Keywords: Where Cyber-Angels And Judges Fear To Tread
"Whether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics ... Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence."
This piquant observation was made by one of the most erudite judges in the area of e-discovery U.S. Magistrate Judge John Facciola, in U.S. v. O’Keefe (add citation, please, and date) with regard to the propriety of certain keyword search terms when locating and producing ESI.
In O’Keefe,a criminal case,, the Government was required to produce responsive ESI which was located in several offices around the world. In order to comply with this order, the Government searched paper and electronic files, using self-selected search terms to search email and stand-alone electronic documents. Accusing the Government of running an ineffective search which resulted in incomplete results, the defendants took the Government to task for failing to indicate how or why the selected search terms were chosen. This contention led to Judge Facciola’s surprising revelation that expert testimony may be required to determine the effectiveness of the search and the keyword search terms.
Being a serious point of contention in most electronic discovery matters, the selection keyword search terms are more art than science,and is often dependent upon the bias of the selector as well as what and how much information theproducing party wishes to divulge. Given Judge Facciola’s declaration above, one can now rightfully believe that a motion to compel broader discovery based on the assumption that the keyword search terms were inadequate, should probably be coupled with expert testimony on the issue.
This decision is likely to gladden the hearts of those who toil in the ever-burgeoning industry of forensic consultation, in which gross revenues exceed Three Billion Dollars.
Smith v. Cafe Asia brings into focus the competing nature of privacy rights and discoverable material.
How do one’s privacy rights coincide with the right under Fed. R. Civ. P. 26(b)(1) to discover “any matter relevant to the subject matter involved in the action”? In Smith v. Cafe Asia, 2007 WL 2849579 (D.D.C. Oct. 2, 2007), the court set out to walk the delicate line between these two competing forces.
Plaintiff, a former employee of defendant-restaurant, brought suit for gender discrimination in violation of the District of Columbia Human Rights Act (“DCHRA”), alleging among other things, that he was subjected to gender-based assault and battery in the form of unwanted touching, verbal taunts, and offensive e-mail sent by the restaurant’s manager. Defendant, on the other hand, asserted that this behavior was welcomed, encouraged, and instigated by plaintiff’s prior actions. Defendant claimed that, contained on plaintiff’s personal cell phone, were digital images including plaintiff’s genitalia in different stages of arousal and graphic images of other men purported to be plaintiff’s sexual partners. These images, defendant contended, were shown at work by plaintiff to his co-workers.
Defendant claimed that these images were discoverable because they are relevant to show whether the plaintiff invited the hostile work environment and was subsequently offended by the defendant’s alleged conduct. Plaintiff, however, claimed that these images contain highly personal information and they were never intentionally shared with any of his co-workers. Magistrate (add first name) Facciola, granted in part and denied in part defendant’s motion to compel production of the aforementioned images.
Invoking discretion vested by Fed. R. Civ. P. 26(b)(1) Judge Facciola ruled that, because of the extreme personal nature of the information sought, the typical scope of discovery would be slightly altered. The court held that the plaintiff would be required to preserve the images on his cell phone and that defendant would be able to designate one attorney to view the images only so far as necessary to fully inform its discovery and trial preparation.
The case is most significant for the court’s explanation that the admissibility of the images is inextricably bound to their admissibility at trial; that is, if the prejudice wrought by these graphic images outweighs their probative value there is no basis for discovery:
One important constraint is the admissibility of the discovery being
sought. Defendant asserts that the images, if relevant, are discoverable under Rule 26 even if inadmissible at trial. This holds true, however, only if the images “appear[ ] reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). .
To the extent that defendant aims to use the graphic content of the images to establish plaintiff's “ own standards of behavior,” Mot. to Compel at 1 (emphasis in original), the images themselves are the “end game” of the discovery request. As such, the question of discoverability is inseparable from admissibility, and a determination is necessary of whether, under Federal Rules of Evidence 403 and 412(b)(2), the probative value of the images substantially outweighs their prejudice. This determination is best made by the trial judge either pre-trial or in limine at trial, and for that reason I will order that the images be preserved pending a ruling on their admissibility by Judge Robertson. Moreover, because Judge Robertson is entitled to a robust and fully informed debate over the admissibility of the images.
The court in this case constructed a mechanism for the delicate balance between highly private material and the exigencies of the discovery process. Access to the images was limited, and the ultimate determination as to broader access and admissibility left to the trial judge. As technology makes it easier to intertwine images private to one’s personal life and privately held(as distinguished from, say, publication on My Space or Face Book) with co-existence in the workplace, issues such as these will continue to puzzle courts across country.
If the Employer Is Watching, Is the Privilege Gone?
Does the medium of an employer-provided network which is, or can be, monitored by the employer strip the cloak of privilege from an employee's communication with his attorney?
Yes, according to a New York court in Scott v. Beth Israel Med. Ctr., Inc.. 2007 NY Slip Op 27429 (decided October 17, 2007). The court ruled that the employee in this case did not have a reasonable expectation of privacy while sending e-mails to his attorney, in that the employer's policy said so in explicit terms, and also advised that communications over the network could be accessed and/or monitored.
Dr. Scott, the plaintiff-physician, brought forth a motion requiring the defendant-hospital (“BI”), to return all e-mail correspondence between plaintiff and his attorney. This breach of contract suit arose out of Mr. Scott’s termination and whether he was owed $14 million in severance pay which would be due if he was terminated without cause.
In the course of preparing for litigation Mr. Scott sent several e-mails to his attorney from his workstation at the hospital. These same e-mails were obtained by his employer from his employer’s e-mail system during e-mail collection to prepare for discovery. The defendant claimed that any and all privileges which were attached to the e-mails had been waived by use of the system in conjunction with notice of their e-mail policy. Dr. Scott claimed that he had a reasonable expectation of privacy in his e-mail and that both the attorney-client privilege and work-product doctrine applied.
Being an issue of first blush in the New York, the court leaned heavily on the existence and wording of BI’s e-mail policy. The policy contained such language as “All Medical Center….electronic mail systems….should be used for business purposes only.” and “All information and documents created, received, saved or sent on the Medical Center's computer or communications systems are property of the Medical Center. Employees have no personal privacy right in any material created, received, saved or sent using Medical Center communication or computer systems. The Medical Center reserves the right to access and disclose such material at any time without prior notice.” The court held that these provisions extinguished any expectation of privacy Dr. Scott may have , even his communications with his attorney. Justice Charles Ramos likened the policy to someone sending “confidential e-mail from her workplace with a business associate looking over her shoulder as she types.”
The court disposed of the attorney work-product claim with similar short shrift, holding that the e-mails were not protected by the doctrine as Dr. Scott and his counsel, by communicating over
BI's network, were “so careless as to suggest that [they] [were] not concerned with the protection of the asserted privilege."
As old and new electronic communications become more ubiquitous over employer networks, how can employees and employers, respectively, maintain privacy of communications and avoid being in the position of accessing private or privileged communications which may, in some states like New York and Alabama, infringe upon ethical mandates? Robert Frost famously wrote that good fences make good neighbors. The Scott case highlights the enduring nature of that admonition, pointing out the benefit of strong internal policies regulating computer usage while, at the same time, setting forth the need for employees to demonstrate understanding of those policies by signing acknowledgments of those boundaries.
Sedgwick Names Two Partners to Head Firm’s Electronic Discovery Practice Group
Ken Rashbaum and Keith Casto to Co-Chair Practice Group
SAN FRANCISCO, January 23, 2007 - Sedgwick, Detert, Moran & Arnold LLP announced that Partners Ken Rashbaum and Keith Casto have been named co-chairs of the firm’s Electronic Discovery (E-Discovery), Data Management and Compliance Practice Group. Both are nationally recognized in the field.
“The role of technology continues to provide both infinite opportunities and pitfalls, particularly when it comes to managing data ,” said Kevin Dunne, firm chairman. “Today’s corporations require sophisticated attorneys like Ken and Keith who are able to turn a potentially overwhelming amount of data into a navigable source of information.” “The success or failure of a case can hang on the balance of a single electronic document, at a time when corporate e-mail messages number nearly 40 billion a day,” said Ken Rashbaum.
“The proverbial ‘needle in the haystack’ has become a dangerous reality for corporate America. Business leaders must ensure they have a system in place that can manage and retain electronic records, or expect to face the legal ramifications,” added Keith Casto, referring to Sedgwick’s E-Discovery Portal. The portal houses essential forms, cases, statutes, regulations, rules and articles relevant to the handling of physical and electronic data. Using web-based collaboration technology provide by the Xerdict Group LLC (a Sedgwick subsidiary), the portal offers Sedgwick clients and attorneys direct access to the practical, up-to-date information they need to avoid and, where necessary, prepare for and efficiently manage litigation involving this rapidly evolving area of law.
Rashbaum, nationally recognized as a thought leader in the area of electronic discovery, counsels corporations on data management, privacy and security, including offshore outsourcing of data services. He also handles advises clients on Sarbanes-Oxley, HIPAA Privacy and Security Rules, state identity theft protection, and state and federal privacy laws. He has lectured and published extensively on the preservation of confidential electronic data, and was selected to join the Sedona Conference’s® Working Group 6: International Electronic Information Management, Discovery and Disclosure. As a member of this prestigious group, he works to develop an in-depth understanding of electronic information management for entities facing conflicts of laws as a result of litigation exposure and/or regulation in multiple jurisdictions. Rashbaum received his B.A., summa cum laude, from the State University of New York, College at New Paltz, and his J.D. from Hofstra University School of law.
Casto has had significant experience advising clients on electronic records retention, data management and electronic discovery issues in the context of business litigation and environmental regulatory compliance and management system audits. He has also lectured and written extensively on electronic discovery and environmental regulatory compliance issues. His environmental law expertise stems from his ten years of practice at the U.S. Environmental Protection Agency and over 20 years in private practice in Northern California and Atlanta, Georgia. Casto's environmental toxic tort regulatory and litigation practice encompasses regulatory compliance counseling for all environmental media, due diligence investigation in real estate transactions and corporate mergers and acquisitions, domestic and international environmental audits, environmental management system consultation, civil litigation, and toxic tort defense. Casto received his undergraduate degree from Stetson University, and earned his J.D. from Stetson University College of Law.
The international business and litigation law firm of Sedgwick, Detert, Moran & Arnold LLP provides its clients vigorous defense strategies and long-term litigation avoidance counseling. With over 370 attorneys in offices in Austin, Chicago, Houston, Dallas, London, Los Angeles, New York, Newark, Orange County (California), Paris, San Francisco and Zurich, and an associated office in Bermuda, Sedgwick's collective experience spans the globe and virtually every industry. For more information about Sedgwick, its attorneys, and its services, visit the firm's Web site at
http://www.sdma.com/.
Labels: e-discovery, e-discovery attorney, e-discovery portal, electronic discovery, electronic discovery attorney
Sedgwick E-Discovery Chair Joins Sedona Conference,® A Prominent Legal Think Tank
New York partner
Kenneth N. Rashbaum, chair of Sedgwick’s
E-Discovery, Data Management & Compliance practice, has joined the Sedona Conference’s® Working Group 6, which focuses on international electronic information management, discovery and disclosure. This honor recognizes Rashbaum’s expertise in U.S. and international norms governing electronic discovery, privacy, and data protection, as well as his prolific publication and speaking record on these issues. Rashbaum was recommended for membership by U.S. Magistrate Judge Ronald J. Hedges (U.S. District Court for the District of New Jersey), an expert on electronic discovery in the context of the amended Federal Rules of Civil Procedure.
The
Sedona Conference® is a leading nonprofit organization providing law and policy research and educational programming in antitrust, complex litigation and intellectual property. Through its Working Group Series, prominent judges, attorneys, academicians and other experts engage in dialogue and cutting-edge research resulting in published guidelines, best practices and policy papers. Working Group 6 takes a multi-jurisdictional approach to developing an in-depth understanding of electronic information management for entities facing conflicts of laws as a result of litigation exposure and/or regulation in multiple jurisdictions.
A Brave New World of Jurisdiction: An Instant Message Can Land You In A New York Court
In previous posts and article, we've explored the many ways in which electronic messages can create liability headaches. Michael Eisner, former CEO of Disney, perhaps said it best: "Nothing can bring down a company down faster than blind copies of e-mails which never should have been sent in the first place."
The New York Court of Appeals has now deepened the e-mail and instant message pit. In
Deutsche Bank Securities, Inc. v. Montana Board of Investments. 2006 N.Y. Lexis 1366; 2006 NY Slip Op 4338 (decided June 6, 2006), the Court held that an instant message sent to a recipient within New York can subject the sender to New York's long-arm jurisdiction. The defendant, from Montana, sent an instant message to plaintiff in New York canceling a trade for securities after events indicated that the value of the bonds would increase. Plaintiff commenced an action in New York State Supreme Court for breach of contract. Defendant moved to dismiss arguing, among other things, that the instant message was an insufficient basis for the assertion of personal jurisdiction. The court granted the motion, but the Appellate Division unanimously reversed and the Court of Appeals affirmed.
Chief Judge Judith Kaye wrote that given "technological advances," one "entering our state -- whether electronically or otherwise -- to negotiated and conclude a substantial transaction iw within the embrace of the New York long-arm statute."
While the Court may have relied, in part, on the sophistication of the parties and the pattern of electronic dealing between them, the decision nonetheless raises highly significant risk management issues with regard to the use of office technology. If other states follow New York's lead, an e-mail or instant message can bring a company, which may send out thousands of such communications each day to several states, within the clutches of jurisdictions which may be less than favorable. The importance of training and education on the use of such communications, following this decision, become much more imperative.
E-Mailing Work Home Can Be a Violation of Computer Fraud and Abuse Act
A law suit brought under the Computer Fraud and Abuse Act ("CFAA") against an employee who e-mailed files containing proprietary or confidential information to his home after he gave notice of resignation may proceed, ruled an Arkansas judge in
Nilfisk-Advance, Inc. v. Mitchell (2006 WL 827073 (W.D. Ark.). The plaintiff brought suit alleging that Mitchell e-mailed files containing trade secrets to his home with the intent to convey the information to Nilfisk's competitors. Mitchell moved to dismiss, arguing that he had access to the files and, accordingly, there was no cause of action under the CFAA. Judge Hendren, acknowledging the availability of a civil remedy in what is, essentially, a criminal statute, denied the motion. While it was conceded that Mitchell had authorized access, Nilfisk took the creative position that Mitchell "exceeded any authorization he had" when he e-mailed the files home "with the alleged purpose of misappropriating the information contained in them. The court agreed.
This is a decision which is bound to generate a lot of discussion. Should employees who have given notice cease to e-mail work to home computers? Intent is almost always proven circumstantially, and one of the most compelling circumstances is the temporal relationship between acts -- here the notice to resign and the e-mailing of the files. It is doubtful that this decision will have a chilling effect on telecommuters and those who work from home, as most employers would be well-advised to limit an employee's access to proprietary information once that employee has given notice. But one may also ask whether this decision will stretch the already-elastic bounds of a statute some have called "cyber-RICO." Stay tuned!
Ken Rashbaum
