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[atlarge-discuss] Case Law: Olympic Hymn and my Intellectual Property Rights
Sotiris,
FYI:
If you are looking for case Law regarding email-digital signature(s)
attached to your "Intellectual Property" (Hymn), Kroll OnTrack provides
a nice news letter on current Case Law(s), for discovery forensics.
Hope this helps,
James
-----Original Message-----
From: KROLL ONTRACK [mailto:electronicdiscovery@krollontrack.com]
Sent: Tuesday, January 14, 2003 11:54 AM
Subject: Case Law Update and E-Discovery News 3
Case Law Update and E-Discovery News
By Kroll Ontrack
January 2003 -- Volume 3, Number 1
RECENT E-DISCOVERY AND COMPUTER FORENSICS COURT DECISIONS
A current and comprehensive archive of case law summaries pertaining to
electronic discovery and computer forensics is available at
http://www.krollontrack.com/redir/Tcaselaw0103list.asp.
Murphy Oil USA v. Fluor Daniel, No. 2:99-cv-03564 (E.D. La. Dec. 3,
2002). This Order follows the court's decision in Murphy Oil USA, Inc.
v. Fluor Daniel, Inc., 2002 WL 246439 (E.D. La. Feb. 19, 2002) ordering
the Defendant to produce relevant email communications archived on
backup tapes. In this motion to compel before the court, the Plaintiff
sought production of a particular email and argued that the Defendant
waived the attorney-client privilege by voluntarily producing the
contents of an email. Two copies of the email in question existed on
the Defendant's backup tapes: (1) the email attached to a message from
the mail system administrator stating that the attached email was not
deliverable due to an error in the mail address and (2) a copy of the
same email sent to the correct email address. The Defendant produced a
privilege log identifying the subject email as an attorney-client
communication, but at the same time inadvertently produced the
administrator email and attachment. The court held that this
inadvertent disclosure waived the attorney-client privilege and granted
the Plaintiff's motion to compel.
Gambale v, Deutsche Bank, 2002 WL 31655326 (S.D.N.Y. Nov. 21, 2002). As
a step toward resolving several discovery disputes, the Magistrate Judge
ordered the Defendants to serve an affidavit explaining the steps they
have taken to search their paper and electronic files for documents
responsive to Plaintiff's discovery requests and outlining the
feasibility and cost of retrieving such electronic documents. The
Magistrate then stated that the Plaintiff must choose between two
options for producing the electronic data: (1) follow the protocol set
forth in Rowe Entertainment v. William Morris Agency, 205 F.R.D. 421
(S.D.N.Y.2002), with the slight modification set forth in Murphy Oil
USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439 (E.D.La. Feb. 19, 2002),
or (2) confer with the Defendant and propose a joint protocol.
United States v. Al-Marri, 2002 WL 31519619 (S.D.N.Y. Nov. 12, 2002).
In the wake of the September 11th attacks, the FBI visited the
Defendant's home pursuing tips regarding the Defendant's allegedly
suspicious activity. The FBI agents obtained the Defendant's consent to
search his home and, with his affirmative consent and cooperation,
seized his laptop computer, disks, and CDs for further investigation.
Investigation of the computer hardware revealed evidence of credit card
fraud. The Defendant moved to suppress the computer evidence, arguing
that even if he validly consented to a search of his home, that consent
did not encompass the contents of his computer. The Court denied the
motion to suppress and ruled that the FBI's lawful search of the
Defendant's home encompassed the right to search the computer as a
closed container.
United States v. Triumph Capital Group, 2002 WL 31487754 (D.Conn. Nov.
4, 2002). In order to prevent spoliation of evidence in a public
corporation case, the government sought and obtained a search warrant to
seize and search a laptop computer. The warrant did not limit the
search to any particular area of the hard drive. However, it did limit
the government to search for and seize only certain evidence relating
specifically to the charges and to follow detailed protocols to avoid
revealing any privileged information. To preserve the evidentiary data,
the government made mirror image copies of the hard drive and then
proceeded with the computer forensic investigation. The Defendants
argued that this mirroring amounted to a search and seizure of the
entire hard drive and moved to suppress all evidence from the laptop.
The court determined that although the search warrant limited the scope
of the information that investigators could search for, technical
realities required the government to make complete mirror images of the
hard drive. Furthermore, the court ruled that copying a file does not
necessarily constitute seizure of that file and that examining a file
more than once does not constitute multiple searches under the Fourth
Amendment.
York v. Hartford Underwriters Ins. Co., 2002 WL 31465306 (N.D.Okla. Nov.
4, 2002). In a case alleging bad faith in handling an insurance claim,
the Defendant opposed Plaintiff's 30(b)(6) deposition request on the
subject of Defendant's use of a claims adjusting software program called
"Colossus." The Court found that the Defendant failed to demonstrate
that the Colossus program was proprietary or confidential and ordered
that the Plaintiff should be given the opportunity to discover what data
was inputted into Colossus concerning her claim. The court also ordered
the Defendant to provide a Rule 30(b)(6) witness to testify to the use
of the Colossus program. Granting part of the Defendant's motion for a
protective order, the Court held that the nature and extent of the
Defendant's use of Colossus may be confidential and entitled to
protection from third parties.
Kormendi v. Computer Associates Int'l, Inc., 2002 WL 31385832 (S.D.N.Y.
Oct. 21, 2002). The parties in this employment case jointly wrote the
Magistrate, requesting reconsideration and clarification of a prior
order. The court previously had ordered Defendant to produce all email
messages mentioning the Plaintiff over a one-year period, with the
Plaintiff to pay for the cost of the search. In the letter to the
Magistrate, the Defendant stated that it had already produced the emails
from persons involved in the suit and had no method to locate and
reconstruct emails mentioning the Plaintiff for the listed period
because its document retention policy called for employees to retain
emails for a period of only thirty days. The Magistrate noted that the
Plaintiff should seek other means of attaining the desired emails, such
as searching the computers of other employees who might have saved the
emails. Plaintiff still must bear the cost of searching for these
emails.
Bryant v. Aventis Pharmaceuticals, Inc., 2002 WL 31427434 (S.D. Ind.
Oct. 21, 2002). The Indiana court mentioned without further comment
that emails were recovered from the Plaintiff's computer after her
termination, confirming the general discoverability of email evidence.
The court considered the content of these emails in granting summary
judgment in favor of the Defendant.
Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001). Based
on computer forensic expert analysis, the Court found that the Defendant
willfully and intentionally destroyed documents that should have been
produced during discovery. The Court issued adverse inference sanctions
and ordered reimbursement of Plaintiff's attorneys fees as damages for
the spoliation. Trigon Ins. Co. v. United States, 2002 WL 31864265
(E.D.Va. Dec. 17, 2002.). Despite objection by the Defendant, the Court
held that the award to the Plaintiff of fees and expenses (in the amount
of $179,725.70) for hiring and deposing computer forensics experts and
briefing and adjudicating the issues related to the spoliation were
warranted and reasonable.
KROLLONTRACK.COM: YOUR LAW LIBRARY FOR E-EVIDENCE RESEARCH
The legal experts at Kroll Ontrack have created several resources to
help you learn more about electronic discovery and computer forensics
and stay abreast of current case law and news. We hope you make Kroll
Ontrack's website your first stop when researching the law and statutes
pertaining to electronic evidence.
Kroll Ontrack's law library,
http://www.krollontrack.com/redir/Tcaselaw0103library.asp, contains new
items on a regular basis, including: *Articles that have appeared in
legal and business publications, written by our experts *Case law lists
sorted by topic and jurisdiction. New cases are added each month *Rules
& statutes pertaining to e-discovery, computer forensics, and technology
in litigation *A list of secondary research sources
*A glossary of technology terms
*Archived editions of Kroll Ontrack's Case Law Update and E-Discovery
News Kroll Ontrack also maintains sample forms and other practical tools
that you can use to prepare for the electronic discovery portion of your
next case. Visit
http://www.krollontrack.com/redir/Tcaselaw0103tools.asp.
TALKING TECHNOLOGY: STRATEGIES FOR REDUCING E-DISCOVERY COSTS-USING
FILTERING TECHNOLOGY TO REDUCE PAGE COUNTS
Electronic data, while providing a wealth of important evidence, can
present a challenge with regard to the volume of documents it can
generate. Because not every electronic document is responsive or
relevant to a legal matter, you can use filtering technology to extract
extraneous and duplicative documents.
The electronic evidence expert you choose can employ state-of-the-art
technology to filter the entire set of data and narrow the information
to a relevant subset, saving time and money for your clients. When
crafting a search for electronic information, Kroll Ontrack recommends
that you use the following techniques as filters, to assist in narrowing
your search and reducing your costs:
*Identify computer files from key individuals involved in the case
*Search by keyword for relevance and potentially privileged material
*Narrow the data to certain time frames in which documents were created
or emails were sent *Eliminate redundant (duplicate) documents and email
*Flag extremely large files to ease review
*Eliminate blank pages
Ask your electronic evidence expert to demonstrate how these techniques
can save you money and critical review time.
PRACTICE POINTS: CIVIL RULES ADVISORY SUBCOMMITTEE CONSIDERS AMENDMENTS
TO ADDRESS ELECTRONIC EVIDENCE
Because of the special nature of electronic evidence, the Discovery
Subcommittee of the U.S. Judicial Conference Advisory Committee on Civil
Rules is considering whether to propose amendments to the Federal Rules
of Civil Procedure that address electronic and computer-based evidence.
This inquiry is the latest development in the ongoing consideration of
the issues surrounding electronic evidence. The Subcommittee has not
determined that any specific amendment to the FRCP is warranted and may
ultimately determine that no changes are appropriate at this time.
The Subcommittee's review is due, in part, to the distinct
characteristics of electronic evidence, including the increased volume
of information due to an escalating dependence on technology and the
increased concern about alteration and destruction of computer-based
information.
Some suggested Rule amendments include: (1) directing the parties and
court to consider e-discovery in the discovery planning process, (2)
prescribing preservation obligations, (3) conditioning the duty to
obtain information from backup media, (4) creating rule provisions
regarding costs, (5) regulating the production format for computer-based
material, and/or (6) addressing privilege waiver problems. For further
discussion of possible rule amendments, see Richard L. Marcus,
Confronting the Future: Coping With Discovery of Electronic Materials,
64 Duke L. and Contemporary Problems 253 (2001).
NEWS & EVENTS:
1/27/2003 - 1/29/2003 LegalTech New York, NY
Be sure to visit us at Booth #3105!
1/27/2003 Practising Law Institute New York, NY
Electronic Discovery in Technology Litigation
Jason Paroff
1/28/03 LegalTech New York, NY
Electronic Evidence: What you need to know now!
Kristin Nimsger
1/28/03 UNMASKING FINANCIAL STATEMENT FRAUD: Crouching
Profits, Hidden Debts
San Francisco, CA
A free seminar presented by Kroll Inc. For more
information, contact:
Bernadine Bednarz, bbednarz@krollworldwide.com,
213.443.1134
2/6/2003 Practising Law Institute Atlanta, GA
Electronic Discovery in Technology Litigation
Dave Schultz
2/9/03 - 2/11/03 CyberCrime 2003 Mashantucket, CT
E-Discovery
Alan Brill
3/13/2003 Practising Law Institute San Francisco, CA
Electronic Discovery in Technology Litigation
Kristin Nimsger
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