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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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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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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My 2010 “Wish List” for the E-Discovery Community

Happy New Year!

While most years I am content to write New Year’s resolutions for myself, this year I have decided to write New Year’s resolutions for various constituents in the e-discovery community.  Here are my top three New Year’s hopes for clients, vendors, counsel, and the courts.

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Posted by Maura R. Grossman at 12:22 PM - Categories: TREC Legal Track | The Courts | Case Law | Service Providers

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ESI Management and the “Business” of Discovery Compliance

Americans love to litigate.  We sue each other over every big and little perceived harm, from the collapse of the nation’s largest financial institutions to the dry-cleaner that lost the judge’s pants.  It is our right and we love to exercise it – and all that comes with it, including onerous discovery obligations.

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Posted by Jeane Thomas at 11:54 AM - Categories: Compliance | The Courts | Case Law

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Seventh Circuit Puts Legs on the Sedona Conference ® Cooperation Proclamation

In July 2008, The Sedona Conference® released the Cooperation Proclamation, urging the bar and bench to abandon adversarial conduct in pre-trial discovery of ESI leading to the imposition of unnecessary costs and burdens that threaten the goals of Federal Rule of Civil Procedure 1 – the “just, speedy, and inexpensive determination of every action,” – and adjudication of disputes on the merits.  Since then, the Cooperation Proclamation has been endorsed by 92 federal and state judges, and cited in 12 judicial opinions.

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Posted by Maura R. Grossman at 2:17 PM - Categories: The Courts

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