Our Insights on eDiscovery

In Evans v. Mobile Cnty. Health Dept., Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL).

In the case U.S. v. Fricosu, Colorado district judge Robert Blackburn has ruled that a woman must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. The woman, Ramona Fricosu, had argued that the Fifth Amendment’s privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop and seized when investigators served a search warrant on her home.

One of the very first posts we published on this blog, over 16 months ago, was a post regarding Facebook’s Subpoena Policy, describing and providing a link to Facebook’s Law Enforcement page to request information from Facebook. With numerous cases involving discovery of information on Facebook, (including six cases from this blog – all just in the past year), it seems appropriate to revisit this page to see if anything has changed. The first thing that has changed is the link itself.

In Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”. However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

In the case Reilly v. Ceridian Corp, 11-1738 (3rd Cir. Dec. 12, 2011), the Third Circuit affirmed the district court’s dismissal of a class action against payroll processing company Ceridian for a data breach, finding that the plaintiffs case lacked merit because their alleged injuries were too speculative.