Authored By: Fernando M. Pinguelo

Tweet This: FBI Warns Unsuspecting Travelers of Cyber Booby Traps Found In Hotel Internet Connections

The Internet Crime Complaint Center (IC3) issued a notice on May 8th that revealed a recent claim by the FBI and other agencies that cyber criminals are targeting travelers abroad through pop-up windows while they attempt to connect to the Internet in their hotel rooms. Specifically, as travelers attempt to setup a hotel room Internet connection through their laptop, they are presented with a pop-up window that asks to update a widely-used software product. If the user clicks “accept and install,” malicious software downloads on the travelers’ laptops. The pop-up window appears to offer a routine update to a legitimate software product for which updates are frequently available. 

Authored By: eDiscoverista

Citation: Moore v. Publicis, 11 Civ. 1279, 2012

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: Magistrates have broad discretion in resolving non-dispositive disputes, like discovery motions, and a ruling will survive if it's well reasoned. Accordingly, your judge must consider the circumstances surrounding use of computer-assisted document review, carefully craft a protocol that contains standards for measuring reliability in terms of process and method, and build in levels of participation and quality assurance for both sides.

Tweet This: Peck's Feb 8 disc. rulings survive review; parties (read: Plaintiffs) schooled on highly deferential std. of rev.

Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis!  As eDiscoverista predicted (don't look so surprised), plaintiffs filed a formal motion for review of Judge Peck's approval of predictive-coding protocol.  Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck's ruling as it was "well reasoned" and not erroneous or contrary to law, in accordance with Rule 72(a).  Peck's ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides. Last Month on Moore v. Publicis… If you've just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs' allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. 

Authored By: Fernando M. Pinguelo

Tweet This: CISPA Moves Forward, But Still Just a Bill

In a nutshell, the Cyber Intelligence Sharing and Protection Act (CISPA) provides the government with the power to share classified information about security threats with certain U.S. companies so that these companies can use that information to better protect their computer networks that store sensitive, proprietary, and confidential information, including intellectual property and trade secrets.  CISPA allows companies to share information relating to cyber security with government authorities and protects those companies against privacy lawsuits. CISPA has broad support from many of the U.S.’s most powerful and influential companies and trade associations, including IBM and Verizon, the Securities Industry and Financial Markets Association, and the American Petroleum Institute.  For a list of members of the House who supported CISPA, click here; for a list of businesses and trade associations that support CISPA, click here.  

Authored By: eDiscoverista

Citation: Moore v. Publicis, 11 Civ. 1279, 2012

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: Federal court approval of predictive coding protocol for computer-assisted review is under review, so don't dump your paper files and document review teams just yet.

Tweet This: Fed ct approval of predictive coding protocol for pc-assisted review under review, doc rev teams safe for now

It seems like just days ago I was celebrating Judge Peck's approval of computer-assisted review of documents to identify those responsive to discovery requests.  You too?  Well, take off your party hat -- Computer-assisted review, specifically Judge Peck's endorsement of a predictive coding protocol, is under review. **BREAKING NEWS!** Get the latest at the end of this article.** In my last post, I explained that Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, opined with regard to a discovery dispute in connection with Moore v. Publicis.  Therein, plaintiffs allege that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions.  Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.

Authored By: Lauren Winchester

Citation: United States v. Briggs, 2011 WL 5881593 (W.D.N.Y. 2011)

Employee/Employer Implicated: Outside Counsel; Criminal Defendant; Government Official

e-Lesson Learned: If you want to receive ESI in a form that you prefer, then your best bet is to work out the details of discovery with your adversary so as to avoid judicial intervention and micro-management eDiscovery because you’ll likely not be satisfied with the court’s decision.

Tweet This: Gov’t Not Required to Produce ESI in Manner Requested by Defs in Cocaine Distribution Case

In his November 23 decision, federal Magistrate Judge Hugh Scott held that the government was not required to produce electronically stored information (“ESI”) in the manner requested by the defendants in a 24-person criminal cocaine distribution conspiracy.  Judge Scott made it clear that in the absence of a clear criminal standard, he would follow analogous civil standards for distribution of ESI.  But see Subsequently adopted standards released recently by criminal rules committee.   Defendant Damian Ard, joined by ten other defendants (including the named defendant, Briggs), moved to amend the criminal ESI Order to clarify the manner in which specific government ESI should be produced.  The original ESI Order required the government to choose between producing ESI in its native format and reproducing it in a searchable format.

Authored By: Erin Hendrix

Citation: Synopsys, Inc. v. Ricoh Co., 661 F.3d 1361 (Fed. Cir. 2011).

Employee/Employer Implicated: Counsel, Service Provider

e-Lesson Learned: Parties in modern litigation cannot hope to avoid costs associated with production of discovery by labeling electronic services as “modern conveniences.” Also, generic record keeping is not sufficient to uphold an award of costs under 28 U.S.C. §1920.

Tweet This: Electronic discovery is not a “Get Out of Jail Free” card

In Re Ricoh Co., Patent Litig. arose out of a disagreement over cost-shifting after a patent litigation.  The award was based on 28 U.S.C. § 1920(4) which grants courts the power to tax as costs “fees for exemplification on the cost of making copies of any materials where the copies are necessarily obtained for use in the case.”  Both parties in Ricoh ran into problems with this provision.  Ricoh claimed that electronic discovery was merely a modern convenience, while Synopsys could not meet the stringent demands of the electronic world. Ricoh first took issue with the district court’s award of costs to Synopsys for Stratify, a third-party electronic database service.  Ricoh and Synopsys could not agree on a form of production of certain documents tied to the patent litigation.  Ricoh subsequently suggested that Synopsys use Stratify to produce the documents in question.  Synopsys agreed, only to have Ricoh argue that Stratify does not qualify under §1920(4) because it was used merely for the convenience for counsel, and not actually necessary for the case.

Authored By: Lauren Cannataro

Citation: I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011)

Employee/Employer Implicated: Counsel

e-Lesson Learned: Crafting electronic discovery requests can be a tricky business. Attorneys must pay careful attention to the nature, scope and parameters of their demands to avoid unmanageable and expensive mistakes.

Tweet This: In Electronic Discovery, Poorly Done Demands Can Become Million Dollar Mistakes

The first line of the Court’s opinion says it all: “This case highlights the dangers of carelessness and inattention in e-discovery.”  In this particular instance, “carelessness” and” inattention” to the nature, scope, and parameters of search terms and locations in a discovery stipulation almost resulted in a required document review of more than 95 million pages and a multi-million dollar bill for the Plaintiff.  While the court here did not require Plaintiff to complete the review, citing the unreasonable burden and expense, this case should serve as a reminder to attorneys of the importance of well-crafted electronic discovery requests and a warning of what could occur should they fall short.  

Authored By: LeagleEagle

Citation: WIREdata, Inc. v. Village of Sussex, 751 N.W.2d 736 (Wis. 2008).

Employee/Employer Implicated: Government Officials of Village of Sussex, Wisconsin

e-Lesson Learned: Electronic means electronic! A PDF file is an electronic format that will satisfy a public records request.

Tweet This: Don’t be so choosy when requesting public records or u may end up w boxes of docs instead of electronic formats

This case deals with the interpretation and application of Wisconsin’s open records law, Wis. Stat. § 19.31 et seq. (2005-06).  How far does the open records law go in accommodating a requestor?  Is a governmental body required to bend over backwards to not only provide the information requested but generate it in the specific form requested even if that means having to hire new employees just for the task?  What kind of burden do we want to place on our governmental bodies? This case arose when WIREdata made open records requests to Wisconsin municipalities Sussex, Thiensville, and Port Washington to provide WIREdata with information about their property assessments. WIREdata’s intention was to take the information and sell it to local realtors and brokers.

Authored By: Suzanne Janusz

Citation: In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-MD-1775, 2010 WL 1189341, (E.D.N.Y. Mar. 29, 2010).

Employee/Employer Implicated: Counsel

e-Lesson Learned: Foreign parties cannot rely on their countries’ blocking statutes as absolute protection from the production of documents or information during litigation in US courts. Courts will weigh the parties’ interests and may order production regardless of the blocking statutes’ terms.

Tweet This: Int'l Parties Beware: Can’t Always Hide Behind Blocking Statutes to Escape Produc of Docs in US Courts

Foreign nations seek to protect parties within their borders in international litigation by enacting “blocking statutes.”  These statutes protect a party from having to produce documents or information to be used as evidence in foreign judicial or administrative proceedings.  Failure to comply with the blocking statute can subject the foreign party to criminal sanctions. What do these statutes mean for American parties seeking to obtain documents or information through discovery?  An outcome to be avoided: further delay of the discovery process.  The French blocking statute at issue in In re Air Cargo Shipping Services Antitrust Litigation protected French parties from the production of documents or information in foreign proceedings unless the request was made pursuant to the Hague Convention or other treaties.  In this case, which was already into its fourth year at the time of the district court’s opinion, and other cases still in discovery after years have elapsed, further delay could prove very costly.

Authored By: M.H.

Citation: Gucci America, Inc. v. Curveal Fashion, 2010 U.S. Dist. LEXIS 20834 (S.D.N.Y. Mar. 8, 2010).

Employee/Employer Implicated: Parent Company and Subsidiary

e-Lesson Learned: A US court may compel a discovery request to disclose information regarding a party’s foreign bank accounts despite that such disclosure allegedly violates foreign law.

Tweet This: Foreign Relations Law: Does the US always come out a winner?

In a discovery dispute between two parties in a civil matter, the United States, as a government entity, is not usually found to have a superseding interest. However, in a trademark infringement case between two companies, where a third party challenges a discovery request to produce documents regarding a party’s foreign bank accounts, the US District Court finds that the United States has a substantial interest in the foreign production of documents. In Gucci America, Inc. v. Curveal Fashion, the trademark infringement case is between Gucci America and Curveal Fashion, yet the discovery dispute is between the plaintiff Gucci America and the third party, United Overseas Bank Limited, Singapore and its subsidiary United Overseas Bank (Malaysia) (“UOB Malaysia”). In issuing a default judgment in favor of the plaintiffs in the trademark infringement case, the court also issued a subpoena for UOB Malaysia to produce documents regarding the defendants’ Malaysian bank accounts. UOB’s New York Agency refused to comply with the subpoena on grounds of legal implications that would ensue if UOB Malaysia were to comply with the subpoena.