e-Lessons Learned

The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.

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eLessons Learned is happy to announce a great eDiscovery event taking place on Wednesday, April 7th.

The Hispanic National Bar Association (New York Region) In-House Counsel Committee and Huron Consulting Group invite you to join us for a cocktail reception and in-depth panel discussion.

What Every In-House Counsel and the Law Firms Who Represent Them Need to Know About E-Discovery After “Zubulake Revisited: Pension Committee and the Duty to Preserve.”*

Register Here

April 7, 2010
6:30 PM Cocktail Reception
7:15 PM Program

Intercontinental Barclay
111 East 48th Street
New York, NY

Panelists:
• Ralph Losey, Shareholder, Akerman Senterfitt LLP
• Chris O’Neill, Associate General Counsel, IBM Corp.
• Carolyn Southerland, Managing Director, Huron Consulting Group
• Bill Speros, Director of Litigation Support and E-Discovery, Baker Hostetler LLP

The discussion will be moderated by HNBA In-House Counsel Committee Chairs:
Fernando A. Bohorquez, Jr., Partner, Baker Hostetler LLP
Richard A. Lafont, Shareholder, Akerman Senterfitt LLP

During this session, panelists will discuss the practical impact of Judge Schiendlin’s decision for In-House Counsel and Outside Counsel, including best practices for avoiding the e-discovery pitfalls outlined in the opinion.

For questions, please contact Andrea James Smith at 202-585-6811 or [email protected]

*This session has been approved for 1 CLE Credit in NY, NJ, and PA.

Suppose you’ve got a business. Not just any business, however, but a state-of-the-art business. Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner. Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data. You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email. You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers. You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side. You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible.

Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit? Perhaps even a completely bogus, frivolous lawsuit. Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery. Continue reading »

In Einstein, plaintiffs claimed that a Brooklyn condominium unit that they purchased was defective in its design and construction, and that defendants, including a real estate broker and several of its agents, fraudulently concealed water leak defects and induced plaintiffs to purchase the apartment. The plaintiffs obtained emails from co-defendants that were transmitted by the business defendant’s employees but never produced by the defendants during discovery.

The defendants failed to take reasonable measures to ensure that all business communications were preserved as per the legal hold notice instructions, which ultimately lead to spoliation of the documents and sanctions for acting grossly negligent. Through various motions and testimony of one the defendant’s IT director, it became clear that defendants relied on backup tapes in order to retrieve documents which were at issue, the reliance on which was flawed from the start. Continue reading »

Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins? Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident.

In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers. After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault. Defendants never provided the prisoner with the copy. Continue reading »

Suddenly find yourself at the wrong end of a trade secrets litigation? Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry^® smartphones. Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.

The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys. The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions. But you might be thinking: “A BlackBerry wiped clean? Who cares! All the e-mails the other side could possibly want are readily available on the server.” This type of thinking could get you in trouble. Let’s see why.

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Blogger Joscelyn briefs us on the Stengart v. Loving Care case in this video eLesson.

Trouble lurks when you rely on ‘a pure heart and an empty head’

Now, I know what you’re probably thinking. “Revisit Zubulake!? But that was so long ago! Surely everything has changed!” (Sarcasm)

To be fair, things were quite different back then – no iPhones, no clouds (in the IT world), no Google Any-Application-You-Can-Think-Ofs. The technology landscape has certainly evolved since Zubulake became a household name.

But (at least) two things haven’t changed: Judge Shira A. Scheindlin’s view of eDiscovery due diligence and parties’ (and their lawyers’) continued failure to meet these expectations.

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Join the Friends of LatinoJustice PRLDEF for the

LatinoJustice Leadership Reception

March 23, 2010 ● 6:00 pm-9:00 pm

PRANNA Restaurant ● 79 Madison Avenue ● NYC

LatinoJustice PRLDEF has been defending the civil and human rights of Latinos for almost 40 years. To more effectively reach Latino communities nationwide, we’ve overhauled our website (www.latinojustice.org) - and the way we promote our work.

The LatinoJustice PRLDEF Leadership Reception is being marketed virally through more than a dozen professional association distribution lists and will unite 300 Latino professionals from all over the East Coast to celebrate the achievements of Latinos nationwide. The event is a key networking opportunity, with participants representing a myriad of top law firms and Fortune 500 companies. We’ll unveil our new Friends of LatinoJustice PRLDEF Facebook page, marking a new milestone in our outreach strategy.

Click here to register for the event.