Authored By: Jessica K. Rauskolb

Citation: In re Grand Jury Subpoenas, 627 F.3d 1143 (9th Cir. Cal. 2010)

Employee/Employer Implicated: Government official, Outside counsel, Miscellaneous

e-Lesson Learned: Non-privileged information originating outside the U.S. that you had to produce as a result of discovery from a civil antitrust suit can get into the hands of a grand jury and be used against you in an antitrust investigation.

Tweet This: Note, discovery in civil litigation can move information within the grasp of the grand jury - and there is nothing you can do about it.

Be careful when you defend a civil suit that was triggered by a government investigation! When you respond to discovery requests and produce material which was previously not within the reach of the grand jury, the government can subpoena these documents! A civil protective order will not do you any good! The defendants in In re Grand Jury Subpoenas had to find that out the hard way.

Authored By: M.J.R.

Citation: Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc., 2010 WL 4789275 (N.D. Ind., Nov. 17, 2010)

Employee/Employer Implicated: Outside Counsel, In-house Counsel, Senior Management, information technology manager

e-Lesson Learned: Discoverable data must be produced in a reasonably usable form in which it is ordinarily maintained and not in a format more difficult for the requesting party to use in litigation.

Tweet This: Indiana Court hands down a harsh punishment for shady electronic discovery practices!

Not only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data. It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services. The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.

Authored By: Drew Manaray

Citation: In re Stern, 321 S.W. 3d 828 (2010); 2010 Tex. App. LEXIS 7382

Employee/Employer Implicated: PLaintiff

e-Lesson Learned: Discovery is generally construed very broadly by courts, but a line will be drawn when requests are overbroad or irrelevant. This is true with electronic production requests as well.

Tweet This: Just because you are attempting to compel production of electronically stored information does not entitle your requests to be overly broad!

­­­­­­­­­­­­­­­­­­In In re Stern, Virgie Arthur, mother of the late Anna Nicole Smith, alleged that Howard K. Stern, Smith’s former attorney, and others in the media (particularly television and internet gossip programs) had engaged in a conspiratorial effort to defame her and harm her efforts to maintain custody and visitation rights of Smith’s daughter. Arthur challenged Stern’s assertion that he was father to Smith’s newborn daughter, thereby causing Stern to engage in a conspiracy in which his sister, Bonnie, as well as additional parties (Nelda Turner, Lyndal Harrington and Theresa Stephens) found “dirt” on Arthur and then posted it on the internet. Further, Stern and his alleged conspirators had provided gossip website TMZ with a tape and transcript of an interview in which Smith accused Arthur of “being complicit in child abuse” committed against Smith when she was a child.

Authored By: Gina Barbieri

Citation: Oxxford Information Technology, Ltd. v. Novantas LLC, 2010 N.Y. App. Div. LEXIS 8496 (N.Y. App. Div. 1st Dep't Nov. 16, 2010).

Employee/Employer Implicated: Owner/Executive, information technology manager, C-level executive, owner, counsel (in-house & outside counsel)

e-Lesson Learned: The best way to protect trade secrets and other discoverable information is through a bargained for confidentiality agreement, which will likely be upheld in its original form

Tweet This: “If you bargain in favor of your privacy, you won’t fall victim to a bait-and-switch”

When confidential business information comes into play, it is imperative that parties diligently bargain to protect their interests. Once an agreement is reached the parties will be expected to uphold their side of the bargain based on the other side’s reliance.

Authored By: Michael Tucker Jr.

Citation: Orbit One Communs. V. Numerex Corp., 2010 U.S. Dist. LEXIS 123633 (S.D.N.Y. 2010)

Employee/Employer Implicated: Information Technology Administrator; Outside Counsel; Owner/Executive

e-Lesson Learned: Mere inadequacy of preservation efforts does not warrant sanctions unless it can be shown that discovery-relevant evidence has been lost. Despite that, it is better to adequately prepare for and execute a proper litigation hold than rely on dumb luck and coincidence to avoid sanctions.

Tweet This: Plaintiff not sanctioned for ESI preservation failures when comprehensive failures did not actually result in lost evidence.

In 2006, Numerex, a satellite communications company, began attempts to acquire Orbit One, which was owned by David Rosen, Scott Rosenzweig and Gary Naden. These negotiations resulted in an asset purchase agreement signed in July 2007, under whose terms Rosen, Rosenzweig, and Naden would continue on with Numerex, with Rosen becoming president of the new division. Around the same time Naden’s former company, Axxon initiated suit against Orbit One and Orbit’s attorneys ordered a litigation hold to ensure preservation of information relating to that controversy.

Authored By: Fernando M. Pinguelo

We are pleased to announce that “A Primer on Cybercrimes In The United States and Efforts to Combat Cybercriminals – 50 State and Federal Cyber Law and Proposed Legislation Survey,” authored by Fernando Pinguelo and Bradford Muller and published by the Virginia Journal of Law and Technology (University of Virginia School of Law, Spring 2011) is now available. Join us on June 8, 2011 as we present our comprehensive article at the Cybersecurity Law and Policy: Changing Paradigms and New Challenges conference sponsored by the Cybersecurity Law Project, Seton Hall University School of Law, Newark, New Jersey. Attendance to the conference is free (and CLE credits are available), but you must register here. The conference will feature seven break-out sessions and a keynote presentation by Melissa Hathaway, Senior Advisor of Project Minerva at the Belfer Center for Science and International Affairs, John F. Kennedy School of Government, Harvard University, and former Acting Senior Director for Cyberspace at the National Security Council for both Presidents George W. Bush and Barack Obama. Panelists include: Ø Renato Opice Blum is the Chief Executive Officer of Opice Blum Advogados Associados in São Paulo, Brazil Ø Howard W. Cox is the Assistant Deputy Chief of the Computer Crime and Intellectual Property Section of the Criminal Division of the U.S. Department of Justice Ø Abel Ebeid, Chief Information and Technology Officer for the State of New Jersey Ø Sean Kanuck, National Intelligence Officer for Cyber Issues for the National Intelligence Council within the Office of the Director of National Intelligence Ø Gerard McAleer, Associate Director of the New Jersey Office of Homeland Security and Preparedness Ø John Molinelli, Bergen County Prosecutor, Hackensack, New Jersey Ø Fernando M. Pinguelo, Partner, Norris McLaughlin & Marcus and co-Chair of Response to Electronic Discovery & Information group Ø Bradford Muller, Associate, Norris, McLaughlin & Marcus and member of the Internet Law group

Authored By: Christopher Dize

Citation: Ahroner v. Israel Discount Bank of New York, etc., et al., 2010 N.Y. App. Div. LEXIS 9087 (Dec. 7, 2010).

Employee/Employer Implicated: Banks, Management, and Attorneys

e-Lesson Learned: Keep your eye on who’s doing what . . . you just might lose your hard drive.

Tweet This: NY Appellate Division Affirms Spoliation Sanctions

In 2002, bank employee Jacob Ahroner was not happy with his employer, Israel Discount Bank of New York. Consequently, in July 2003, he brought suit, alleging hostile work environment and discrimination based on race, age, and national origin. In November 2002, seven months prior to filing the action, however, Ahroner’s attorney wrote to the Bank. The letter informed the Bank that it was “placed on notice that [it] must undertake all efforts to preserve from spoliation all documents and other records relating to our client’s employment, as well as any unlawful conduct of [the Bank] or its employees. As you may be aware, spoliation gives rise to an inference and instruction that the missing documents would have proved the charging party’s case.” The Bank replied that it was aware of its obligations.

Authored By: Mallory Griffin

Citation: Dzung Chu v. Oracle Corp. (In re Oracle Corp. Secs. Litig.), 627 F.3d 376, 386 (9th Cir. Cal. 2010)

Employee/Employer Implicated: Upper Management

e-Lesson Learned: Failure to preserve electronic documents could lead a Judge to grant your adversary an adverse inference on what those missing documents may or may not have said.

Tweet This: “Do you want a jury making inferences about what your emails may or may not have said?”

“STOP PUTTING WORDS IN MY MOUTH” is something you might expect to be screamed during a typical fight on the Jersey Shore. However, if you are not careful complying with electronic discovery requests – you’re going to have a “Situation” in the form of a big fat SANCTION that leaves you saying, “but that’s not what my emails said.” What can no longer be seen, found, or read can’t hurt you – right? WRONG. Failing to preserve documents can easily come back to bite you in the ass. Be careful with the documents you have, but don’t be quick to cast aside those you claim are missing or destroyed.

Authored By: Michael Paragano

Citation: Daugherty v. Murphy, 2010 U.S. Dist. LEXIS 124753 (S.D. Ind., Mar. 31, 2009)

Employee/Employer Implicated: Misc. Employee, Experts, Data Analyst

e-Lesson Learned: If an expert asks for certain discovery from the opposing side, they will not automatically receive everything they want if the benefits and importance of that discovery are outweighed by heavy time and expense of compiling that data.

Tweet This: Tough Luck! Listen to Mick Jagger!

You can't always get what you want You can't always get what you want You can't always get what you want But if you try sometimes you might find You get what you need… Or you may NOT! Simply wanting data in discovery and getting that data are two completely different things. Be careful that the data you are requesting is not overly burdensome and it’s truly important to the issues at hand. (“Continue Reading…”)

Authored By: Michael Zoller

Citation: Estate of Thomas G. David v. Claudia Spriggs, LexisNexis® 2010 Ohio App Lexis 4817, 2010 WL 4817348 (C.A. Ohio)

Employee/Employer Implicated: Ex-Husband and Ex-Wife

e-Lesson Learned: When evidence is potentially located on a computer it is in the Plaintiff’s best interest to make sure that any Evidence Eraser program on the computer is turned off.

Tweet This: Sexy photos on the Internet ≠ clear and convincing evidence of contempt

A photo may be worth a thousand words, but that does not mean its clear and convincing evidence. While married the defendant took intimate photos and videos of the plaintiff. Upon divorce the plaintiff wanted to make sure those photos were not made public, so she got a court order forbidding them from being distributed. Now those photos and videos have reached the Internet and the plaintiff wants justice.