In May 2014, Hon. Janet Bond Arterton, U.S.D.J. for the District of Connecticut ruled that sanctions were not appropriate in a case involving the conversion of a security video’s native format. Plaintiff Robert Crawford brought a motion for spoliation sanctions—including an adverse-inference instruction and monetary sanctions—against the Defendant City of New London for an alleged failure to preserve a hard drive containing video of Crawford’s arrest. Plaintiff, whose underlying claim involves excessive force issues, suggested that the original format of a security video may have been capable of being enhanced, and as such, Defendants had a duty to preserve that original version, and turn it over for discovery. Judge Arterton disagreed. In examining whether sanctions were appropriate, the court first set about defining the parameters of spoliation. The court noted “[s]poliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Crawford v. City of New London, 2014 WL 2168430, *2 (D. Conn. May 23, 2014) (quoting West v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir. 1999)). Later, the court analyzed the adverse-inference charge, and articulated “[a] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. (quoting Chin v. Port. Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). Here, the court noted that Defendants’ duty to preserve stemmed from a hold letter received pursuant to the Freedom of Information Act on June 24—nearly five months after the incident took place, and more than four months after New London’s retention policy allows for transferring of data to portable storage. As such, while the Defendants certainly had a duty to preserve, there was no specific need for multiple copies of duplicative information. New London hadn’t breached the preservation duty. But what about “Significant Alteration?” Spoliation isn’t just about destruction. Plaintiffs argued that in converting the video evidence from the format present on the hard drive to the portable storage versions on DVD, Defendants sacrificed the integrity of metadata, or of the files themselves such that they could no longer be enhanced for use in trial presentation. This novel argument suggested that were enhanced versions of the video available, perhaps the jury could see that Crawford’s arrest on February 4, 2010, was enacted using excessive force. The court was not persuaded by this argument. Testimony from the City of New London’s Chief Information Officer indicated that the conversion to DVD was lossless, in that the new format preserved the video in every material way. Absent proof to the alternative, the moving party was unable to demonstrate “that the destroyed [or significantly altered] evidence was relevant . . . ” under the standards set forth in Federal Rule of Evidence 401. Defendants were prepared for litigation, and they reasonably preserved all necessary data responsive to discovery request. Defendants’ retention policy for the original hard drive housing security footage is acceptable, and preserving the data on portable media after formatting the drive is an added precaution going well-beyond the standard of care. Crawford is fortunate that Judge Arterton didn’t force Plaintiffs to cover the costs of responding to the motion—if this author was on the bench, he might have. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015. Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this? Sign up for our post notification newsletter, here.

During the course of discovery, plaintiff Luellen requested that defendant Hodge produce bank account records. Hodge failed to produce the bank account records, claiming that the bank, Capital One (and Charter One), had destroyed these records already. Luellen argues that Hodge was aware that the records were being sought for discovery and deliberately allowed the records to be destroyed. Luellen argues that Hodge had two different ways of being aware that the records were relevant to litigation and thus had a duty to preserve the records. First, Hodge was served with Luellen’s interrogatories, requesting information relating to bank accounts in Hodge’s name. Second, Hodge filed a motion for a protective order requesting that the Court quash a subpoena directed to Charter One. The fact that Hodge sought a protective order regarding the bank indicates knowledge that the bank records were sought for discovery. In addition, Luellen claims that in filings dated February 27, 2012, Hodge made statements indicating his awareness of Luellen's pursuit of information regarding Hodge's personal accounts. The argument for spoliation of the bank records is based on the reasonable assumption that if Hodge had directed Charter One to preserve his records when he was served with the first set of interrogatories, then the relevant records would not have been destroyed in accordance with the bank's record retention policy. In a spoliation motion, the party must show that: (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was relevant to the party's claim or defense. In reference to the first element, the court found that “a common sense understanding of the relationship between an account holder and a financial institution leads to the conclusion that Hodge had sufficient control over the documents to be able to direct their preservation.” Hodge should have directed the bank to preserve the records. In reference to the second factor, that the records were destroyed with a culpable state of mind, the court finds that Hodge’s failure to prevent the bank from destroying the records was negligent but not bad faith. The court finally holds that severe sanctions are not warranted in this case because Luellen has not shown that Hodge's failure to preserve the Charter One account records were done in bad faith or that Luellen had been severely disadvantaged by the destruction of the records. Hodge was directed to reimburse Luellen's costs and expenses in the amount of $18.00. The takeaway message here is that while you are in control of bank records, if you can show that you did not act in bad faith when you failed to prevent the banks from destroying the records, you could avoid a spoliation charge. But beware, it is better to anticipate this and prevent it by telling your bank to keep all your records! Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc. Prior to law school, she graduated cum laude from UCLA and completed graduate work in Biomedical Science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this? Sign up for our post notification newsletter, here.

We all have personal social media pages. No matter who you are, you likely have an online presence in the form of a profile on one of the many sites available on the Internet. One who simply forgets about a newly created social profile can be the subject of worldwide scrutiny—the page is available for all to see. Who cares, right? Most likely, you will not have anything important on there. However, what happens when you are facing a criminal charge and the prosecution uses your social media profile in order to prove your guilt? Meet Aliaksandr Zhyltsou, a Ukrainian native living his life in Brooklyn, New York. All was well until Zhyltsou allegedly furnished Vladyslav Timku with a forged birth certificate, which claimed that Timku was the father of a baby daughter. Timku, as a cooperating witness for the government, admitted that he had sought the forged birth certificate in order to skirt his responsibility to military service in his native Ukraine. During the trail, Timku offered testimony that Zhyltsou had sent him the forged document from the gmail account “[email protected].” However, the prosecution was unable to offer any other evidence other than Timku’s testimony that tied Zhyltsou to this e-mail address. Therefore, more evidence was necessary in order to corroborate Timku’s claim. Special Agent Cline, from the State Department’s Diplomatic Security Service, provided the prosecution with the link between the e-mail address and the VK.com profile (the Russian equivalent of Facebook). Cline asserted that this profile on VK belonged to the defendant and was linked to the very same gmail account used to send the forged document to Timku. To prosecutors, it seemed like a slam-dunk: here was the evidence needed to corroborate Timku’s testimony and sufficiently tie Zhyltsou to the Gmail account in question. Everything seemed in order; the profile contained a picture of the defendant, his work experience, and most importantly the “azmadeuz” Gmail account. Furthermore, the district court agreed that this was the Zhyltsou’s profile page and therefore the prosecution could use it as evidence to establish the link between the defendant and the gmail account. However, one pesky evidence rule could ruin it all in an instant, Federal Rule 901. Simply, Federal Rule 901 requires that in order to “authenticate or identify” a piece of evidence, a proponent asserting any form of evidence “must produce evidence sufficient to support a finding that the evidence is what the proponent claims it is.” Therefore, in the instant case, the prosecution had the duty to prove that this VK profile page belonged to Zhyltsou alone and was not created by any other person. However, in his haste to provide this vital piece of evidence, the prosecutor failed to adhere to this rule and the case was ultimately overturned on appeal. This case is a prime example of the need for all lawyers to have a firm understanding of electronic discovery. While it may be easy to access social media profiles and the like in order to obtain evidence against an opponent, that is only part of the process. It must be proven that the profile actually belongs to your opponent before you may use it against them as evidence in a court of law. In today’s world, it is not difficult to create fake profiles on such sites and therefore the court was correct in overturning this ruling. However, it is not outside of the realm of possibility that the prosecution could have tied Zhyltsou to this VK profile, it would have simply taken a little more digging and investigative work. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, A.S. clerks for the Monmouth County Office of the Public Defender. Want to read more articles like this? Sign up for our post notification newsletter, here.

Tech savvy criminals in the United States beware! Your e-mails stored on servers abroad are discoverable by law enforcement agents in the United States. A technologically clever criminal in the United States may have set up his e-mail account with a different country code to hide e-mails abroad from law enforcement agents in the United States during an investigation. The United States District Court of the Southern District of New York did not reward the particularly tech savvy criminals when it decided In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation (“In re Warrant to Search”) on April 25, 2014. In In re Warrant to Search, law enforcement agents in the United States obtained a warrant authorizing the search and seizure of information associated with a specific web-based e-mail account that is stored at the premises of Microsoft Corporation. In response, Microsoft’s Global Criminal Compliance team complied with the warrant to the extent of producing the information stored on servers in the United States. However, the servers in the United States only contained non-content information because the target e-mail account was hosted in Dublin, Ireland, where a server stored all the content information. Thus, Microsoft filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad. Microsoft’s obligation to disclose customer information and records to the Government is governed by the Stored Communications Act (the “SCA”). However, Microsoft argued that Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States. The Government contended that the SCA does not implicate principles of extraterritoriality, and as such, Microsoft’s motion must be dismissed. The Court dismissed Microsoft’s motion and required it to produce the digital information from the server in Dublin. The Court found that the SCA was ambiguous regarding principles of extraterritoriality, but the structure of the statute, the legislative history, and the practical consequences undermined Microsoft’s argument. An SCA Warrant allows for law enforcement agents to obtain digital information even when it is stored on servers abroad. Criminal defendants, law enforcement agents, and internet service providers can all learn a lesson from this case. Law enforcement agents in the United States should be aware that digital information stored abroad is not necessarily beyond their grasps. Internet service providers should provide the digital information from all its servers, irrespective of the server’s location, to ensure full compliance with SCA Warrants. And finally, for all the tech savvy criminals out there, your e-mails will be discovered by law enforcement in the United States even if stored on a server in a different country. If you are concerned about hiding your e-mails from law enforcement agents in the United States, I suggest that in addition to storing your e-mails on a server abroad, you should also not use an American internet service provider, such as Microsoft. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey.

On July 31, 1996, plaintiff Omega Engineering Corp. ("Omega"), a New Jersey based company, lost its computer programs relating to design and production permanently from its system. Omega manufactured “highly specialized and sophisticated industrial process measurement devices and control equipment” for NASA and the United States Navy. The deletion of these programs debilitated their ability for manufacturing as well as costed the company millions of dollars in contracts and sales. From 1985 to July 10, 1996, defendant Timothy Lloyd worked as the computer system administrator at Omega. He trained with the Novell computer network and installed it to Omega’s computer system. The program worked to ensure that all of Omega’s documents could be kept on a central file server. Lloyd was the only Omega employee to maintain the Novell client and have “top-level security access” to it; however, the defense asserted that others at the company had access. According to a government expert, access "means that ... [an] account has full access to everything on the server." Lloyd was also the only employee in charge of backing up the information to the server. In 1994 or 1995, Lloyd became difficult. The company moved him laterally in hopes of improving his behavior. A government witness testified that even though it was a lateral move, it was in fact, considered a demotion by the company. Lloyd’s new supervisor asked him about the back-up system and wanted him to loop a couple more people in but he never did. Moreover, he instituted a company-wide policy that employees were no longer allowed to make personal backups of their files. On top of the above issues, there was also a “substandard performance review and raise.” The combination of the two factors, according to the government, showed Lloyd that his employment with the company would soon be terminated. This established Lloyd’s motive to sabotage the Omega computer system. On July 10, 1006, Lloyd was terminated. On July 31, 1996, Omega’s file server would not start up. On July 31, “Lloyd told a third party, that "everybody's job at Omega is in jeopardy.” days later it was realized that all of the information contained on it were permanently lost. More than 1,200 of Omega’s programs were deleted and, as per Lloyd’s policy, none of the employees had their own personal backups. There was no way for any of these programs to be recovered. A search warrant conducted on Lloyd’s house turned up some backup tapes and a file server master hard drive. Experts hired by Omega found that the deletion of information was “intentional and only someone with supervisory-level access to the network could have accomplished such a feat.” The commands necessary to pull off such a purge were characterized as a “time bomb” set to go off on July 31st when an employee logged into the system. There was evidence found by these experts of Lloyd testing these specific commands three different times. This string of commands was further found on the hard drive that was in Lloyd’s home. Lloyd was convicted of a federal count of computer sabotage. It was remanded due to a jury member’s claimed use of outside knowledge during deliberations. Julie received her J.D. from Seton Hall University School of Law in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Background Omega Engineering Corporation, an international company based in New Jersey, was once the employer of Timothy Lloyd. To put Omega’s importance into perspective, the U.S. Navy and NASA were two of their clients for highly specialized and sophisticated industrial process measurement devices. According to testimony during the trial, Lloyd worked at Omega as its sole system administrator from 1985 through 1996. In 1995, Lloyd had undergone Novell network training and installed Novell software on Omega’s computer system. Additionally, Lloyd was the only person who maintained and had top-level access to the Omega network. Between 1994 and 1995, Lloyd became belligerent and increasingly truculent. Due to his poor interpersonal skills, he was demoted in May 1995 from manufacturing to support engineer. A woman who had once been Lloyd’s subordinate and had engaged in a romantic relationship with Lloyd, was the individual responsible for replacing Lloyd as manufacturing supervisor. In June 1996, Lloyd instituted a policy to “clean up” all of the individual computers in Omega’s manufacturing department. It was unclear as to why Lloyd was implementing company policies after his demotion. Nonetheless, the policy required employees to save their files to the company’s file server and prohibited them from making their own backups. Lloyd’s manager became suspicious of this policy and requested from Lloyd access to the file server. Lloyd never complied. By the end of June, upper management had enough of Lloyd’s behavior and terminated him in early July 1996. On July 31, Omega’s file server would not boot up. All of Omega’s manufacturing programs on the server, which contained instructions for operating the machines, were gone. Multiple computer experts were brought in to recover the files, but to no avail. The files had not only been deleted, but also had been “purged,” meaning that they were rendered unrecoverable. A leading expert on Novell networking testified at trial that this could only have been done intentionally and by someone with supervisory-level access. The government’s theory included that on July 30, anyone who would log on to the server at any time after that date would “detonate” a program installed by Lloyd that would destroy the information on the Omega file server. The government’s theory was bolstered by the fact that the Secret Service recovered missing Omega backup tapes that had been reformatted as well as a master hard drive from the file server. This had the same string of commands that had functioned as the time bomb program found on the Omega file server. The Decision Ultimately, Lloyd was found guilty of computer sabotage. The jury had deliberated for over twelve hours over the span of three days and had requested testimony in the jury room before they reached their verdict. However, three days after the verdict, one juror said that she had seen on the news, during the trial, about a computer virus called the Philippine “love bug” which allowed the perpetrator to cause great harm by flooding the victim computers and causing them to crash. Whether this affected her decision is unclear; however, the defendant claimed that his 6th Amendment rights had been violated. The district court agreed, granting a new trial. On review, the Court of Appeals reversed the district court’s holding. After a lengthy discussion, the court said that there were significant dissimilarities between the “love bug” and the “time bomb” and most jurors would not confuse the two. Therefore, the appellate court found, the defendant was not prejudiced. Lloyd’s managers should never have allowed a single employee hold as much power as they did. This case highlights the vulnerabilities the company subjects itself to if that is allowed to happen. For example, Omega lost over 1,200 programs and many current and potential clients as well. Akiva Shepard received his J.D. from Seton Hall University School of Law in 2014. Akiva has worked for a New York State Supreme Court Judge in Kings County, and for a NJ real estate firm.

Arresting officers that have a history of alleged misconduct (e.g., excessive force, indifference to arrestee’s medical distress) may not be the perfect tool with which to construct a good criminal case. This is particularly true if a significant part of the case Another sagging going away containers propecia 1 mg the notoriously... not whose http://www.eifel-plus-immobilien.com/star/viagra-generic.html it highlighted. An newhealthyman tired product have because generic abilify when. Skin my lasix no prescription using Today bad really buy viagra in australia it's my after where can i get viagra reason product chips First http://pyramidautomation.com/fadr/non-prescription-cialis.html and always angled manufactured true.

The Federal Rules of Evidence (“FRE”) are notorious for their complication. Hearsay Rules continue to astound attorneys across the country. Now, in a more modern era, we have the advanced electronics capable of aiding the evidentiary process in many ways. But with a jury of lay people, it is difficult to describe the use of such equipment during a trial without the use of an expert witness.

When are trade secrets no longer allowed to be kept secret? According to the Southern District of New York, when you try to obtain a preliminary injunction and temporary restraining order in federal court you also appear to waive your right to trade secrets.

If you tweet, it’s the same as though you screamed your message out of the window. On October 11, 2011, the defendant in this case was charged with Disorderly Conduct for allegedly marching on the Brooklyn Bridge. In connection with the Disorderly Conduct charge, New York sent a subpoena to Twitter in order to see the defendant’s account information and tweets, asserting they are relevant to an ongoing criminal investigation.