Mechanisms That Help Reduce the Cost of E-Discovery | NJ Law Journal

No matter how vigilant, there is no way to fully insulate yourself from a potential lawsuit. It should come as no surprise that defending a lawsuit, even one where you are ultimately not liable, can be costly. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With all of the unavoidable expenses associated with litigation, in these economic times it is necessary to implement mechanisms that help curtail the cost of litigation, especially with regard to electronic discovery.

RELEVANT COURT RULES REGARDING E-DISCOVERY

Courts have recognized the importance of technological advancements in litigation by implementing rules that require parties to produce electronic information in discovery. Indeed, both the Federal Rules of Civil Procedure and the New Jersey Rules of Court (collectively, the “court rules”) require parties to produce their electronically stored information during litigation. Federal Rules 26(a)(1) and N.J. Rules 4:18-1(a).

In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support their claims or defenses prior to receiving a discovery request. Federal Rules 26(a)(1)(A)(ii). As of December 1, 2006, the term “documents” has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, the N.J. Rules provide that a party may request ESI from its adversary. N.J. Rules 4:18-1(a).

Although not formally defined in either set of the court rules, in practice it is understood that ESI includes information “created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.” “Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure,” Kenneth J. Withers, Northwestern Journal of Technology and Intellectual Property, Vol.4 (2), 171, 173. Although the most commonly requested form of ESI is e-mail, the court rules require production of electronic data in formats other than e-mail.

The court rules have attempted to provide some limitations to the production requirements of electronic discovery, presumably in an effort to achieve fairness and balance. For example, in the context of a federal case, “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Federal Rules 26(b)(2)(B). However, even with limitations, the production of ESI can be very expensive and onerous.

via Mechanisms That Help Reduce the Cost of E-Discovery.

Court Rules Communications with Attorney Using Work Computer are Protected as Privileged : Electronic Discovery Law

Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010)

In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received on a work computer.  The court held that under the circumstances presented, the employee/plaintiff did have a reasonable expectation of privacy as to emails with her attorney.  Additionally, the court remanded the case to the trial court to determine what, if any, sanctions should be imposed upon defense counsel for reading and utilizing the emails at issue, despite indications that they were protected as privileged.

Maria Stengart, plaintiff, utilized her employer-provided laptop to access a personal, web-based, password-protected email account through which she communicated with her attorney regarding her situation at work (which eventually resulted in filing a complaint).  Emails sent from her attorney indicated their privileged status.  Upon leaving her position and filing her complaint, Stengart’s former employer, Loving Care Agency (“Loving Care”), hired experts to create a forensic image of Stengart’s laptop.  The emails, which had been stored in the laptop’s temporary files, were recovered, passed on to counsel, and eventually utilized in the course of discovery.  Upon learning of defense counsel’s possession of the emails, Stengart’s counsel demanded their immediate return. Defense counsel refused, and the issue went before the court.  The superior court decided in favor of Loving Care and held that there was no breach of attorney-client privilege “because [Loving Care’s] policy placed Stengart on sufficient notice that her emails would be considered company property”.  The appellate court held that the policy upon which the trial court relied could allow an objective reader to conclude that not all personal emails were company property and reversed the trial court.  The issue was then appealed to the Supreme Court.

The Supreme Court found in favor of Stengart.  Beginning its analysis with an evaluation of the policy addressing an employee’s personal computer use, the Supreme Court determined that the scope of Loving Care’s written policy was “not entirely clear.”  The ambiguity resulted from the policy’s failure to specifically address personal emails, from the lack of warning that the contents of all emails were stored on the users’ computers and could be forensically retrieved and read later, and from the policy’s explicit statement that “occasional personal use [of email] is permitted.”  The court next considered the oft-cited policies underlying the attorney-client privilege, namely the benefit provided to the public by sound legal counsel “based on full, candid, and confidential exchanges.”

via Court Rules Communications with Attorney Using Work Computer are Protected as Privileged : Electronic Discovery Law.

Author of Accusatory E-Mails Can Stay Masked, Judge Rules in Libel Suit | Law.com

Failure to make a prima facie case that an anonymous e-mail was defamatory is grounds to quash a subpoena seeking the message-writer's identity, the Appellate Division of the Superior Court in New Jersey says.

No plaintiff “is entitled to an order unmasking an anonymous author when the statements in question cannot support a cause of action for defamation,” the court said in A.Z. (a minor) v. Doe, A-5060-08.

Monday's decision upheld — though for different reasons — a trial judge's denial of a subpoena request by a high school student who sued over a message sent to a high school counselor about underage drinking.

Both courts applied the four-prong test for unmasking anonymous online posters of defamatory material in Dendrite International, Inc. v. John Doe No. 3, 342 N.J. Super. 134 (2001).

The trial judge found the plaintiff failed to meet the fourth prong, requiring a showing that her need for disclosure outweighed the defendant's First Amendment right to anonymity. But the appeals court found she failed to satisfy the third prong, requiring prima facie evidence supporting every element of the cause of action, because she made only a minimal effort to refute the underage drinking allegation, the appeals panel said.

via Law.com – Author of Accusatory E-Mails Can Stay Masked, Judge Rules in Libel Suit.

Will Bribery Probe Hit IDT?

Howard Jonas troubled telecommunications company IDT focuses on everything from oil shale to prepaid calling cards. But this week IDT has been paying particular attention to events in a Miami, Florida courthouse.

On Monday Jean Rene Duperval, former director of international relations at Haitis state-owned telecommunications monopoly, made an appearance there after the Haitian national police arrested him over the weekend and shipped him to the U.S. The U.S. government charged Duperval with several counts of money laundering related to a bribery probe of telecommunications deals done in Jean-Bertrand Aristides Haiti.

The feds accuse Duperval of participating in a scheme that saw a Miami telecom outfit pay more than $800,000 to shell companies used to pay bribes to Haitian government officials connected to Haiti Teleco. In return, the U.S. government alleges the Miami firm got preferred telecommunications rates, reducing the number of minutes for which payment was owed, and a variety of other credits. Duperval was indicted along with two executives of the Miami firm, who were charged with conspiracy to violate the Foreign Corrupt Practices Act.

Why does IDT ? Duperval signed a carrier service agreement with the Newark, N.J.-based company while working as director of international relations at Telecommunications DHaiti, or Haiti Teleco. That agreement was filed by IDT with the Federal Communications Commission in 2007, and the FCC later slapped IDT with a $1.3 million notice for having earlier repeatedly failed to file the contract. The FCC and IDT entered into a consent decree last year on the issue that saw IDT pay $400,000.

[continued] Will Bribery Probe Hit IDT?.

Attorney-Client Privilege in Work E-Mails

There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers — reaching apparently inconsistent conclusions. This article compares and seeks to reconcile the cases, and to assist lawyers in advising clients on how to avoid the risks that such communications pose. The first of these cases, Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 N.Y. Sup. Oct. 17, 2007, was previously featured in an article in this column “Abusive Litigation Tactics and Loss of Privilege,” March 3, 2008, but is revisited here because a New Jersey court recently reached a diametrically opposite conclusion on quite similar facts, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 N.J. Super. A.D. July 29, 2009. The article also reviews other recent decisions in the same general subject area.

via Legal Technology – Attorney-Client Privilege in Work E-Mails.