One of the bodies of the emails Plaintiff supplied to Defendant in paper format is an instruction from the Defendant’s practice administrator to Plaintiff “not to discuss your employment with employees here at GFP or EHS also not to contact EEOC or any outside party”. Defendants’ alleged that the email was falsified and provided analysis from an independent forensic analyst that confirmed their suspicion. Based on the expert’s affidavit, it appears that Plaintiff changed the body of the message when she forwarded it to her personal email account to make it seem as if the practice administrator sent the damaging email. While it is difficult to change the body of a sent email without a lot of computer knowledge, it is very easy to edit the body of an email that is being forwarded. In the Connery case, the forensic expert located the original email that was used as the basis of the forwarded message and determined that it did not mention EEOC at all.

A second email presented by plaintiff in paper format and sent from one of the male Defendants to the Plaintiff states “I was told that you and Bao have your “approach” with one another after hours. I am just kidding around.” The email chain continues with plaintiff responding, “On a personal note please – please STOP!!!!!! helping/creating/talking these gossip rumors about Dr. (name ommitted) and I are having an affair, staying late after work or anything that feed the gossip fire at our office.” Once again the email was a forwarded email and Defendants expert determined that the original email used as a basis for the forwarded email contained no such language.

via Manufacturing Your Own Evidence: Lessons Learned – Electronic Discovery Blog.

iCloud allows users to store data from their devices on remote computer servers and share their files between multiple iOS devices. In addition, iCloud can be used as a data synchronization center for email, contacts, organizer events, bookmarks, pictures and other information. Various sources quote the service has as many as 125 million users as of April 2012.

iCloud backups are incremental. When set up to use the iCloud service, iPhones automatically connect to iCloud network and backup their content every time a docked device gets within reach of a Wi-Fi access point. This is to say, iCloud backups represent a fresh, near real-time copy of information stored in iPhone devices, including information about recently made and received calls, sent and received text and email messages, and so on.

Regardless of their location, iPhone backups contain essential information stored in the device. Information stored in iPhone backups includes email, accounts and passwords, call logs and text messages, calendars, appointments, contacts and organizer information. Pictures and Web browsing history including URLs of recently visited sites is also included. Information stored in iPhone backups can be essential for investigations, and is in high demand by forensic customers.

via Forensic access to iCloud backups.

The MTUs provide an extremely portable and cost-effective alternative to the typical industry approach of “copy and ship” data to an offsite facility for downstream processing.  While this approach may be suitable for some projects, it can prove challenging to cases with cross-border privacy concerns, tight deadlines, trade secrets or lack of appropriate resources.  Global EDD Group has designed the MTU services to not only alleviate these challenges of shipping data, but to do so at competive price points often comparable to using a local vendor.

Typical Usage Scenarios:

Realizing these concerns, Global EDD Group has developed specialized mobile technology units (“MTU”) that can deploy worldwide with short notice and provide a full range of self-contained electronic discovery services, including:

Global EDD Group has designed the MTU services to not only alleviate these challenges of shipping data, but to do so at competive price points often comparable to using a local vendor.   Typical usage scenario include:

Law Firms and Corporations interested in learning more about Mobile Technology Units from Global EDD Group should call +1.888.690.DATA (3282) or email info@globaledd.com for additional information. Global EDD Group also provides these services under subcontract to other industry vendors and service providers.

How it’s done

Regenerating PSTs refers to the identification, isolation and often deduplication of electronic mail (email) messages that pertain to a specific legal matter in civil litigation cases. The filtered email messages are copied to a new “regenerated” PST file. The resulting PST can be considerably smaller than the original and results in the following benefits:

1)      Quicker attorney review

2)      Electronic Discovery processing and hosting cost reduction

3)      Significantly smaller ESI collection

Practical application

PST regeneration is commonly used when there are dozens of archive (backup) PST files that contain many duplicate messages. It is a common practice for companies to set up Microsoft Outlook or Exchange servers to create daily, weekly or monthly PST backups of employee email messages.

The result is potentially dozens of employee backup PST files which contain duplicate messages. Why? Each backup will contain many of the same messages as the last. Only new emails sent or received (that have not been deleted) since the last backup will be considered “unique” to each PST. Regenerating PSTs with only one copy of each email (deduplication) significantly reduces the number of messages and the size of the PST data to be processed or produced.

via What is PST Regeneration? | Pinpoint Labs Blog.

Passlogix, Inc. v. 2FA Tech., LLC, 2010 WL 1702216 (S.D.N.Y. Apr. 27, 2010)

Upon finding that defendants spoliated relevant information, including emails, Skype messages, and computer logs, the court declined to order an adverse inference, to preclude defendants from the presentation of arguments implicating the discarded documents, or to order defendants to pay plaintiff’s costs, but ordered monetary sanctions in the amount of $10,000, after balancing “2FA’s litigation conduct with its status as a small corporation.”

In this opinion, the court addressed plaintiff’s allegations that defendants, specifically defendant Gregory Salyards, committed fraud on the court by creating and sending an anonymous email “in an effort to expand discovery, cause Passlogix competitive harm, and garner a favorable settlement.”  Defending against the accusation, Salyards proffered the affirmative defense of IP spoofing, “stating that a Passlogix employee may have ‘spoofed’ his IP address in an effort to impersonate him on the internet.”  Passlogix also sought spoliation sanctions arguing that defendants failed to implement a legal hold and took part in intentional spoliation of data, including emails and text messages.

Although beyond the scope of this summary, the court’s lengthy discussion of the anonymous email(s) and Salyards’ defense of “IP spoofing” is fascinating and showcases how ever-advancing technology has created scenarios for consideration that, not long ago, seemed more the stuff of spy novels than of litigation in our federal courts.

via Court Orders Monetary Fine for Gross Negligence and Intentional Spoliation of ESI, Including Emails, Text-Messages, and Skype Messages : Electronic Discovery Law.

I’m confused. I thought we could review our employee’s email communications when sent out on our company’s equipment. Our electronic communications policy states clearly that we reserve the right to do so.

I also thought we could review even privileged communications between our soon-to-be ex-employee and his attorney, if these communications were sent on our email system. I’m now being advised that we cannot do so. Can you offer any guidance?

My Analysis:

Your question illustrates the ongoing legal evolution in areas where advancing technology intersects employment law or affects other facets of legal analyses – here, the attorney-client privilege. Like technology itself, the law is developing and changing quickly in areas affected by technological advancements.

With respect to the issue of whether a company may review email communications of its employees, including even email communications between your employee and his/her outside counsel, I have written on this subject twice before. Happily, I am pleased to report that the advice I gave two years ago has been validated and reinforced by a recent decision from the Supreme Court of New Jersey.

The “confusion” you may be experiencing regarding this issue likely reflects the fact that this continues to be an area of the law where courts are providing mixed messages to litigants and their lawyers alike. Unsurprisingly, not all judicial decisions have adopted a uniform approach to the question of whether email communications to counsel, when sent on a company’s communications systems or computers, are protected by the attorney-client privilege.

One case that has received considerable recent attention and commentary is Stengart v. Loving Care Agency, Inc., et al., decided by the Supreme Court of New Jersey on March 30, 2010. Stengart is a thoughtful opinion and highlights many of the issues that you should consider in evaluating your unique fact pattern.

via Lexology – Reviewing employees’ email.

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Today’s email posed the question in the title of this post and featured an article from the New York Times by Natasha Singer called ”Shoppers Have No Secrets.”   The article details the technology of “behavioral tracking” by retail and advertising businesses and how the Federal Trade Commission (FTC) is playing catch up when it comes to regulating this technology.

Online behavioral tracking has been a hot button issue for both businesses and privacy rights groups for a few years.  Natasha’s article lists several types of new tracking to include:

Cameras that can follow you from the minute you enter a store to the moment you hit the checkout counter, recording every T-shirt you touch, every mannequin you ogle, every time you blow your nose or stop to tie your shoelaces.

Web coupons embedded with bar codes that can identify, and alert retailers to, the search terms you used to find them.

Mobile marketers that can find you near a store clothing rack, and send ads to your cellphone based on your past preferences and behavior.

The article is a very good summary of the issue and has links to advocacy groups on both sides of the debate.  The article also highlights the differences between European and US based privacy laws. In general, the EU is far more advanced and stringent when it comes to personal data protection.

In the US, the FTC publishes guidelines and takes enforcement action under its authority to regulate unfair trade.  There are also the states’ Attorney Generals and class action and individual lawsuits.  Nevertheless, to answer the question I posed in this post, it is clearly a “NO” in the US.   Data protection laws will not catch up to new technology. At least, not anytime soon.

via Will Data Protection Laws Ever Catch Up To New Technology? : Connecticut Business Litigation Blog.

A few really interesting iPhone apps were recently released that could prove very useful to lawyers, each incorporating speech to text dictation into their platforms in various ways.

The first, and my personal favorite, is Siri. Siri is a free iPhone app designed to be your personal assistant. The app provides a wide range of information, from the local weather, nearby restaurants, movie listings and times, to details about local events. You can even check a flight’s status or book a taxi. Simply speak into your iPhone or use Siri’s intuitive interface to type in your requests.

In addition to providing the specific information, such as an address or the start time of a movie, Siri provides an assortment of ratings and reviews from a number of websites, thus making it easier for you to choose a restaurant or movie.  And for attorneys who tweet–Siri just added a new feature that allows you to send a status update to Twitter by dictating it into your phone.

If you’re in the market for a basic speech to text dictation tool that works quite well, the free Dragon Dictation app is for you. Simply speak into the phone and your words are instantly transcribed. The text is fully editable with the additional functionality of “copying” to a clipboard, text message or into an email.

Finally, Vlingo is another voice command app worthy of note. Using the free version of Vlingo, you can tell the app to search Google maps, update your Facebook or Twitter statuses, search the Web, or initiate a phone call to one of your contacts.

Using the paid versions of Vlingo you can dictate an email or text message. However, Vlingo goes one step further than the Dragon Dictation app and allows you to dictate not only the content of the message, but also the name of the contact, and if it’s an email, the subject of the email. The SMS and email features cost $6.99 apiece or you can purchase both for $9.99.

All 3 of these apps are must-haves for busy attorneys. Each has the potential to transform your iPhone into an information gathering and transmitting voice command center. Imagine the possibilities!

via Apple iPhone Apps for Lawyers | Virtual Data Rooms – Online Document Management & Collaboration | Firmex.

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