N.J. Ruling on Workplace E-Mail Privacy Sure to Impact Forensics

Back in June 2009, I posted about Stengart v. Loving Care Agency, et al., a New Jersey appellate decision that found an expectation of privacy in remnants of an employee's e-mail with her counsel found on a workplace computer.  This, despite a company policy advising employees that they shouldn't expect any (okay, not much) privacy.  I thought it a case that would resonate beyond the Garden State.  Now, I'm sure of it.

Yesterday, the New Jersey Supreme Court upheld Stengart, issuing a thoughtful opinion making it clear that the information was not only privileged but that the lawyers who sought and used the information now face discipline and possible disqualification. 

The So Called "Conflict" Between Judge Scheindlin and Judge Rosenthal is Just Fake News

I for one am tired of all the newscasters on TV screaming BREAKING NEWS all of the time over every little thing. TV News has become bogus theatre half of the time, and it is getting harder to tell which half is which. If only reliable Walter Cronkite type of reporting would come back, but then that would be bad for ratings. News is just entertainment, and poorly funded at that. Now this tendency towards sensationalist fake-news is starting to spill over into e-Discovery. The law, and those of us who dare to report and comment on the law, should be exemplars of truth and honesty and not stoop to this. We should emulate Walter Cronkite, not the latest screaming head on cable TV.  

I am sorry to ruin the battle-of-the-judges parade, but there is no big conflict between Judge Scheindlin's Pension Committee v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), and Judge Rosenthal's Rimkus v Cammarta, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010). There is no fight between these two scholars of procedure as some sensationalists would have you believe. This is just a common example of like-minds examining different factual scenarios in different jurisdictions. My blog this week throws water on the sensationalist reports and explains res ipsa loquitur too. It will never make primetime news, but I think Walter would approve. To continue reading, see: Judge Rosenthal v. Judge Scheindlin: A Bogus Battle. That's the way it is.

Equivalent Data NeedleFinder 4

Equivalent Data (www.equivalentdata.com) has debuted its NeedleFinder 4.

Release here.

An Open Letter to Judges About Computer Forensic Exams

 Your Honors:

I just read another opinion where the Court decided to let one side's computer expert examine an opposing party's computers. The Court seemed more concerned with who would pay for the exam than what its consequences might be.

I'm a lawyer and computer forensic examiner, and I make part of my living doing just the sort of examinations the court ordered.  I've done a whole bunch of them.  So, while part of me wants to encourage courts to order more forensic exams — and I can surely attest to their efficacy in resurrecting data thought gone and exposing case-making evidence — the angel at my ear requires me to softly whisper, "WHAT THE HECK WERE YOU THINKING, JUDGE?!? 

Why didn't you use a neutral?

I could say, "You never know what a computer forensic examiner will find," except I KNOW what we find: We find trouble.

DRI Webcast re: Pension Committee and Rimkus

As you know, preservation of electronically stored information is a critical issue.  Litigation holds have been the linchpin of some of the most recent headline grabbing e-discovery cases.DRI’s E-Discovery Committee is hosting a 90 minute webcast on April 14, 2010 discussing litigation holds entitled:Are Written Litigation Holds Required to Avoid Sanctions in Federal Court? .

Presenters are James K. Lehman, former chair of DRI’s E-Discovery Committee; and myself, author of 7 Steps for Legal Holds of ESI and Other Documents (ARMA 2009) and a website devoted to ESI preservation issues here.

Two recent opinions by influential judges already famous for their contributions to e-discovery have altered the e-discovery landscape.This webcast will explain how some federal judges are requiring written litigation holds in the preservation of ESI. Judge Shira Scheindlin revisited her seminal Zubulake opinions to sanction minor litigation hold failures in Rimkus Consulting Group, Inc. v. Cammarata (S.D. Tex. 2010).

Law.Com's Legal Hold Series Links

Thank you to www.ediscoveryreadingroom.com for the following kind post and links to all eight parts in the Law.com series:

Legal Holds: a great series of primers from John Isaza and John Jablonski

A litigation hold is as an affirmative act by an organization to prevent the destruction of documents, including ESI and paper relevant to a lawsuit.   Law.com recently published a series of articles that provide an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the ”Seven Steps for Legal Holds of ESI and Other Documents” (ARMA International 2009) by John Isaza and John Jablonski.   The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds. Here are links to each part of the series:

Step 1 for Legal Holds: Trigger Events
Step 2 for Legal Holds: Analyze the Trigger Event
Step 3 for Legal Holds: Define the Scope
Step 4 for Legal Holds: Implementation
Step 5 for Legal Holds: Enforcement
Step 6 for Legal Holds: Modification
Step 7 for Legal Holds: Monitor and Remove  
Oversight: Overseeing the Steps for Legal Holds

We added the link to the Oversight article.  The original post from The E-discovery Reading Room is available here.

Digital Reef Launches Early Case Assessment Tool

Digital Reef (www.digitalreefinc.com) has introduced its early case assessment program. Part of the company's Virtual Governance Warehouse software, the program is capable of indexing and analyzing 10 TB of data per day.

Release here.

Gallivan Gallivan & O'Melia Offers SaaS-Based EDD Program

Gallivan Gallivan & O'Melia (www.ggollc.com) plans to launch a Software-as-a-Service version of its Digital WarRoom e-discovery program next month.

Release here.

Despite Blocking Statute, Court Compels Production

Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010)

Plaintiff sought to compel the production of documents and information regarding defendants’ Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank’s New York Agency (“UOB NY”).  UOB NY was not a party to the underlying action, nor was its parent company. Despite substantial evidence that production of the requested information was prohibited by Malaysian law and that violation of the law could subject a person to civil and criminal penalties, the court concluded that compliance with the subpoena was warranted and ordered UOB NY to produce the information within two weeks.

Read the entire post here at ediscoverylaw.com.

Virtual LegalTech

Want to learn about the latest legal technology trends, issues, products, and services -- and earn CLE credit in the process? This Thursday (March 18) you can attend Virtual LegalTech, without all those annoying TSA security checkpoints, horrible coach seats, or worrying about the East Coast's eternal winter. And the best news: It's all free.
   Virtual LegalTech is our online complement to our live LegalTech shows in New York and Los Angeles. From the comfort of your office or home, you can enjoy a full day of free live webcasts and CLE-accredited seminars. Among the topics that are eligible for the grail of continuing legal education credits are panels on Amending the Federal Rules of Civil Procedure; Use of E-Discovery Technology in Federal Court: A Case Study; Developing a Comprehensive and Legally-Sound Social Media Policy; and Outlook Integration: The Lawyer's Outlook.
  

Applied Discovery Unveils Review Module & Blog

Applied Discovery has released a Review Performance Module. Press release here.

AD also has launched a new namesake blog.

Integreon Webinar Focuses on Backup Tapes

On April 8 Integreon is expected to host a webinar explaining how to preserve, assess, and produce electronically stored data from backup tapes.

Release here.

Seminar: EDD & Entertainment/Media Industries

The Association of Media and Entertainment Counsel is expected to host a seminar discussing the affects of e-discovery on the entertainment and media industry on March 10 at the UCLA Anderson School of Business.

Release here.

CT Summation Cloud Computing Webinar

On March 11, CT Summation and Wave University will host a webinar about the potential affects computing in the cloud can have on privacy, disclosure, and discovery.

Release here. 

New Catalyst Blog

Robert Ambrogi, who writes Law Technology News' Web Watch column, recently has been working with Catalyst Repository Services and its CEO, John Tredennick, on a few projects related to building out CRS' website and developing content. (Because of the new assignment, he won't cover CRS or its competitors in the column.)

"One task we completed this week was to launch a Catalyst blog: John and other key people in the company will contribute to it, as will I from time to time."

Check it out!

Atlas Information Governance Suite 5.0

PSS Systems says its Atlas Information Governance Suite 5.0 has been released. The company also created a new framework,  Information Governance Process Maturity Model, for organizations to benchmark EDD and information management processes.

Release here.

Index Engines Updated

Index Engines has expanded the capability of its namesake program to provide content and metadata indexing, search and extraction support for Lotus Notes e-mail, and support for discovery of all e-mail and unstructured data backed up with CommVault and UltraBac.

Release here.

Judge Andrew Peck & Craig Ball Discuss Costs

Magistrate Judge Andrew Peck and Craig Ball share their discussion about Ball's column in the February issue of Law Technology News: (Feel free to dive into the discussion).

Judge Peck:
Craig, I read your article re: recoverable costs with interest (I always enjoy your articles). However: at least in the Southern District of New York (and I believe most federal courts), recoverable court costs for copies have traditionally been limited to copying trial exhibits (or getting records certified or similar costs not relevant to your article).

Thus, if a party produced 10,000 pages in discovery, that copying cost would not be recoverable -- but the cost of copying the 100 trial exhibit pages would be.

So I see very little opportunity to recover e-discovery costs via Rule 54 and 28 USC.

Am I missing something?

Craig Ball:
Your Honor, thanks for the kind note.; You're not missing anything.I see that in the SDNY, the rules are interpreted in a very conservative way to shift little expenditure as costs. But, this is by no means standard, and it's the unpredictability among the circuits that moves me to argue that the subject needs to be sensibly standardized, especially where we are talking about big bucks (and with e-discovery, what other discussion is there?).

Losey & Baron Search Debate, Judged by Grimm

At LegalTech New York a few weeks ago, Jason R. Baron and I staged a debate over search strategies and cooperation ethics. I have now written a detailed article on the debate topics with analysis and background information. It is called The Multi-Modal “Where’s Waldo?” Approach to Search and My Mock Debate with Jason Baron. 

As usual I stir up the pot with my blog and conclude with criticism of the movements underfoot to change the rules again, or drastically reduce e-discovery, or do away with it altogether. That is not the solution to over-expensive discovery. The solution, as I explain in the article, is smarter, more cooperative search. I also criticize those vendors and experts who still promote last century's keyword search models resulting in over-retrieval and over-review. I don't name them, but we all know who they are. But I go beyond just criticism and offer a specific proposal called the multi-modal Where's Waldo? search method. Don't know what this means yet? Read the blog and find out. Only last century losers still play Go Fish keyword guessing games. All the cool kids are now playing electric Waldo.

Merrill Lextranet 5.9 Debuts

Merrill Corp. has debuted Merrill Lextranet 5.9 case management system, which incorporates analytics intended to speed document reviews by organizing documents around key terms, concepts, and information.

Release here.

Exterro Introduces Cloud Legal Hold

Exterro has introduced its Fusion Cloud Legal Hold, a software-as-a-service-based (SaaS) legal hold system that provides automated hold notifications and creates audit trails and reports to help firms avoid sanctions.

Release here.

ZyLab Upgrades eDiscovery & Production (and goes Saas)

ZyLab says its  eDiscovery & Production software has been upgraded, and announced that it is now offered as a SaaS.

Release here.

Discovery Cracker 5.5

CT Summation has introduced Discovery Cracker 5.5 software, which includes improvements to data reporting tools.

Release here.

3 Offerings From Catalyst Repository Systems

Catalyst Repository Systems has released three new offerings  including its Catalyst Power Search, Catalyst Remote Desktop, and Catalyst Fast Track Processing and Loading services.

Release here.

StoredIQ Launches Analyze Anywhere

 StoreIQ has released its early case assessment program StoredIQ Analyze Anywhere, which helps users analyze a case prior to the preservation and collection stage of the e-discovery process.

Release here.

Lateral Data's Viewpoint 4.5

Lateral Data has debuted Viewpoint 4.5, an e-discovery program that can be used as a hosted service or installed in-house. Release here.

Housekeeping...

Howdy,

A few housekeeping items:

1. I'm delighted to introduce our two new Law Technology News staffers, news editor Dan Howley & editorial assistant Heather Schultz. They will have an increasing presence as authors on this blog!

2. You may have noticed that we have removed vendors from the Blog Roll and EDD Website lists. Some were a bit difficult to ascertain if the authors were speaking on behalf of companies, or were individuals, so this is an honor system. If your listing is still up and you are a vendor, please wave your hand (eddupdate@alm.com) so I can be fair to all.

Vendors can purchase paid listings by contacting mmedwig@alm.com (vendor links will be in a clearly marked advertising venue on the blog).

3. We are ALWAYS looking for folks to join our ranks of EDD Update authors. If you are not a vendor, and are interested (e.g., consultant, paralegal, EDD attorney, etc.) please e-mail me with your resume (eddupdate@alm.com). 

THANKS!!!!