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Category Archives: E-discovery

2013 Florida Discovery Handbook

A reliable resource for all discovery issues, the 2013 edition of the Florida Discovery handbook includes a chapter on e-retention, e-discovery, ESI, and Florida’s new Rules of Civil Procedure.

The Handbook is here.

What is a “Trade Secret” in Florida Discovery? (the existence of free cable tv, apparently)

What’s a “trade secret” for discovery objections and what are the steps for trial court review?

In Bright House Networks, LLC v. Albert C. Cassidy et al. (Florida Second District, Jan. 10, 2014), we learn that at least one cable TV provider apparently provides free service to “a significant number of recipients.”  Moreover, the list of those customers was claimed to be a trade secret.

How does a party raise a trade secret objection?  And what steps are required to overcome it?

In Bright House, the Second DCA held that referencing “trade secrets, confidential, and/or proprietary business information” was sufficient language to preserve the issue.

Consistent with Florida Statutes 90.506 (privilege against disclosure of trade secrets), a  trial court should take the following steps:

1.  Determine if the requested information is a “trade secret” per Florida Statute 688.002(4).  This is usually done via an in camera inspection.  A customer list can be a trade secret.  Here, the Second DCA admitted that an in camera inspection of a list of names/addresses might not be helpful.  That said, a hearing (and evidence) might be needed to determine whether the compilation of information is confidential and that the company acquired it through the pursuit of its business strategy and course of confidential negotiations.

2.  Determine if the requesting party has shown reasonable necessity.  This includes limiting production to items necessary for a court to determine contested issues.

3.  Order safeguards, as needed.

 

Spying Spouses: Social Media & Divorce / Family Law

 

Thanks to the Palm Beach County Bar Association’s Family Law CLE Committee for inviting me to speak at the “Spying Spouses” seminar today.Spying_000006098210XSmall_zps7f1f3d0b

The materials for my section on “Family Law Discovery: Social Media and E-Discovery” is here.

We discussed:

* mistakes that lawyers make in e-discovery and social media discovery;

* protection for lawyers and paralegals on LinkedIn when researching people;

* guidance to your clients on their social media use;

* where to look for social media content in 2013;

* steps to obtain social media discovery and how the courts are handling discoverability;

* sample social media requests; discussion of e-discovery and litigation holds in the family law context; and

* a few helpful apps for family law lawyers.

The cases cited in the materials are here:

Cheryl Young v. Michael Young (Fla. 1st DCA 2012)
Schreiber v. Schreiber, 904 N.Y.S.2d 886 (N.Y. App. 2010)
Davenport v. State Farm, 2012 WL 555759 (M.D. Fla. 2012)
Beswick v. Northwest Medical Center, (Broward 2011)
Levine v. Culligan of Florida, 2013 WL 1100404 (Palm Beach 2013)
Salvato v. Miley, 2012 WL 2712206 (M.D. Fla. June 11, 2013)
German v. Micro, 2013 WL 143377 (S.D. Ohio 2013)
Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. 2011)
Juror Number One v. Superior Court of Sacramento (CA. App. 2012)
In Re White Tail, 2012 WL 4857777 (E.D. La. Oct. 11, 2012)
EEOC v. Original Honeybaked Ham,  (D. Colo. Nov. 7, 2012)
Perrone v. Lancaster Regional Medical Cntr. (Pa. 2013)

 

Judge Orders Neutral Examiner of Plaintiff’s Facebook Account

Faced with a dispute over whether a defendant hospital was entitled to access to the plaintiff’s Facebook account, a Pennsylvania judge ordered that a “neutral expert” would be given access to search the plaintiff’s Facebook account for photos of her engaging in physical activity and for references to “snow” (due to alleged evidence she was sledding or undertaking outdoor winter activity).  Apparently, the issue was whether the Facebook content would reveal some evidence that she was acting contrary to her injury claims.facebook1

Typically, as we’ve discussed here before, judges will take one of three approaches: (1) granting access as a normal part of discovery; (2) requiring some threshold indication that there is something discoverable on Facebook; or (3) simply denying the request.

No indication what a “neutral forensic computer expert” may be relative to Facebook.  Maybe a lawyer with a blog?

A full background discussion can be found in Discovery of Facebook Content in Florida Cases.

Case is Perrone v. Lancaster Regional Medical Center (Judge James P. Cullen).

The order is here.

Defendants Want Social Media, Plaintiffs Want E-Discovery

In civil lawsuits, particularly those involving individuals as plaintiffs and businesses as defendants, lawyers on either side are turning to new discovery tools that they can use against their opponent without much fear of retribution.  Specifically, a defendant seeks a plaintiff’s social media.  Embarrassing and risky for the plaintiff, perhaps, but likely the defendant-corporation has no social media to be concerned about.  11618616-businessman-with-magnifying-glass-and-suitcase-vector

On the other hand, the plaintiff can serve e-discovery on the defendant: in that situation, the individual plaintiff likely has little to none but the defendant corporation is now scrambling with retention policies, multiple devices, and gobs of data.

Are social media and e-discovery treated the same by the courts?

This article, Defendants Want Social Media, Plaintiffs Want E-Discovery, from the April 2013 Palm Beach Bar Bulletin discusses these (developing) legal trends.

2013 Florida E-Discovery Seminar

Special thanks to the Palm Beach County Bar Association for hosting the CLE, 2013 Florida E-Discovery Seminar.  black-out

This seminar discusses:

1.  Top Ten Things to Know About E-Discovery (from Chin to Zublake, Litigation Hold Letters to Predictive Coding)

2.  New Florida E-Discovery Rules (SC11-1542)

3.  Sample Litigation Hold, Responses, Internal Letters

4.  Social Media Discovery

The Powerpoint for the seminar is here.  The sample letters are here.  Also on the right column of this site under Materials.

Fawcett v. Altieri: A New York Court Gets Social Media Discovery All Wrong

A New York court has held that, based on a “survey of social media case,” that there is a two prong test for production of Facebook content which includes developing facts before conducting certain discovery.  The court notes that Facebook production is “tantamount to a costly, time consuming fishing expedition…”  Moreover, the decision discusses privacy rights in the context of Facebook posts.
The opinion in Gina Fawcett, individually and as parent of John Fawcett, Jr. v. Nicholas and Gerald Altieri and St. Joseph by the Sea High School.
Assuming this opinion accurately cites to New York procedural rules, they are markedly different than federal (or Florida) standards.
Some issues with the decision:
The court’s “survey” of social media cases… was three cases.  THIS is a survey of social media cases.  Not merely three cases.
That two prong test (supposedly arising from those three cases) prioritizes some forms of discovery over others and turns a blind eye to the wide discovery that’s permitted in business context.
Facebook production is not costly, nor time consuming.  It’s free and easy.  See the 4 steps here.
If there is a case finding Facebook posts to have privacy protections, it’s an outlier.  Most cases hold, like the one New York case, that a post is akin to yelling out the window.
Here in Florida, even a private diary is discoverable.  Suggesting that there has to be some “predicate” before paper discovery puts a magical wall around social media which a party can construct by downplaying or denying what’s inside.
As a side note, see this 2006 Florida Bar Journal article on Electronic Discovery in Florida — a tad outdated after six years, but a good initial primer.

What Does a Child Pornography Case Tell You About Computer Evidence?

Want to know how to find (or hide) on a computer what websites were visited, what images were viewed, and what files were deleted?  Even if you are not a computer forensic specialist, you can find this information using basic steps and free software on the Internet.  This is helpful for inhouse counsel, lawyers, and even parents.

Surprisingly, these steps are considered so easy, that Judge Posner of the Seventh Circuit stopped short of claming, “even a judge could do this.”  Instead, he notes that “despite the availability of software for obliterating or concealing incriminating computer files, the use of such software is surprisingly rare.”  Well, maybe.  CCleaner remains a frequently-sought program at Download.com.  The case is United States v. Seiver.

Learn computer steps and evidence standards in the November 2012 article from the Palm Beach Bar Association, What Does a Child Pornography Case Tell You About Computer Evidence?

 

Lawyers in the Cloud

Considering using “cloud” storage for your law firm?  Or do you already use services like DropBox and GoogleDrive to transmit large attachments via email links?  Increasingly, lawyers like everyone else are moving towards the cloud.  Is it safe?

What do you need to know before you commit?  If you already have a cloud service, what features can you check to ensure your data is safe?

The article, “Lawyers in the Cloud,” from the Palm Beach Bar Bulletin, should answer some of those questions.

 

Discovery of Facebook Content in Florida Cases

At least two Florida courts have issued orders permitting the discovery of Facebook content in civil actions (one is here).  This has been the subject of orders, appeals, and articles around the country.

But how exactly do you pursue social media discovery (or, conversely, protect your client from it?).

Discovery of Facebook Content in Florida Cases”  is the first article with specific examples and explanations.  It also may be enlightening for counsel who are not involved in litigation.

The article appears in the Trial Advocate Quarterly Spring 2012 edition, published by the Florida Defense Lawyers Association.  Authors are Christopher Hopkins and Tracy Segal.

Digital Photos Have Metadata Too

Lawyers and businesses overlyfocused on e-discovery often raise interest in other parties’ metadata (as well as concern about their own).  Good practices call for companies and firms to scrub email attachments before sending.  But digital photos are often forgotten and, worse, overlooked by common scrubbing software.  

Even in our personal lives, metadata on our family photos may tell a little too much.

This article, from the June 2011 Palm Beach Bar Bulletin, can help.