e-Lessons Learned

e-Lessons Learned is proud to bring you our first Video e-Lesson Learned, presented by Brett Van Benthysen of Seton Hall University School of Law. Click on the embedded video below to begin playback, and check out the e-Lessons Learned article it was based on by clicking here.

Stand-up comic Chris Rock has a great comedic bit about how men in relationships should not cheat on their significant others “‘cause you gonna get caught.” Well, one thing I’ve learned in my E-Discovery blogging, and one thing that the defendant in this case could stand to learn, is that if you decide to use hard drive-cleaning software to erase discoverable information from your computer, “you gonna get caught.” And just like men who cheat, once you get caught erasing discoverable information, you are in for a world of hurt.

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In a recent law review article, The Honorable Shira A. Scheindlin, U.S.D.J. (Southern District of New York) and Jonathan M. Redgrave address the recent revisions to Rule 53 and discovery rules, and articulate appropriate uses of special masters in the growing world of e-discovery. They predict eDiscovery Special Masters to be the next big thing in e-discovery.

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As of Saturday April 18, 2009 President Obama officially appointed Aneesh Chopra as his Chief Technology Officer, the Wall Street Journal reports. The President reported this news via radio and discussed some of the tasks Chopra would face including government efficiency, job creation, and healthcare. Obama also nominated Jeffrey Zients for Chief Performance Officer and Deputy Director of the Office of Management and Budget; Zients awaits confirmation.

Chopra and Zeints will work in close connection to Vivek Kundra, who was named Chief Information Officer just a short time ago. Information Week quoted Obama when he spoke of the work relationship that these three will have. “Aneesh and Jeffrey will work closely with our chief information officer, Vivek Kundra, who is responsible for setting technology policy across the government and using technology to improve security, ensure transparency, and lower costs,” Obama said.

Chopra appointment was well received by executives and bloggers alike. People believe that Chopra’s dedication and expertise concerning technology will put the U.S. in a positive direction.

Check back with eWhite House Watch for the latest updates about the President’s technology policies.

When a party requests that hard-copy documents be converted into a searchable digital file, the benefits of streamlined discovery can lead a court to order that the opposing party comply and pay for the necessary software and labor. Only a clear showing of Zubulake cost-shifting factors, such as lack of a reasonable likelihood that the evidence sought will lead to the discovery of admissible evidence, or high costs relative to the stakes of the litigation, would militate shifting the cost of the document conversion to the requestor. As between two corporate giants with litigation war-chests, the court will most likely have no reason based on economics for cost-shifting.

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The defendants in this case moved for an order requiring the plaintiffs to pay at least 50% of its third party vendor electronic discovery costs. With these limited facts, this is a perfectly reasonable request, such as seeking a protective order, or seeking protection under Fed. R. Civ. P. 26(b)(2)(B) and 26(c). However, the defendants failed to comply with either of these. Instead, the defendants sought to an order requiring the plaintiffs to pay at least 50% of its third party vendor electronic discovery costs after producing the information. Continue reading »

President Obama must consider many factors as he tries to turn the United States economy around, and this focus necessarily includes his commitment to technology. Obama vows to continue spending stimulus money to boost our economy, some of which will be spent in the IT field. Recently, InformationWeek reported that IT professionals finally feel as if the President understands the importance of technology. With billions already being spent in the IT field, Obama vows to spend more on “health care, education, broadband, [and] mobility.”

Obama is also spending billions of dollars to provide schools with better technology. The money from the stimulus plan is intended to help keep schools up-to-date in the ever changing technology field. Obama expects that teachers, administrators, and students alike would benefit by providing them with the latest of what technology has to offer.

From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not.

Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.

Click here for full article.

This post has been updated to reflect subsequent appellate action. Click Here to jump to the updated section.

Employers often give their employees communication equipment that they may use to carry out their job duties: computers, laptops, cell phones, PDAs, and the like. What is often lost on those employees is that those items belong to the employer, not the employee, and often all communications made from those items are not deemed private by the employer. Thus, if you want to communicate with someone away from the prying eyes of your employer (like with your lawyer who is helping you sue your employer), it is best to do so using the communication tools that you own. This case shows why.

Factual Background

Stengart, an employee of Loving Care Agency, Inc. (“Loving Care”) for nearly 13 years, left her position as Director of Nursing in December 2007 and filed a lawsuit against Loving Care in February 2008 for fostering a hostile work environment that led to her constructive discharge. Prior to her resignation, Stengart communicated with her lawyer about her employment issue with Loving Care by emailing her lawyer from her Yahoo email account. She typically used her company-issued laptop to do this, and often did so during business hours. Continue reading »

It looks like P2P is not the only type of “file-sharing” going on at universities today. The plaintiffs in this case alleged that a number of unknown college students had used the internet service providers on campus to download or distribute copyrighted material using various peer-to-peer file-sharing networks. To determine the students’ identities, the plaintiffs requested permission under Fed. R. Civ. P. 45 to serve subpoenas on Yale University and the University of Connecticut to compel production of the unknown defendants’ true names, their current and permanent addresses and telephone numbers, their e-mail addresses, and their Media Access Control (“MAC”) addresses.

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