Archive for the ‘E-discovery’ Category

Judge Orders Neutral Examiner of Plaintiff’s Facebook Account

Thursday, May 23rd, 2013

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.

Posted in E-discovery, Evidence, Facebook | No Comments »

Defendants Want Social Media, Plaintiffs Want E-Discovery

Monday, May 6th, 2013

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.

Posted in E-discovery, Social Media Law | 45 Comments »

2013 Florida E-Discovery Seminar

Tuesday, February 19th, 2013

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.

Posted in E-discovery, Employment | 207 Comments »

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

Saturday, January 19th, 2013
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.

Posted in E-discovery, Facebook | 241 Comments »

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

Saturday, January 5th, 2013

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?

 

Posted in E-discovery, Evidence, law & order | 152 Comments »

Lawyers in the Cloud

Friday, July 13th, 2012

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.

 

Posted in E-discovery, Privacy | 326 Comments »

Discovery of Facebook Content in Florida Cases

Thursday, May 3rd, 2012

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.

Posted in E-discovery, Facebook | 248 Comments »

Digital Photos Have Metadata Too

Monday, August 1st, 2011

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.

Posted in E-discovery | 101 Comments »