Have The New Rules Hit Your Pocketbook Yet?

New York - Court Imposes $1,250,000 in Sanctions for E-Discovery Violations- In re Sept. 11th Liab. Ins. Coverage Cases, 2007 WL 1739666 (S.D.N.Y. June 18, 2007). Zurich American Insurance Company claimed that the plaintiffs were not named as the insured and refused to pay out claims. After Zurich changed its tune, plaintiffs moved for sanctions as Zurich had deleted the electronic version of an essential document, and only possessed the paper copy, which it did not produce for three years.

Missouri - Defendant’s Refusal to Search Archived Database Results in Sanctions- Claredi Corp. v. SeeBeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007). Plaintiff requested e-mail and eDocs that the defendant denied were in his possession, and refused to search its systems or archives for said documents. Plaintiff obtained the e-mail from a third party, showing indeed that the defendant had made the communications. The court awarded $54,000 in fees and costs related to the sanctions motion, and sanctions of $20,000.

Florida - Failure to Produce “Smoking Gun” Documents Warrants Default Judgment- Quantum Comm. Corp. v. Star Broad., Inc., 2007 WL 445307 (S.D. Fla. Feb. 9, 2007). Defendant produced an e-mail without the corresponding attachment citing the attachment was not relevant to the case. Plaintiff obtained the attachment from a third party to discover is was relevant. Defendant claimed the file had not been deleted in bad faith, but as a part of ongoing business practice. The court disagreed and ordered monetary sanctions, and default summary judgment.

Connecticut - Court Refuses to Allow Defendant to Take Advantage of Rule 37(f) Safe Harbor Clause- Doe v. Norwalk Cmty. Coll., 2007 WL 2066497 (D.Conn. July 16, 2007). Plaintiff motioned for sanctions due to defendants wiping or scrubbing of relevant individuals drives. Defendant argued that this was done as normal business practice and should be protected under Rule 37. The court disagreed and said that in order to gain protection under the new rules the party must first act affirmatively to prevent the destruction of information, even if that would occur in the normal course of business. An adverse jury instruction was granted regarding the evidence that was destroyed, and costs related to the motion were awarded.

How To Lose Your Smoking Gun ESI

In Kasten v. Doral Dental USA, LLC, 2007 WL 1791226 (Wis. June 22, 2007) the Wisconsin Supreme Court defined E-mail as a “document”. Finally, an actual Wisconsin court case that gives you permission to use e-mail in court as a document. Run amuck then, through all your opponents systems gathering all the ESI your 2TB Buffalo Terastations can hold, right? Not quite. There is this little pesky thing called ADMISSIBILITY that is currently being tested around the courts of this country regarding ESI. E-mail, it turns out, may be more prone to problems with authenticity and hearsay than traditional paper documents. This is particularly true of “threaded” e-mails where any individual in the chain has the opportunity to change information in a previous thread. This may require the Attorney to obtain a copy of each individual piece of the chain as a separate e-mail. It is clear that evidence to support the authenticity of an e-mail be submitted at the time the e-mail is tendered see Bouriez v. Carnegie Mellon University.

In the corporate world, lower-level employees may send out damaging casual e-mails that one may see as party admissions, however, may likely be ruled as hearsay since the junior employee does not have the authority to make such statements. Just as diligently as you worked to obtain your ESI, so must you work just as hard to back up its admissibility. At the moment, Lorraine v. Markel Am. Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007) is the yardstick for ESI consideration. This is a (long) must read for any Attorney who is submitting ESI as evidence.

Forensics: What Is It?

Computer forensics is basically a 2 step process: Imaging and Analysis. Depending on your needs, you may only use the first step and not the other. Imaging of a hard drive captures an exact copy of the drive at the moment it is imaged. This is a guaranteed, court recognized way to preserve evidence. You may never need to even look at what is on the drive, but if there is a future need to do so, you have an exact duplicate of that drive (including deleted information) stored and ready for analysis. Simply copying the drive, or doing a backup does not give you an exact copy and can damage information such as metadata.

Analysis involves loading the image into forensic software that will create an index of every character it finds. Depending on the software used, it can also: identify deleted items, separate out e-mail from other documents, weed out often unneeded system files, and segregate images and documents (work, excel, databases…). Analysis can take quite a bit of time, depending on what you are looking for, so it is imperative that you communicate clearly with your forensic specialist on your exact needs.

Midwest uses AccessData’s FTK software for forensic imaging and analysis.

TECHTERMS

FTP (File Transfer Protocol)
Function: noun
Tech Definition: A protocol used to transfer files over a TCP/IP network (Internet, Unix, etc.). For example, after developing the HTML pages for a Web site on a local machine, they are typically uploaded to the Web server using FTP.

FTP includes functions to log onto the network, list directories and copy files. It can also convert between the ASCII and EBCDIC character codes. FTP operations can be performed by typing commands at a command prompt or via an FTP utility running under a graphical interface such as Windows. FTP transfers can also be initiated from within a Web browser by entering the URL preceded with ftp://.

FTP Vs. HTTP: When you download a Web page, the HTTP protocol is used. HTTP and FTP operate in a similar manner for file transfer, and both support binary files.

FILES ANYWHERE

Midwest Paralegal Services / Imaging have upgraded our FTP space to 18 GB. In the hopes of speeding up delivery of priority productions we now have the option to post full productions to an FTP site for you to download at your connivance. We can also set up a drop box for you to upload Raw Images .PST or .NSF files. We use a web utility called Files Anywhere. The process is very simple. We upload the data requested and send you an e-mail link that will allow you to download the files. It works as fast as your internet connection will allow. See the Standard Transfer speed charts to determine how long it will take or follow these links to see how long it will take to upload and download. https://backup.filesanywhere.com/xFolder_Main.asp or http://www.speakeasy.net/speedtest.

It's A Record!

A Client's recent production contained one email that contained 390 threaded email transmissions and, when printed, was 152 pages long.

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