Archive: August 25, 2006

1
Wipeout: The Dangers of Workplace Websurfing
2
E-Discovery Zero Hour Approaches
3
Second Circuit Certifies Question to N.Y. Court of Appeals: Can electronic data, computer programs, or electronic data saved in computer programs support a claim for conversion?
4
New York Court Orders Additional Searches of Restored Data and Backup Tapes, Shifting All Costs, Including Attorney Fees for Privilege Review, to Requesting Party

Wipeout: The Dangers of Workplace Websurfing

From NPR’s All Things Considered:

"Legal Liability: E-mails may travel from sender to receiver in a flash, but their digital trail lingers much longer — and that has landed some firms in hot water. A 2006 survey of more than 400 companies found that 15 percent have fought a lawsuit triggered by a worker’s careless correspondence. One in four firms has had a worker’s e-mail subpoenaed, and about the same number say they’ve fired a worker for misusing electronic correspondence."

More here.

E-Discovery Zero Hour Approaches

As the Dec. 1 deadline for new Federal Rules of Civil Procedure draws closer, it’s time to go tech or close shop.

""Everybody is a little terrified," said Martha Dawson, a partner with Seattle-based Preston Gates & Ellis. Dawson practices in the firm’s document analysis technology group. With some litigants in recent cases subjected to harsh sanctions for bungling e-discovery demands, clients and attorneys are worried about their ability to organize unwieldy information systems, she said. "

Creating particular anxiety is one component of the rules that requires parties to meet and address the preservation of electronic information 21 days before their first scheduling conference. New Rule 26(f) calls for parties to discuss "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." "

Read the entire article from Leigh Jones at National Law Journal here.

Second Circuit Certifies Question to N.Y. Court of Appeals: Can electronic data, computer programs, or electronic data saved in computer programs support a claim for conversion?

Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400 (2d Cir. 2006)

The plaintiff in this case is an insurance agent formerly associated with the defendant insurance company. Plaintiff and defendant had executed an Agent’s Agreement, and defendant had required that plaintiff lease an agency office-automation system (“AOA”), including hardware and software, from defendant. During the 21 years he was an agent of defendant, plaintiff’s office operations were very much dependent on the AOA. Plaintiff and his staff entered business data and information onto the hard drives of the AOA system on a daily basis, and defendant then uploaded that information on a nightly basis from plaintiff’s computers onto defendant’s computers. In the process, defendant also uploaded plaintiff’s personal information.

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New York Court Orders Additional Searches of Restored Data and Backup Tapes, Shifting All Costs, Including Attorney Fees for Privilege Review, to Requesting Party

Delta Fin. Corp. v. Morrison, 2006 WL 2403437 (N.Y. Sup. Ct. Aug. 17, 2006)
This case involved breach of contract and fraud claims stemming from an exchange of assets between some of the parties, which took place in August 2001. The opinion resolves the parties’ dispute relating to three categories of electronic documents sought by one of the defendants (“LLC”) from the plaintiff (“DFC”): 1) non-email electronic documents which LLC claimed were not captured by DFC’s search process; 2) emails which LLC claimed were not captured by DFC’s ninety-day back-up tapes; and 3) emails from January 1, 1999 through July 12, 2000.

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