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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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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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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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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District Court Orders Production Despite German Data Protection Act

Once again a U.S. court has ordered production of overseas documents despite the objection of a party asserting that transfer of the data will result in a breach of European data protection laws.  In this case, AccessData Corp. v. Alste Techn. Gmbh, No. 2:08-cv-00569 (D. Utah Jan. 21, 2010), a federal magistrate judge granted a motion to compel defendant/counterclaimant Alste to produce certain customer records from Germany.  Alste had objected, arguing that production of this “private third party information” would subject Alste to civil and criminal penalties under the German Data Protection Act, and that the parties should instead proceed under Hague Convention procedures.  The court granted the motion to compel because it was unpersuaded that the German Act actually prohibited Alste’s compliance with the discovery request.  It also noted that foreign “blocking statutes” (a term it used overbroadly to describe the German Act, which unlike a true blocking statute does not serve solely to block foreign discovery) do not deprive American courts of the power to order the production of evidence.  Although the court ordered production of the documents, it did not reach the question of sanctions, and its opinion suggests ways that future parties in Alste’s position can bolster their arguments in favor of accommodating foreign law and/or proceeding through the Hague Convention.

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Posted by Joe Baker at 9:58 AM - Categories: International Concerns | Case Law

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“Zubulake Revisited” Creates a Stir

In Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, Case No. 05 Civ. 9016 (SAS) (S.D.N.Y. Jan. 11, 2010), Judge Shira A. Scheindlin, the author of the influential Zubulake opinions, has again weighed in on the scope of litigants’ e-discovery obligations.

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Posted by Joe Baker at 3:12 PM - Categories: Judge Shira A. Scheindlin | discovery sanctions | Spoilation | Case Law

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Mohawk Industries and E-Discovery

Co-authored with Ronald Hedges.

In Mohawk Industries, Inc. v. Carpenter, 2009 WL 4573276 (Sup. Ct. Dec. 8, 2009), the Supreme Court addressed “whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine.”  What are the implications of the Court’s answer to that question for discovery in general and discovery of ESI in particular?

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Posted by Jeane Thomas at 12:40 PM - Categories: Case Law

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