Court

Will New Electronic Discovery Rules Save Organizations Millions or Deny Justice? – Forbes

November 8, 2011 By Global EDD Group Leave a Comment

Special Post by Matthew Nelson, Esq.

Lawyers and federal judges are currently discussing a formal proposal to amend the Federal Rules of Civil Procedure (“Rules”) that could save some organizations millions of dollars. The Rules are significant because they dictate the procedures every party in federal civil court must follow when negotiating the exchange, or discovery, of documents and other information as part of a lawsuit. Sometimes Rule changes simply include minor modifications to add clarity. Other times, Rule changes like those being considered at this week’s Federal Rules Advisory Committee (“Advisory Committee”) meeting on November 7 and 8 in Washington, D.C., are potentially game changing.

A recent jury verdict for almost $1 billion following a court-ordered eDiscovery sanction, combined with a steady overall increase in eDiscovery related sanctions since last year, have helped fuel enterprise concerns about the cost of data preservation. See E.I. Dupont De Nemours and Company v. Kolon Industries, Inc., (E.D. Va. Jul. 21, 2011); and Gibson Dunn, “2011 Mid Year E-Discovery Update” (July 2011) (eDiscovery related sanctions nearly doubled between July 2010 and 2011). As a result of these concerns, many large organizations with massive amounts of electronically stored information (“ESI”), are calling for Rule changes. They are looking to curb the cost of identifying and preserving potentially relevant ESI that could help them avoid paying attorneys millions of dollars to sift through mounds of emails and other electronic files to find the right documents for each new case. These large enterprise litigants claim the lack of clarity in the current Rules unfairly requires organizations to err on the side of preserving evidence early and broadly or face the risk of stiff court sanctions if information that may have been relevant to a case is lost or deleted. They see the problem as a double-edged sword because in many cases, the more ESI preserved, the higher the costs of eDiscovery. On the other hand, failure to preserve enough ESI increases their risk of sanctions.

continued @ Will New Electronic Discovery Rules Save Organizations Millions or Deny Justice? – Forbes.

Filed Under: From The News Tagged With: Court, court sanctions, discovery rules, ediscovery, Electronic, information, Organizations

Samsung, Google benefit from ruling in patent fight with Apple – The China Post

November 8, 2011 By Global EDD Group Leave a Comment

A German court’s recent decision to ban the sale of Apple products in Germany dealt a blow to the U.S. tech giant, while offering a positive outlook for Google’s Android alliance.

Munich-based patent expert Florian Mueller said the Mannheim Regional Court in Germany on Friday barred Apple from selling any mobile devices infringing on two Motorola Mobility patents in the country — the single largest market in Europe.

The court also determined that Apple owes Motorola Mobility, which is now owned by Google Inc, damages for past infringements since April 2003, and Apple may be banned from selling wireless devices until the court reaches a second decision, Mueller wrote on his blog “FOSS Patents.”

via Samsung, Google benefit from ruling in patent fight with Apple – The China Post.

Filed Under: Tech Bytes Tagged With: apple products, Benefit, china post, Court, fight, google inc, Mobility, Motorola, patent fight

Current Listing of States That Have Enacted E-Discovery Rules : Electronic Discovery Law

October 19, 2011 By Global EDD Group Leave a Comment

More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions.

complete list: Current Listing of States That Have Enacted E-Discovery Rules : Electronic Discovery Law.

Filed Under: From The News Tagged With: Court, discovery law, discovery rules, Electronic, electronic discovery, information

Identification and Disclosure of electronically stored information | webanalyticsworld.net

October 4, 2011 By Global EDD Group Leave a Comment

Under English or American law (or any other common law system), you or your company may be ordered by a court to identify and disclose not just physical documents but also electronically stored information (ESI) as part of a litigation process. This could apply to you even if you are not a party to the court proceedings.

Location of the ESI

Data is often stored or replicated in an external hosting centre or within a software application – particularly in relation to SaaS software, or in a corporate data centre. If numerous data centres are used they are usually in different physical locations which could be in various countries. The court order to disclose data may well conflict with compliance and privacy requirements in relation to data in the countries in which the data is actually held. However for the purposes of complying with a court order the actual location of the data and the local rules applying to the storage of the data cannot be used as a reason to refuse disclosure.

For example in AccessData Corporation v ALSTE Technologies GmbH a US court ordered a German company to disclose emails stored in Germany as part of the disclosure process in a court case, although the company argued that this breached the German Data Protection Act.

via Identification and Disclosure of electronically stored information.

Filed Under: Tech Bytes Tagged With: Centre, Court, data protection act, esi data, german data, information, law, physical documents

Dutch court bans Samsung Galaxy S, SII and Ace in Europe starting Oct. 15 – Computerworld

August 24, 2011 By Global EDD Group Leave a Comment

A court in The Hague on Wednesday banned the shipping of three Samsung Galaxy smartphones to Europe as of Oct. 15, ruling that the company has infringed an Apple photo management patent.

The Samsung Galaxy S, SII and Ace were banned because Samsung infringes on Apple’s EP 2.058.868 patent, the court found. The patent is titled “Portable Electronic Device for Photo Management” and describes a way to scroll through a photo gallery using finger gestures on a touchscreen.

Samsung infringes the Apple patent by using Android 2.3 in the three phones, according to the ruling by Judge E.F. Brinkman. Android 3.x that is used for tablets does not infringe this patent. The patent issue can be fixed by updating the Android software on the phones to Android 3.x, Samsung said in court earlier this month and that point was also noted by the judge in the ruling.

via Dutch court bans Samsung Galaxy S, SII and Ace in Europe starting Oct. 15 – Computerworld.

Filed Under: Tech Bytes Tagged With: Apple, Court, Hague, Oct, ruling

E-Discovery: 9 points impacting discovery costs | InsideCounsel.com

August 23, 2011 By Global EDD Group Leave a Comment

Some of the important trends include:

Discretionary Cost-Shifting. While the federal rules are silent on who should bear the cost of retrieving “inaccessible data,” certain states (e.g. Texas) require that a judge order a party requesting inaccessible data to incur the cost of producing it. Other states (like California and Mississippi) give the judge the option to shift the cost of producing “inaccessible” ESI. Given that the retrieval and production of “inaccessible data” can easily run cost hundreds of thousands of dollars, the discretion (or obligation) to shift those costs can have a significant impact on the litigation budget.

The Meet and Confer. Some states (like New York and Delaware) have made the “meet and confer” the cornerstone of their methodology for managing e-discovery, while other states have abandoned the requirement altogether. Do not miss this opportunity to seize control of the e-discovery process. Skipping an early “meet and confer” may appear to save money and avoid the aggravation of dealing with the “unreasonable” opposition; however, more progressive literature on e-discovery suggests that the “meet and confer” actually saves costs in the long-run and helps insulates the parties against the risk of e-discovery “do-overs” and even more severe sanctions.

Safe Harbor. Federal Rule of Civil Procedure 37(e) forbids a court from ordering sanctions against a party who has destroyed potentially relevant ESI “as a result of the routine, good-faith operation of an electronic information system.” Although practitioners debate how “safe” the harbor really is in federal courts, several states have eliminated the “safe harbor” altogether. This means that litigation holds in state courts should be implemented as soon as litigation is reasonably anticipated.

Sanctions. It also is important to know what activities (or failure to act) will prompt the court in your jurisdiction to levy sanctions. Counsel should not assume (especially in states that don’t follow the federal rules) that state courts will levy sanctions in the same manner and for the same conduct as federal courts. This analysis will inform your discovery strategy and help insulate against the risk of state court sanctions.

via E-Discovery: 9 points impacting discovery costs.

Filed Under: From The News Tagged With: com, Court, federal rule of civil procedure, Good faith, harbor, inaccessible data, InsideCounsel, State

‘Every touch leaves a trace’: how Google helped track bomb hoax suspect

August 17, 2011 By Global EDD Group Leave a Comment

Google and ISPs in Australia and the US would have surrendered information to NSW Police enabling them to track down Paul Douglas Peters, the man who allegedly strapped a fake bomb to Madeleine Pulver’s neck on August 3, forensic experts say.

It was revealed overnight through an unsealed US court document that the Google Gmail account dirkstraun1840@gmail.com was placed on a note attached to Ms Pulver’s neck on August 3. Dirk Struan is the main character in James Clavell’s 1966 novel Tai-Pan, about a bitter rivalry between powerful traders in Hong Kong after the end of the First Opium War.

The same note was contained on a USB drive attached to a lanyard put around Ms Pulver’s neck.

The account was allegedly created as a way of Ms Pulver’s family contacting Mr Peters to hand over a sum of money and was set up on May 30, the document said, months before the attack on the 18-year-old girl from Mosman in Sydney.

“The police conducted an investigation regarding the Gmail account and determined the account had been established on May 30, 2011, from an Internet Protocol (IP) address linked to Chicago Airport,” a court document, filed by a US attorney, said.

The court document also stated that travel documents obtained by the police from immigration authorities indicated that Mr Peters was at Chicago Airport on May 30 and said that authorities had matched three subsequent logins to access the Gmail account from IP addresses in Australia.

via ‘Every touch leaves a trace’: how Google helped track bomb hoax suspect.

Filed Under: Tech Bytes Tagged With: Court, document, gmail, google gmail account, neck, track

Foreign Applicant’s Request for Secret Access to Foreign Debtor’s Emails “Manifestly Contrary” to U.S. Public Policy : Electronic Discovery Law

July 29, 2011 By Global EDD Group Leave a Comment

In re Toft, No. 11-11049 (ALG), 2011 WL 3023544 (Bankr. S.D.N.Y. July 22, 2011)

In this case, a foreign applicant, Dr. Martin Prager, sought recognition and enforcement of a German court’s “Mail Interception Order” which authorized Prager, as insolvency administrator, to intercept the debtor’s postal and electronic mail. The court, following its determination that there was a sufficient basis to exercise jurisdiction, denied the application upon finding that the relief requested was manifestly contrary to U.S. public policy.

In the course of proceedings before the Munich District Insolvency Court, a “Mail Interception Order” was issued which authorized Prager, as administrator of the German estate, to intercept the debtor’s postal and electronic mail. Prior to application for recognition of the order in the United States, Prager applied for and was granted recognition and enforcement of the order by the English High Court of Justice. Because two of the debtor’s email accounts were stored on servers of ISP providers located in the U.S., Prager then initiated action in the Southern District of New York asking the court to “‘grant comity’ to the orders of the German and English Courts and enter an order . . . compelling the ISPs . . . to disclose to Prager all of the Debtor’s emails currently stored on their servers and to deliver to Prager copies of all e-mails received by the debtor in future.” (Emphasis added.) Further, Prager requested that the order be enforced without notice to the debtor.

via Foreign Applicant’s Request for Secret Access to Foreign Debtor’s Emails “Manifestly Contrary” to U.S. Public Policy : Electronic Discovery Law.

Filed Under: From The News Tagged With: Court, discovery law, Electronic, electronic discovery, electronic mail, Emails, recognition, request

DOJ: We can force you to decrypt that laptop | CNET News

July 11, 2011 By Global EDD Group Leave a Comment

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution’s Fifth Amendment, which broadly protects Americans’ right to remain silent.

In a brief filed last Friday, Fricosu’s Colorado Springs-based attorney, Philip Dubois, said defendants can’t be constitutionally obligated to help the government interpret their files. “If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?”

To the U.S. Justice Department, though, the requested court order represents a simple extension of prosecutors’ long-standing ability to assemble information that could become evidence during a trial. The department claims:

Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

Prosecutors stressed that they don’t actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding “the password to the drive, either orally or in written form.”

The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled “Compelled Production of Plaintext and Keys.”)

via DOJ: We can force you to decrypt that laptop | Privacy Inc. – CNET News.

Filed Under: Tech Bytes Tagged With: Court, DOJ, evidence, financial crimes, news, Search warrant, search warrants, U.S. Constitution

Connecticut Law Tribune: ADR: Too Much Like Litigation? Do Something About It | Law.com

June 18, 2011 By Global EDD Group Leave a Comment

It is all the rage these days to complain that arbitration has become too much like litigation. Arbitration takes too long. It is too expensive. It involves too much discovery. It requires too many briefs. It takes too much time to schedule a hearing and too much time to get a decision. It has acquired all the detriments of court litigation but without the right to appeal. Complaints of this sort abound.

In many respects, such complaints are valid. At least they accurately reflect the reality of how many arbitrations are conducted these days, under the governance of various sets of rules used by many arbitration providers.

But those rules are creatures of contract. They apply only because the arbitration covenant in the parties’ underlying agreement – or the arbitration covenant upon with the parties agreed after the dispute arose – say they shall apply.

Parties are free to agree on different rules. There are actually many options in the marketplace for streamlined or modified rules that eliminate many of these problems. Further, the parties are free to modify any set of arbitration rules in a way that eliminates unwanted elements. The parties’ arbitration agreement, whatever its particulars, must be enforced as written.

via Connecticut Law Tribune: ADR: Too Much Like Litigation? Do Something About It.

Filed Under: From The News Tagged With: agreement, arbitration, arbitration agreement, arbitration rules, com, connecticut law tribune, Court, litigation arbitration