The Problem of Reviewing Electronic Data

In a recent post on the Security Blog of ComputerWorld, a corporate security manager (i.e. an individual on the IT side of the aisle) lamented about the data retention policies at his company. Pointing out that much more data is currently being retained electronically than what is mandated by law, he noted the tremendous manpower that might be required to search through the vast amounts of this data if the need ever arose. As an alternative to the problem of over-retention the blogger (whose real identity was "disguised for obvious reasons") suggested a turning back of the technological clock, keeping paper records and turning the lawyers loose to sift through piles of paperwork.

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It's Settled - via Email

Be wary of your electronic communications regarding settlement -- they may bind you to an agreement.  That's the basis of the ruling in Basis Technology Corp. vs. Amazon.com Inc., 2006-P-1048.  The Jan. 7 decision serves as a reminder to lawyers that e-mail settlements carry the same weight as deals on paper.

Citing the trial judge's decision to terminate the trial instead of suspending it for exploratory negotiations, Associate Justice Mitchell J. Sikora Jr. rejected Amazon's argument of characterizing the e-mail exchange as a "framework" causing the "suspen[sion]" of the trial and forming a "starting point" toward a "final settlement."

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Metadata in digital photographs

I recently handled a case where opposing counsel repeatedly emailed to me photographs purportedly evidencing her client's factual assertions.  Naturally, my clients and I had troubling questions regarding, among other things, (1) whether all of the photographs were taken on the same date at roughly the same time, (2) the source of the photographs, and (3) whether the photographs had been altered.  In the future, there may be a way to obtain that information from the photographs themselves, although, unfortunately, that information may have limited reliability.

A blog called "Out of the Box Lawyering" has a very interesting and useful recent post about a Microsoft program called Photo Info that potentially enables you to obtain from the digital version of a photograph data such as:

  • the time and date the photograph was taken;
  • the model of the camera with which the photograph was taken;
  • technical information that could bear on whether the photograph was altered;
  • other information relating to the "author" of the photo.

Although this tool has interesting ediscovery implications, the fact that the program itself allows people to change or augment that very metadata likely limits the evidentiary value of that metadata. 

Does Your Litigation Expert "Write-Over?"

If you are not already asking this question of your consulting or testifying expert, you should start.  And the answer in every case should be "no."  Many people, including experts, make revisions into an original draft document, thereby "writing over" the initial draft.  Once a draft has been written  over, the electronic version of the initial draft has effectively been destroyed.  However, electronic preservation rules apply to draft expert reports and communications, and attorneys have an ethical duty to ensure that these electronic documents are not destroyed.   

                                                                         

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Sometimes It Pays To Be In The Minority. . .

When it comes to electronic discovery, that is. A recent survey cited in a New York Law Journal article indicates that many corporate counsel lack preparation for e-discovery issues in litigation.

In a survey by e-discovery consultant Lexakos, almost 55% of those surveyed said their companies needed to spend more time developing e-discovery and litigation readiness plans. Another 52% said they needed to improve their litigation hold procedures. If you are in the 45% and 48% minorities that are already prepared for e-discovery, pat yourself on the back and go on about your day. If you are not, read on.

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Recent Surveys Illustrate Complexity of E-Discovery Compliance for U.S. Companies

The challenge of complying with e-discovery rules was illustrated in the results of two surveys released recently. A survey from Robert Half Legal, (a company specializing in attorney recruitment and placement) found that one in four lawyers in North America believe that e-discovery will have the single largest impact on the practice of law in the next five years. Why? According to Charles Volkert, Executive Director of Robert Half Legal, "the complexity and cost of the task, coupled with the associated information technology and human resource needs, make [e-discovery] a challenge."

Similarly, a survey published in eWeek.com  found that two-thirds of U.S. businesses are generally ignoring the issue of e-discovery.  According to the survey's author Michael Osterman, the companies, "are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements."

The results of these two surveys, at first glance appear somewhat contradictory. Are the majority of companies really ignoring the legal issue expected to have the largest impact in the near future? However, both surveys seem to point to the same problem, a lack of clarity in many companies on how to effectively and efficiently comply with e-discovery rules. 

The survey conducted by Robert Half indicates that e-discovery is expected to have such a large impact because of the complexity and expense of compliance. Likewise, in discussing the results of the survey in eWeek, Michael Osterman, stated that many companies are still unclear on the concept of e-discovery in general. "There really is no consensus yet on whether a company should keep all its e-mail and other docs, or whether a company should keep a finite number of years' worth of data, or whether it should keep more than 30 days' worth of data."

Time will tell whether e-discovery will be the largest issue facing the practice of law in the U.S. However, the actual impact will likely largely be effected by the current corporate response to e-discovery rules.

Sanctions Imposed for "Monumental Discovery Violation"

A California federal court judge sanctioned wireless chip developer Qualcomm Inc. and six of its outside lawyers on January 7, 2008 for what the judge labeled a "monumental discovery violation" in connection with Qualcomm's failure to turn over electronically-stored information.  One of Qualcomm's central arguments in patent litigation against Broadcom Corp. rested on Qualcomm's position that prior to September 2003 it had not been involved in working on a committee tasked with creating a video coding standard. 

The fly in the ointment was 46,000 emails (totaling over 300,000 pages) showing that Qualcomm had, in fact, been involved with the committee as early as August, 2002.  What to do? 

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Employer Policy Regarding Email for Personal Use Trumps Attorney-Client Privilege

 A recent New York appellate court decision offers some guidance on the interplay among an employer's right to monitor email traffic, an employee's expectation of privacy in their email and the attorney-client privilege.  In a decision by the Supreme Court for New York County, the Plaintiff, Dr. Scott, was fired by Beth Israel Medical Center and sued for $14 million in severance payments.  Dr. Scott got a bit ahead of himself, though, and sent several emails about the impending suit to his lawyers while still employed by the hospital, using his work email account and a hospital computer.  When the hospital informed his attorneys that it had the emails, Dr. Scott moved for a protective order preventing their use in litigation.

The question, then, was what took precedence, the attorney-client and work product privileges, or the hospital's email policy, which provided that the hospital's email system was not for personal use and that the hospital reserved the right to access emails at any time.

The court found that "A 'no personal use' policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of privacy," and the combined effect "is to have the employer looking over your shoulder every time you send an e-mail."  Thus, the court held that the emails were not protected, and were properly discoverable in litigation.  The full decision appears here: Scott v. Beth Israel Medical Center.

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Discovered ... by Accident (and, yes, it's discoverable)

In the web world, we are all familiar with various search engines that are indispensable in locating information. However, these same search engines could also be potential pitfalls for exposing discoverable content.

Search engines (eg. Google) are essentially "crawlers" that browse and index all the webpages and files that are posted to the Internet, past and present. So what happens if a firm posts information on the web but later wants to block it from public view? Enter Robots.txt.

Simply put, Robots.txt is a text file put on a webserver hosted by a website for the purpose of controlling which pages can be indexed by a "well-behaved" crawler (or robot-- Google's crawler is coincidentally named Googlebot).

However, there are two ways for crawlers to circumvent Robots.txt and subject webpages and files to discovery. For one, since Robots.txt is just a protocol, "not so well-behaved" crawlers can choose to ignore it and still index all the pages and files posted at a website. Second, if website A posts a file and website B has a link to the file, Robots.txt provides no defense because the crawlers would still find the link listed on website B even though website A tries to block the file by removing the link at its own website.

To avoid questionable pages and files to be discovered by accident, it's best not to post them in the first place. In addition, it's advisable for in-house counsel to work with their IT department to review what's on their firm's webservers.

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Rule 502: Curbing the Cost of E-Discovery

Although the proposed Federal Rules of Evidence 502 aims at reducing the cost of e-discovery, businesses can also play a critical role in managing this process.

In an article entitled "Preparation and Communication are Key to Managing E-Discovery Costs," (published in 25 No. 22 Andrews Toxic Torts Litigation Reporter 3, December 5, 2007), Richard Friedman of Dreier LLP explains the various ways businesses may prepare to produce electronically stored information (ESI) and thereby controlling both their costs and reducing the potential for expensive errors. Some pointers--

  • Adopt uniform procedures makes e-discovery a more manageable process with more predictable costs.
  • Through communication and negotiation, counsels can reach agreements on the scope of electronic discovery as early as possible resulting in significant cost savings for both sides, by reducing litigation costs as well as the volume of ESI that must be reviewed.
  • Identify the information that the organization collects and generates and the means by which it is stored. Organizations that lack adequate knowledge of both their inventory of information and their information technology systems risk seriously disadvantaging themselves at the initial Rule 16(b) scheduling conference and subsequent pretrial conferences.
  • Limit the kinds of information that are generated on a daily basis to reduce their potential exposure or to control their storage and retrieval costs, organizations may want to prevent certain kinds of information from being generated.
  • Initiate and enforce litigation holds to preserve relevant information in the event of a lawsuit. This step is necessary to prevent potentially responsive information from being routinely destroyed or deleted when there is a reasonable expectation of imminent litigation and certainly after litigation is pending.
  • Take advantage of techniques and technology that will reduce the universe of ESI that needs to be reviewed, as well as what needs to be produced in litigation.

While it remains to be seen whether Rule 502 will be adopted, businesses and law firms alike can certainly follow Mr. Friedman's advice on e-discovery cost control.