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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Building Better Search Term Sets

Generating a set of keywords to filter a document set is growing more commonplace during the e-discovery lifecycle.  These keywords often include terms like the product name in a product liability case or the drug name in a patent litigation, and provide counsel a more targeted approach to document review.  With the volumes of ESI growing at exponential rates, keyword searches can be instrumental to comply with discovery deadlines.

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Posted by Juilan Ackert at 11:17 AM - Categories: Search tools & methodologies | Keyword Search

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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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“You Can’t Trust Them Foreigners” – Outsourcing Document Review

In a piece called “Legal Olympics Update: Outsourcing E-Discovery Sliding Down Slippery Slope, at Record Speed”, posted on February 16, 2010 by Gabe Acevedo, the author commenting on the ABA Ethics Opinion issued in August 2008, states

“LPOs had a right to be celebratory about ABA 08-451. After all, never in the history of the United States was there ever an ethics opinion of any Bar Association that had done more to undermine the standing of both American attorneys and our practice of law.”

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Posted by Jim Michalowicz at 1:08 PM - Categories: Document Review | Outsourcing | International Concerns

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Let’s hear it one more time for Education!

First, allow me to thank everyone who responded to my previous blog post regarding certification.  It has been an honor and a privilege to receive so many e-mails as well as comments on this as well as other blogs that picked up the post.
 
Since the majority of your responses focused on the field of education rather than certification, this post will be dedicated exclusively to it.  I think most would agree that e-discovery and the practice support industry are in dire need of solid and unbiased education.  So before you commit your hard-earned and heavily fought-for budget money to an education course, ask yourself the following questions:

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Posted by George Rudoy at 1:55 PM - Categories: Future Trends | CLE

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