The article is here. Query: suppose you are using informal discovery means to access this information. It is discoverable (see below); you can’t use deception to access it (see below); but perhaps even “innocently” accessing it might create some tort law issues? Stay tuned…
Romano v. Steelcase is here. It holds that putting a photo on a “private” Facebook page doesn’t magically make the photo undiscoverable… just as putting it in a folder labeled “ultra top secret” doesn’t in the real world….
There’s a new New York case here. I don’t see this as news, since putting “private” on my diary doesn’t make it immune from discovery (if it’s relevant, and, come to think of it, if I had a diary), but the issue gets litigated. Lesson: make sure your clients know that “private” doesn’t mean “nondiscoverable.”
There’s a great story by CBS here concerning the fact that for the last eight years, most digital copies contain a hard drive that retains an image of the last 20,000 copies made. Law firms selling or otherwise discarding their copiers should consider treating them just like a laptop, and take appropriate steps to protect client confidences.
The story is here.
There’s an interesting article on this subject here.
Professors Monroe Freedman, Andrew Perlman, and a slew of judges and other experts participated at Mercer Law School’s symposium on ethical issues in the digital age, and the transcript is available on line, here. I urge you to read especially Professor Freedman’s opening remarks, “Whatever happened to the search for the truth?”
Here is the introduction (sans links):
On November 6-7, 2008, the Center for Legal Ethics and Professionalism and the Mercer Law Review hosted the Ninth Annual Georgia Symposium on Professionalism and Ethics. The title of the symposium was “Ethics and Professionalism in the Digital Age.” The Mercer Law Review will be publishing transcripts of all the sessions and related papers prepared by the participants. Video of the events is available for viewing by clicking on the links below. For a listing of all speakers and their biographies, click here.
The annual symposia on professionalism and ethics are funded by an endowment created by order of the Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia. The order settled allegations of litigation misconduct in exchange for payments that fund the symposia and funded the creation of academic chairs devoted to ethics and professionalism at the Walter F. George School of Law of Mercer University, the University of Georgia School of Law, the Georgia State University School of Law, and the Emory University School of Law.
This year’s symposium began with a dinner on the evening of November 6 at the Cox Capitol Theatre in downtown Macon. Professor Monroe Freedman delivered the keynote address, entitled “Whatever Happened to the Search for Truth?” To see Professor Freedman’s speech, click here.
The next morning, there were two panel discussions related to issues of ethics and professionalism in e-discovery. In the first panel, Jason R. Baron, the Director of Litigation for the National Archives and Records Administration, presented his paper on “E-Discovery and the Problem of Asymmetric Knowledge.” To see a written version of Mr. Baron’s remarks, click here. The two responders to Mr. Baron’s presentation were Chilton Varner, a partner at King & Spalding in Atlanta, and The Honorable John M. Facciola, United States Magistrate Judge for the District of Columbia. To see the first panel discussion, click here.
The second panel discussion began with a presentation by Ralph C. Losey, a Shareholder at Akerman Senterfitt in Orlando, Florida. Mr. Losey spoke on “The Wicked Quadrant – A Theoretical Construct to Understand Unethical Behavior in E-Discovery.” The responders to Mr. Losey’s presentation were William F. Hamilton, a partner at Holland & Knight in Tampa, Florida, and The Honorable David A. Baker, United States Magistrate Judge for the Middle District of Florida. To see the second panel discussion, click here.
In the afternoon, there were two additional panel discussions. The first concerned the internet and lawyer marketing. Jack Sammons, Griffin Bell Professor of Law at the Walter F. George School of Law at Mercer, moderated a panel discussion that included Paula J. Frederick, Deputy General Counsel of the State Bar of Georgia, Diane L. Karpman of Karpman & Associates in Beverly Hills, California, and Micah Buchdahl, President of HTMLawyers, Inc. in Moorestown, New Jersey. To see the third panel discussion, click here.
The final panel discussion of the day concerned the special issues of ethics and professionalism that surround the use of metadata. Professor David Hricik of Mercer conducted the discussion, with Professor Andrew Perlman of Suffolk Law School in Boston and Carolyn Southerland, Managing Director of the Huron Consulting Group in Houston, as his panelists. To see the last panel discussion, click here.
The Philadelphia Bar Association’s Professional Guidance Committee addressed the question of an attorney trying to access Facebook and Myspace accounts of a third party witness in Ethics Opinion 2009-2 (March 2009).
This Ninth Circuit decision breaks no new ground, but does remind lawyers that in general there will be no immediate appeal of inadvertent production issues, because both there is no “final decision” and because as a general matter there is no “collateral order” in terms of Cohen. Truckstop.net LLC v. Sprint Corp., (9th Cir., No. 07-35123, 10/28/08). The lawyers perhaps should have tried mandamus…
There’s an article here about Gutman v. Klein, reportedly the first case in the Second Circuit entering default judgment for e-discovery abuse and e-spoliation. If you haven’t been involved in e-discovery battles, the case is an eye opening read, both in what it takes to uncover deletions and what-not, but also for the misconduct that effort uncovered here.
On November 7, the Law School will host the 9th annual Georgia Symposium on Professionalism and Ethics. The topic for this years symposium is “Ethics and professionalism in the Digital Age.” There will be presentations and panel discussions on e-discovery, the internet and lawyer marketing, and meta-data. The symposium will take place in the Law School Courtroom beginning at 9 a.m. on the 7th. The event is open to the public, and CLE credit will be available. For further information, contact professor Patrick Longan at (478) 301-2639 or longan_p@law.mercer.edu
A litigant used the “black out” feature in Acrobat to “redact” information, and learned that wouldn’t work… when the other side cut and pasted the document into Word and showed that important, relevant information had been deleted. A blog about it, with links to the case and what-not, is here.
Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.
Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!
In Formal Opinion 2008-1 (July 2008), the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York addressed various issues concerning the organization, delivery, and the ability to charge clients for delivery of electronic files after the end of a representation. An earlier Wisconsin opinion on the same subject is here.
With the new amendments to the Federal Rules of Civil Procedure concerning discovery of e-data come the first crop of cases, which are nicely summarizes in this article by Ronni Abramson from the Fulton County Daily Report.
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