E-Discovery: Legal Decisions and Court Rules Archives - Page 14 of 18

On September 6, 2011

Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record reflects about your intentions. Although both the plaintiff and the defendant in E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, demonstrated that the other intentionally destroyed relevant evidence, as is detailed below, the Court sanctioned only defendant Kolon Industries, Inc. (“Kolon”) based on its manifest bad faith (read the decision here). As is discussed in an earlier post on Gibbons’ E-Discovery Law Alert (which you can read here), plaintiff E.I. du Pont de Nemours and Company (“DuPont”) escaped a similar fate based on its demonstrable good faith. In short, this case teaches that the intentional deletion of relevant evidence does not per se lead to sanctions. Rather, the parties’ conduct — or misconduct, as the case may be — must be judged contextually.

How a “Stink Bomb” E-Mail and Its Proof That Facebook Pictures Were Deleted Might Have Blown Up a $10.6 Million Verdict

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On August 8, 2011

Parties in all types of cases often post pictures and messages on Facebook that might be detrimental to their cases. After his wife died tragically in an automobile accident, and he brought a wrongful death case, Isaiah Lester did just that when he posted a photo of himself wearing an “I [love] hot moms” t-shirt and garter belt on his head while he had a beer in hand. That was his first bad choice.

Judge Grimm Authors Tutorial on Federal Rule of Evidence 502

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On August 4, 2011

Magistrate Judge Paul W. Grimm, a renowned authority on e-discovery, recently published an article in the Richmond Journal of Law and Technology discussing Federal Rule of Evidence 502. Judge Grimm’s article, “Federal Rule of Evidence 502: Has It Lived Up To Its Potential?,” provides a comprehensive analysis of Rule 502, offers frank criticism of court decisions interpreting the rule and outlines do’s and don’ts for practitioners.

Court Withdraws Opinion, But Metadata Will Still Likely Be Considered Integral Part of ESI

by Jennifer A. Hradil

Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On July 18, 2011

On June 17, 2011, United States District Court Judge Scheindlin issued a brief opinion and order withdrawing her February 7, 2011 opinion, which had held that certain metadata should be considered an “integral part” of an electronic record and must be produced by the government in responding to a Freedom of Information Act (“FOIA”) request. Our prior posting on this opinion can be found here. The Court withdrew its June 2011 opinion because “subsequent admissions” have revealed that the Court’s decision “was not based on a full and developed record.”

Notes From the E-gallery: Live texts, tweets and postings by courtroom observers present new challenges

by Stephen J. Finley, Jr.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 20, 2011

Courts frequently grapple with questions raised by the use of social media in the legal process. From the admissibility of social media to limitations on its use by jurors, courts are continuing to develop new tools and best practices to ensure the outcome of a case is not impacted by social media sites. While the issues raised by new social media technologies have primarily concerned those actually involved in a trial (i.e., the parties, their counsel, and members of the jury), that is beginning to change. Outside observers and news reporters are utilizing social media to report on trial happenings, sometimes in real-time.

The Gibbons E-Discovery Task Force and the NJ Chapter of Women in E-Discovery present “The Internet and Social Media in the Courtroom”

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules / Technology Developments and Issues

On June 16, 2011

Please join the Gibbons E-Discovery Task Force and the NJ Chapter of Women in E-Discovery in its presentation of “The Internet and Social Media in the Courtroom,” hosted at Gibbons on Tuesday, June 21, 2011, from 6:30 to 7:30 pm. CLE credit is available for NJ and NY, and pending for PA. Jennifer A. Hradil will moderate a panel featuring Mara E. Zazzali-Hogan, Jennifer Marino Thibodaux, and Suzanne Herrmann Brock, regarding the use of social media in litigation and the courtroom.

Pennsylvania Court Orders Plaintiff to Disclose Facebook and MySpace Passwords, User Names, and Log in Names to Defendant

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 10, 2011

A Pennsylvania trial court recently became one of a growing number of courts to rule that a plaintiff’s non-public Facebook and MySpace postings are discoverable. On May 19, 2011, in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) the Court of Common Pleas of Pennsylvania granted the defendant’s motion to compel the plaintiff, a former employee of the defendant, to disclose his Facebook and MySpace passwords, user names and log in names. Notably, the Court reasoned that because the plaintiff voluntarily posted all of the pictures and information on his Facebook and MySpace sites, he had no reasonable expectation of privacy to the postings although the posts were on non-public pages.

Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 6, 2011

Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).

Caveat E-Mailer: New York Court Holds E-Mail May Be Binding in Real Estate Transaction

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 26, 2011

Acknowledging the widespread use of electronic communications in commercial transactions, courts and legislatures have recognized e-mails as binding legal documents. The Appellate Division of the Supreme Court of New York recently reinforced this trend by holding that an e-mail from a real estate broker could satisfy the writing and subscription requirements of the New York statute of frauds. In Naldi v. Grunberg, the plaintiff sued the owner of a commercial property in Manhattan claiming that the owner breached the plaintiff’s right of first refusal when the owner sold the property to another buyer. The plaintiff had offered through his broker to purchase the property for $50 million. The owner’s broker responded three days later with an e-mail that included the following statements: Counteroffer: $52 million; DD: No due diligence period although complete unfettered access and first right of refusal on any legitimate, better offer during a 30 day period.

Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices

by Jennifer A. Hradil

Posted in E-Discovery: Legal Decisions and Court Rules

On May 16, 2011

In September 2010, the Third Circuit Court of Appeals became the first federal appeals court to rule on the question of whether the government is required to establish probable cause to obtain cell site location information (“CSLI”) from a cell phone provider. See In the Matter of the Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010). CSLI includes historical information that is collected by cell towers during cell phone calls, which can later be used to render some opinions as to the location of the cell phone during those calls.

Category: E-Discovery: Legal Decisions and Court Rules

DuPont v. Kolon: A Lesson In How To Avoid Sanctions For Spoliation Of Evidence

Judge Grimm Authors Tutorial on Federal Rule of Evidence 502

Court Withdraws Opinion, But Metadata Will Still Likely Be Considered Integral Part of ESI

Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ

Caveat E-Mailer: New York Court Holds E-Mail May Be Binding in Real Estate Transaction

Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices

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