Preservation and Collection in the Cloud

By now, most people have heard of “cloud computing” as a way to provide software and data to end-users.  Some companies have already deployed a cloud as their technology solution, while others are still evaluating whether it is a feasible paradigm based on their security and reliability needs.  Regardless of where one stands with respect to their consideration and use of the cloud, there are some specific e-discovery challenges associated with preservation and collection of cloud data that should be discussed.

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Posted by Juilan Ackert at 2:45 PM - Categories: Preservation | Cloud Computing | Collection Process

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Amendments to U.S. Tax Court Rules Address ESI, but not Inadvertent Production

Recently, the United States Tax Court adopted amendments to its Rules of Practice and Procedure that address some issues related to electronic discovery.  Although many of these amendments mirror their counterparts in the Federal Rules, there are some notable differences between the FRCP and the Tax Court Rules.  These differences could raise substantial difficulties for Tax Court litigants if not addressed up-front.

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Posted by Joe Baker at 1:27 PM - Categories: Tax Court | FRCP | The Courts

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E-Discovery and Information Management

In my last blog posting, I discussed e-Discovery in an untethered world and highlighted the e-discovery challenges associated with mobile devices such as the iPad.  Today I’m going to talk about a way to reduce the cost and complexity associated with preservation and collection of these devices – information management.  This is not new – ARMA International has been around since 1955.  However, the centralization, storage, and management of information is becoming more critical than ever in today’s electronic, all-access world.

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Posted by Juilan Ackert at 12:10 PM - Categories: New Trends | Mobile Devices | Collection Process | Data Processing

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Navigating The Circuit Split on the Computer Fraud and Abuse Act

Navigating The Circuit Split on the Computer Fraud and Abuse Act and Its Use Against Employees Who Access Protected Electronic Information “Without Authorization”:

The primary statute that many rely upon to enforce breaches or thefts of electronically stored information is the Computer Fraud and Abuse Act (CFAA).  The CFAA allows victims to maintain a private cause of action against someone who intentionally accesses a protected computer “without authorization” or “exceeds authorized access,” in order to obtain information, perpetrate a fraud, or cause damage.  18 U.S.C. § 1030(a), (g).  The question that many pose is to what extent can a company or employer realistically rely upon the CFAA as a means to protect its information in the case of a breach or unauthorized access to its computing systems.  In this regard, there are divergent views among the courts regarding two key elements of the statute that are a potential limit to its true reach: (i) the meaning of “authorization”; and (ii) the scope of recoverable damages.

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Posted by John Rosenthal at 12:42 PM - Categories: The Computer Fraud and Abuse Act (CFAA) | The Courts | Case Law

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E-Discovery in an Untethered World

Earlier this month, Apple released the iPad to the general public.  There has been considerable discussion as to whether a device such as the iPad, with functionality between a smart phone and a laptop, will appeal to users.  In the last month, I’ve certainly seen a number of emails with a “Sent from my iPad” signature line.   As such, devices such as the iPad are worth evaluating and discussing from a discovery perspective.

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Posted by Juilan Ackert at 12:18 PM - Categories: New Trends | Mobile Devices

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Two US District Court Decisions Order Discovery Despite Conflicts with Foreign Bank Secrecy Laws or Blocking Statutes

In a pair of recent decisions, two US District Courts have compelled the disclosure of overseas documents even though such production may violate foreign criminal laws. These decisions suggest several key factors that should be considered by litigants facing this increasingly common issue.

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Posted by Joe Baker at 2:16 PM - Categories: Cross-Border | International Concerns | Case Law

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Introducing Hedge Funds and Private Equity Firms to E-Discovery

The details of rules regulating “alternative investment” funds like hedge funds and private equity firms are as yet uncertain.  But we do know that they will include new requirements to retain and disclose ESI.  Proposed legislation such as the “hedge fund transparency act” even emphasizes this fundamental truth in its title.  While some of the larger firms saw the writing on the wall in terms of heightened regulatory scrutiny years ago, the alternative investment players who can be counted among those who proactively prepared for a more demanding legal compliance regime are few, and typically limited to the largest and best known firms doing the largest and most highly publicized deals.

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Posted by Adam I. Cohen at 12:43 PM - Categories: New Trends

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The “Thirteenth” Juror

Co-authored with Ronald Hedges.

The Issue

Courts have always faced the problem of jurors who chose to conduct independent research during trial or jury deliberations.  In the past, that research was generally limited to such things as visiting a relevant crime scene, or reading a newspaper.  Today, independent research is easily performed through the use of any of a number of readily available electronic media, including PDAs, mobile phones and PCs.  Not only are the opportunities for independent research multiplied by the sheer variety of Internet sources, but the media itself can be carried into the jury room and the results of the research can be shared, “real time,” among the jury.  Thus, the Internet can easily become the invisible “thirteenth” juror.

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Posted by Maura R. Grossman at 12:22 PM - Categories: The Courts | Case Law

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European privacy regulators investigate “tagging” features of Facebook and Google

On March 24, 2010, European regulators announced an investigation of the practice of photo and video “tagging” in Facebook and in Google’s “YouTube.”   EU regulators argue that tagging without consent of non-registered users is a breach of data privacy laws. And they note that neither Facebook nor Google have an age requirement for information users posts about others.

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Posted by M. James Daley at 4:13 PM - Categories: Social Media | Cross-Border | International Concerns

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Two Prominent Federal Judges Issue Opinions for Determining Sanctions

Since January 11, 2010, two prominent federal judges issued opinions detailing the analytical framework for deciding whether to impose sanctions for the spoliation of electronic evidence.
 
Pension Committee of Univ. of Montreal v. Banc of America Sec, LLC, et. al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), was a decision issued by Judge Shira Scheindlin on January 11, 2010.  Judge Scheindlin’s opinion was titled “Zubulake Revisited: Six Years Later” and outlined an analytical framework for imposing severe sanctions for discovery failures.
 
Respected jurist Judge Lee Rosenthal reinforced this framework in an opinion she issued in Rimkus Consulting Group Inc. v. Cammarata, H-07-0405 (S.D. Tex. Feb. 19, 2010); however, she took a different approach than Judge Scheindlin in analyzing the culpability level necessary for imposing sanctions for preservation failures.

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Posted by John Rosenthal at 4:42 PM - Categories: Proportionality | Judge Shira A. Scheindlin | Spoilation | Judge Lee Rosenthal | Case Law

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