.800-flowers.net [205.153.87.31]) by mtain-a.tc.umn.edu (UMN smtpd) with ESMTP for ; Sun, 13 Jul 2008 08:08:01 -0500 (CDT)
Received: from ([10.180.1.74]) by CPNYMAIL02.1800flowers.int with ESMTP id 5202711.34123806; Sun, 13 Jul 2008 09:07:31 -0400
Return-Path:
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Authentication-Results: mx.google.com; spf=neutral (google.com: 134.84.119.205 is neither permitted nor denied by best guess record for domain of mkroll@1800flowers.com) smtp.mail=mkroll@1800flowers.com
X-Umn-Remote-Mta: [N] mail2.800-flowers.net [205.153.87.31] #+HN+NR+OF (I,-)
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Thread-Topic: your short life
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Content-Type: multipart/alternative; boundary=”—-_=_NextPart_001_01C8E4E9.68CD4469″

Paul,

what I would like to know is how did you even
get a job at a collage.

when you are obviously a moron.
How would you feel if nice folks starting ranting against
Fags, and atheist like yourself.

well sir, you don’t get to blaspheme and walk away from this.
You have two choices my fucked up friend, first you can quit your job for the good of the
children. Or you can get your brains beat in.

I give you till the first of the month, get that resignation in cunt

This e-mail, including attachments, may include confidential and/or
proprietary information, and may be used only by the person or
entity to which it is addressed. If the reader of this e-mail is
not the intended recipient or his or her authorized agent, the
reader is hereby notified that any dissemination, distribution or
copying of this e-mail is prohibited. If you have received this
e-mail in error, please notify the sender by replying to this
message and delete this e-mail immediately.

Hmmm. Not too smart, eh? The header with the company name, and the footer with the disclaimer add a kind of surrealistic edge to the situation. Of course, if I’m the company from whence the message originated, I’m probably not too happy about this. Indeed, 1-800-Flowers, was not amused:

An employee of 1-800-Flowers.com has been fired after an e-mailed death threat was linked to her account.
The crudely worded e-mail was sent Sunday to Paul “PZ” Myers, an associate professor of biology at the University of Minnesota Morris, who is known for his criticism of religion and creationism. It was one of several hostile messages he had received following a controversial July 8 blog posting. The address on the e-mail showed that it came from Melanie Kroll at 1-800-Flowers.com, an online floral delivery service.

The final twist here, is that Mrs. Kroll evidently didn’t send the message at all. Her husband confessed to doing it:

The fact is, that this email to the so called professor, was sent by an angry male catholic, who was very upset after reading that some crazed person in a position of responsibility, charged with teaching children biology, had been encouraging people to steal and desecrate the body of CHRIST, which for Catholics is represented by the Eucharist.

I know this to be true, since I wrote the original email to this so called teacher.

Was the tone of the letter terse, and did I say I would beat his brains in, yes I did.

I wrote this in the same way one does when saying “I’ll beat your ass”, “or kick I’ll kick your butt”
or other such niceties used by members of the unpolished masses, such as myself.

Of course, death threats are no laughing matter, and this one seems to have been an empty one. For some reason, people seem to forget that much of their online activities can be tracked. In this case of course, Mr. Kroll may not so much have “forgotten,” it, but was more likely completely unaware of it. Mrs. Kroll said in one of these articles that her browser launched directly to her job’s e-mail account, meaning the couple may have used the account for all of their personal on-line correspondence. Not a good idea, ever, but especially when one intends to threaten the safety of another.

Posted in Articles, email, Employee Practices | Leave a Comment »

ISPs Beginning to Win Battles over Subpoenas for Emails

Posted by rjbiii on July 3, 2008

The next time you want to subpoena an ISP for your or your opponents emails, you might want to stop and think about it, because, according to an article from the National Law Journal, you might not get what you want:

Civil litigants are increasingly trying to get their hands on e-mails to prove their cases, but Internet service providers are starting to challenge their subpoenas — and courts are starting to rule in their favor.
[…]
For years, courts just assumed that e-mail was discoverable and viewable, and it looks to me like courts are changing direction and questioning that position,” said Ted Claypoole of the Charlotte, N.C., office of Womble Carlyle Sandridge & Rice, who represents ISPs.
[…]
While not exactly a clear-cut rule, ISPs received a boost recently from the U.S. District Court for the Eastern District of Virginia, which denied a State Farm Mutual Automobile Insurance Co. subpoena asking AOL to disclose various e-mails tied to an insurance claim.

A positive development, I think. The article sites the Stored Communications Act and recent case law as helpful elements in the legal arsenals of ISPs.

Posted in Articles, Duty to Produce, email, Stored Communications Act, Trends | Tagged: | Leave a Comment »