eDiscovery Counsel

Keywords: Where Cyber-Angels And Judges Fear To Tread

2008-04-15T13:37:00.000-04:00

"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.

2008-01-02T19:06:00.000-05:00

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?

2007-11-26T17:42:00.000-05:00

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

2007-02-14T16:48:00.000-05:00

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/.

Sedgwick E-Discovery Chair Joins Sedona Conference,® A Prominent Legal Think Tank

2006-10-19T09:29:00.000-04:00

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

2006-06-09T16:44:00.000-04:00

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

2006-05-09T16:16:00.000-04:00

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

E-Mail From the E.U.: Safe Harbor or Binding Corporate Rules?

2006-05-03T10:10:00.000-04:00

Welcome to eDiscovery Counsel. This blog will present discuss issues and developments in electronic document management and discovery. We’ll post information and respond to questions about document management as a business imperative, since over 90% of all business documents are in digital while approximately 20% of them are ever printed. In short, you need to know where your data and documents are in order to run your enterprise efficiently and productively. Electronic discovery issues will comprise questions raised by discovery requests from regulatory agencies as well as courts and attorneys.

We’ll also, from time to time, discuss issues pertaining to data transmission across borders. Technological advances have shrunk the work and expanded markets. As a matter of necessity, then, companies must follow suit, going into areas in which they may not be familiar with the legal and regulatory landscape. In his best-selling book The World Is Flat (Farrar, Straus & Giroux 2005), Thomas Friedman elicits a wonderful vignette of this phenomenon. He reprints an African proverb posted on the wall of an American owned fuel pump factory in Beijing, translated into Mandarin:

Every morning in Africa, a gazelle wakes up.
It knows it must run faster than the fastest lion or it will be killed.
Every morning a lion wakes up.
It knows it must outrun the slowest gazelle or it will starve to death.
It doesn’t mater whether you are a lion or a gazelle.
When the sun comes up, you better start running.

To “keep running,” one must know the landscape. Data protection rules in the European Union are more stringent than those in the U.S. In fact, E.U. provisions hold that certain data may not be transmitted from the E.U. to the U.S. unless the American Company has executed a Safe Harbor agreement, in which it agrees to abide by E.U. standards, and registers that agreement with the U.S. Department of Commerce. But national implementing legislation may add additional restrictions. How can one agreement cover the differences in privacy protection among branch facilities in several countries? Nuala O’Connor Kelly, Chief Privacy leader in the U.K. for General Electric, believes she has a better solution: Binding Corporate Rules (BCR’s). In her article BCR’s: a model for the future Ms. Kelly explains how BCR’s can, in effect, set a company-wide global operational standard for data protection, and lays out a step-by-step approach to formulation of the BCR and obtaining necessary approvals from governmental information agencies.

I commend it to you, so you can stay upright as you keep running.

Kenneth Rashbaum's Publications and Presentations

2006-01-03T15:42:00.000-05:00

Mr. Rashbaum's publications include:

“Document Your Electronic Medical Records,” New Jersey Law Journal (Health Care Supplement) (December 12, 2005);

“Beyond HIPAA: Data Security Breach Laws Mandate Security and Written Electronic Health Data Management Policies,” Sedgwick’s Healthcare Law Newsletter (Fall 2005);

“State Law Challenges in Managed Care,” Chapter 4 of Managed Care Litigation (September 2005), published by the Bureau of National Affairs, Inc. (coauthored with members of Sedgwick’s Healthcare Practice Group);

“Medical Information Discovery in the Digital Age,” ABA Health eSource (June 2005), published by the American Bar Association Health Law Section;

“A Call for Federal Immunity to Protect Health Care Employers – and Patients,” Journal of Healthcare Risk Management (Spring 2005), published by ASHRM (American Society for Healthcare Risk Management) (coauthored with members of the ASHRM 2004 Advocacy Task Force);

“Can Offshore Outsourcing Be a Source of Privacy Claims?”, Healthcare Resource & Materials Management News (November/December 2004), published by AHRMM (the Association for Healthcare Resource & Materials Management of the American Hospital Association);

“Shadow in the Courtroom: Confronting the Death in a Wrongful Death Trial,” Trials & Tribulations (Fall 2004), published by the Defense Research Institute’s Trial Tactics Committee;

“Offshore Outsourcing of Health Data Services,” The Health Lawyer (August 2004), published by the American Bar Association Health Law Section;

"Use of Medical Information for Adverse Employment Decisions: A New Cause of Action," The Job Description (Winter 2004), published by DRI;

"Reviewing Discovery Under HIPAA Privacy Rules," New York Law Journal (August 17, 2001); and

"The Patient Health Information and Quality Improvement Act of 2000: Health Care Consumer Beware — or Befuddled?", Mealey’s Managed Care Liability Report (December 8, 2000). [To download the article in pdf format click here.]
Mr. Rashbaum has written and lectured extensively on preservation of confidential electronic data. He has also provided in-service seminars to various hospitals on topics such as the HIPAA privacy and security standards, confidentiality of psychiatric clinic records, advance directives, informed consent and the reporting and documentation requirements of the New York Patient Health Information and Quality Improvement Act of 2000. He also lectures on risk management issues to physicians, nurses and other healthcare professionals.

Mr. Rashbaum’s presentations include:

“Codifying the Trend: Proposed E-Discovery Amendments to the Federal Rules of Civil Procedure,” presented as part of Electronic Records Management & Discovery seminar cosponsored by Sedgwick and Kroll Ontrack in Los Angeles and San Francisco (November 2005);

“The Digital Maelstrom: Confidentiality, Preservation and Disclosure of Electronic Health Data,” presented at Columbia University’s Mailman School of Public Health (November 2005);

“Forensic Risk Management: Monitoring and Reporting Employee Misconduct,” ASHRM (American Society for Healthcare Risk Management) Annual Conference & Exhibition (October 2005);

“Fasten Your Seatbelts! Electronic Health Information, Document Management and Discovery,” presented at the American Bar Association (ABA) Health Law Section’s Managed Care & Insurance Interest Group meeting during the ABA’s 2005 Washington Healthcare Summit (October 2005);

“Fasten Your Seatbelts! Electronic Health Information, Document Management and Discovery,” presented during 2005 Managed Care Seminar in Hartford, CT (September 2005);

“Personal Asset Vulnerability: Do You Still Want to Be a Director – Despite Increased Responsibility, Static Compensation and Heightened Regulatory Scrutiny?”, presentation before in-house counsel, cosponsored with WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel) (September 2005);

“Electronic Medical Records and Risk Management,” presented at the Weiler Hospital, Albert Einstein College of Medicine (July 2005);

“Codifying the Trend: Proposed E-Discovery Amendments to the Federal Rules of Civil Procedure,” presented as part of the Directors Roundtable seminar, Electronic Records Management & Discovery (June 2005 & February 2005);

“Still Want to Be a Director? Outside Directors' Liabilities and Company Risk in the Sarbanes-Oxley Era,” presented before the Santa Clara County Bar Association (June 2005);

“Medical Evidence vs. Medical Confidentiality in Child Abuse Investigation and Prosecution,” presented before the New York City Mayor's Child Abuse Task Force (April 2005);

Panelist, “Managing Consultant and Vendor Relationships in the Era of Electronic Health Information,” a 90-minute teleconference and live audio Webcast sponsored by the American Bar Association (ABA) Health Law Section and the ABA Center for Continuing Legal Education (February 2005);

“Labor and Employment Law Legal Research,” presentation at Legal Research: The Practical Ins and Outs of Research for Employment & Labor Law, Products Liability, Commercial Litigation, Antitrust and Bankruptcy, cosponsored with WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel) (November 2004);

“Monitoring the Use of Office Technology,” seminar on electronic discovery and employer practices regarding employee use of office technology; cosponsored with WESFACCA (Westchester/ Southern Connecticut Chapter of the Association of Corporate Counsel) (October 2004); and

“The New Juggling Act: Reporting and Presenting Audit Results While Keeping Up With Mergers, Acquisitions and Offshore Outsourcing,” presented at the Auditing Roundtable's 2004 Fall Meeting and Exposition: The Role and Practice of EHS Auditing in a New Era of Corporate Governance and Management Systems (September 2004).

Scott Greenspan's Biography

2006-01-03T15:30:00.000-05:00

Scott Greenspan is a seasoned commercial, insurance coverage and products liability litigator. Throughout his career, he has represented a host of large corporations in contractual disputes, franchise disputes, electronic discovery disputes, employment disputes, real estate litigation, intellectual property disputes, defamation disputes, bankruptcy disputes, lending disputes, and advertising industry disputes.

As a member of the firm’s Insurance Industry Team, Mr. Greenspan represents insurers in a host of coverage matters involving many different types of insurance policies and claims.

Scott Greenspan served for over two years as National Litigation Coordinating Counsel to a publicly traded specialty financial company which is the nation’s largest provider of financing and advertising in the taxicab industry. In that capacity, he served as the company’s chief advisor and primary outside litigator in commercial litigation and lending cases all over the country.

Mr. Greenspan also has experience in International Arbitration and recently successfully represented a Latin American restaurant franchisee in an arbitration against the world’s largest restaurant franchisor, garnering an award from the three-arbitrator panel that the franchisor had acted in bad faith toward the franchisee.

Mr. Greenspan also is experienced in First Amendment litigation and was part of a team that overturned a tax imposed by a southern state on certain types of controversial programming. He has also represented several tobacco and medical device manufacturers in product liability litigation and a number of real estate builders and developers in toxic mold litigation.

Litigation Matters:
Mr. Greenspan’s experience includes:

Successfully defending The Walt Disney Company and its subsidiaries that own the Walt Disney World Resort in several actions brought in New York federal court, winning motions to dismiss in both cases which held that the Disney entities that own The Walt Disney World Resort cannot be sued in any court in the State of New York because New York lacks personal jurisdiction over them, including the published decision of Intermor v. Walt Disney Co., 250 F. Supp. 2d 116 (E.D.N.Y. 2003).

Representing Medallion Financial Corp., Medallion Funding Corp. and Medallion Taxi Media, Inc. in a number of commercial litigation and lending actions in states around the country, earning Medallion substantial victories in those matters.

Representing policyholders in insurance coverage litigation matters for over seven years and recovering over $100 million for those clients. Those matters involved virtually every type of liability or property policy and concerned, among other things claims for environmental liability, property damage, business interruption, toxic tort injury, products liability, asbestos, Builder’s Risk, September 11th-related claims, collapse claims, employment practices liability, school system liability, Directors and Officers and Errors and Omissions. Insureds represented by Mr. Greenspan in those high-stakes insurance coverage matters includes two of the nation’s largest airlines, two of the nation’s largest airports, several of the nation’s largest drug and medical device manufacturers, a number of the nation’s largest real estate developers and property management companies, one of Arizona’s largest school districts and one of the most expensive cooperative apartment buildings in Manhattan. Mr. Greenspan’s substantial prior insured-side coverage experience gives him an invaluable perspective which he now applies to his insurer-side coverage practice at Sedgwick.

Representing a large family of advertising and marketing companies, which included one of the nation’s largest advertising agencies. Mr. Greenspan represented these advertising and marketing clients in broken mergers, employment disputes and national tobacco litigation involving advertising campaigns conducted by these clients. He successfully represented these companies in fending off burdensome requests for electronic discovery materials, including a request for all of the companies' e-mails stored on backup tapes.

Representing the nation’s leading cable news network in a number of complex commercial litigation actions in New York courts arising from disputes between the network and some of the cable systems that carried it. Mr. Greenspan successfully resolved all of those cases for the cable network, resulting in substantial settlements.

Defending two of the nation’s major tobacco manufacturers in product liability litigation in states around the country as well as a leading manufacturer of breast implants.

Affiliations & Accomplishments:
Scott Greenspan is admitted to practice law in the State of New York (1996) and the District of Columbia (1998). He is also admitted to the United States District Courts for the Southern and Eastern District of New York (1996) and to the bar of the United States District Court for the District of Columbia (1999)

Mr. Greenspan currently is a member of the American Bar Association and its sections on: (1) Tort and Insurance Practice; and (2) Litigation. Mr. Greenspan is also a member of the Insurance Coverage Committee of the ABA’s Section on Litigation. Mr. Greenspan is active in the ABA and has served as a Judge to the ABA’s National Moot Court Competition, which simulates United States Supreme Court arguments on constitutional issues. Mr. Greenspan is also a member of the District of Columbia Bar Association.

Mr. Greenspan serves as the President and Chairman of the Board of Directors and Board of Managers of Hawthorne Owners Corp. and the 211 East 53rd St. Condominium, which collectively constitute a large coop building on Manhattan’s East Side.

Presentations & Publications:
“Emerging Caselaw Governing the Preservation and Production of Electronic Documents – and the Consequences for Those Who Do Not Preserve and Produce Electronic Documents,” presented as part of Electronic Records Management & Discovery seminar cosponsored by Sedgwick and Kroll Ontrack Inc., November 2005 (Los Angeles, CA & San Francisco, CA);

“Compliance Standards for Retention and Production of Electronic Documents – Knowing the Do’s and Don’ts,” presentation as part of “Corporate Compliance: Do's & Don’ts” panel featured during Corporate Counsel Community Forum conference, organized by the Greater New York Chapter of the Association of Corporate Counsel and the ABA Section of Business Law’s Committee on Corporate Counsel, November 2005;

“Seventeen Secrets for Survival as a First-Year Associate at a Large Law Firm,” New York Law Journal Magazine (“First-Year Associates” issue), September 2005;

Directors Roundtable, "Emerging Caselaw Governing the Preservation and Production of Electronic Documents – and the Consequences for Those Who Do Not Preserve and Produce Electronic Documents,” Spring 2005 (Silicon Valley, CA) & Winter 2005 (New York, NY);

"Cost Effective Legal Research Strategies for Commercial Litigation," WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel) seminar, Fall 2004; and

"Is Toxic Mold the Next Asbestos?", seminar for major New York commercial property owners, managers and insurers, Fall 2002.

Education:
Mr. Greenspan received his B.A. (1992), Magna Cum Laude, from The American University where he majored in Political Science and was a member of Pi Sigma Alpha National Political Science Honor Society. His J.D. (1995) is from New York University School of Law.

New Jersey Law Journal Article

2005-12-12T13:24:00.000-05:00

Please see today's New Jersey Law Journal for an article titled “Document Your Electronic Medical Records"

Kenneth Rashbaum's Biography

2005-12-10T08:12:00.000-05:00

Kenneth N. Rashbaum counsels corporations on federal and state compliance and advises hospitals and physicians on privacy issues such as the requirements of the Health Insurance Portability and Accountability Act (HIPAA), including gap analysis, training, preparation of notices and business associate agreements and implementation of compliance plans.

Mr. Rashbaum has successfully litigated disputes involving age, sex, race and gender discrimination, as well as a variety of claims brought under ERISA. His practice includes counseling, training and advice to employers regarding labor and employment and ERISA issues and preparation of release agreements for companies undergoing restructuring.

In addition, Mr. Rashbaum has defended products liability matters involving medical devices, pharmaceuticals, construction equipment, automotive components and power tools. He has also defended cases involving claims of death from allegedly negligent surgical techniques in organ transplants, cardiovascular procedures and neurosurgery, and brain injury from birth trauma, administration of anesthesia and emergency services treatment.

Affiliations, Activities and Accomplishments
Mr. Rashbaum’s experience includes various alternative dispute resolution proceedings, including mediation, and he was designated by the Appellate Division of the State of New York to serve as the attorney member on several medical malpractice mediation panels.

Mr. Rashbaum is a member of WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel), the American Bar Association, the American Society for Healthcare Risk Management and the New York State Bar Association. He is on the Board of Editors of the Journal of Privacy and Data Security Law, a publication geared toward in-house counsel and senior executives at financial services institutions.

Following graduation from law school, Mr. Rashbaum served as an assistant district attorney in Kngs County, New York, until 1981, at which time he entered civil practice. As an assistant district attorney, he successfully prosecuted career criminals accused of homicides and other violent elonies.

Presentations and Publications
Mr. Rashbaum's publications include:

“The Mouse That Roared: Outside Directors’ Liabilities in the Post-Disney Era,” distributed at the International Association of Defense Counsel’s Corporate Counsel College: Leadership in the Face of Corporate Crisis (April 2006);
“Don’t Let the Computer Eat the E-Mail: Electronic Document Preservation Under the Coming Sarbanes-Oxley Requirements,” ABA Health eSource (March 2006);
"Document Your Electronic Medical Records,” New Jersey Law Journal (Health Care Supplement) (December 12, 2005);
“Beyond HIPAA: Data Security Breach Laws Mandate Security and Written Electronic Health Data Management Policies,” Sedgwick’s Healthcare Law Newsletter (Fall 2005);
“State Law Challenges in Managed Care,” Chapter 4 of "Managed Care Litigation" (September 2005), published by the Bureau of National Affairs, Inc. (coauthored with members of Sedgwick’s Healthcare Practice Group);
“Medical Information Discovery in the Digital Age,” ABA Health eSource (June 2005), published by the American Bar Association Health Law Section;
“A Call for Federal Immunity to Protect Health Care Employers – and Patients,” Journal of Healthcare Risk Management (Spring 2005), published by ASHRM (American Society for Healthcare Risk Management) (coauthored with members of the ASHRM 2004 Advocacy Task Force);
“Can Offshore Outsourcing Be a Source of Privacy Claims?”, Healthcare Resource & Materials Management News (November/December 2004), published by AHRMM (the Association for Healthcare Resource & Materials Management of the American Hospital Association);
“Shadow in the Courtroom: Confronting the Death in a Wrongful Death Trial,” Trials & Tribulations (Fall 2004), published by the Defense Research Institute’s Trial Tactics Committee;
“Offshore Outsourcing of Health Data Services,” The Health Lawyer (August 2004), published by the American Bar Association Health Law Section;
"Use of Medical Information for Adverse Employment Decisions: A New Cause of Action?" The Job Description (Winter 2004), published by DRI (Defense Research Institute);
"Reviewing Discovery Under HIPAA Privacy Rules," New York Law Journal (August 17, 2001); and
"The Patient Health Information and Quality Improvement Act of 2000: Health Care Consumer Beware — or Befuddled?", Mealey’s Managed Care Liability Report (December 8, 2000).

Mr. Rashbaum has lectured and written extensively on preservation of confidential electronic data. He has also provided in-service seminars to various hospitals on topics such as the HIPAA privacy and security standards, confidentiality of psychiatric clinic records, advance directives, informed consent and the reporting and documentation requirements of the New York Patient Health Information and Quality Improvement Act of 2000. He also lectures on risk management issues to physicians, nurses and other healthcare professionals. Mr. Rashbaum’s presentations include:

“Managing the Risk of Using E-Mail, E-Mail Retention Policies and E-Mail Discovery Issues,” presented at LexisNexis Mealey's E-Mail Discovery & Retention Policies Conference (May 2006);
“Electronic Health Information, Document Management and Discovery,” presented to the Montefiore Medical Center Board of Directors and at the Bronx-Lebanon Hospital Center’s Department Chiefs meeting (April 2006);
"Impact of the Federal HIPAA Regulations on No-Fault Litigation,” panel presentation for New York City civil court judges and members of the New York County Lawyers’ Association’s Civil Court Practice Section, Tort Law Section and Insurance Law Committee (April 2006);
“Offshore Outsourcing: Privacy and Public Perception Issues,” presented as part of panel discussion, International Outsourcing: An Interactive Discussion of the Key Legal and Business Issues, during the ABA Section of International Law’s 2006 Spring Meeting (April 2006);
“Fasten Your Seatbelts! Electronic Health Information, Document Management and Discovery,” presented to risk managers from Mount Sinai Medical Center, Montefiore Medical Center, Bronx-Lebanon Hospital Center, Beth Israel Medical Center Center and Maimonides Medical Center and to senior executives of the Federation of Jewish Philanthropies Service Corporation (January 2006);
“Codifying the Trend: Proposed E-Discovery Amendments to the Federal Rules of Civil Procedure,” presented with cospeaker, Hon. Ronald J. Hedges, U.S. Magistrate Judge (U.S. District Court, District of New Jersey), as part of the Directors Roundtable seminar, Understanding the New Revolution in Compliance & Litigation: Electronic Records Management & Discovery (January 2006);
“Codifying the Trend: Proposed E-Discovery Amendments to the Federal Rules of Civil Procedure,” presented as part of seminar, Understanding the New Revolution in Compliance & Litigation: Electronic Records Management & Discovery, cosponsored by Sedgwick and Kroll Ontrack Inc. in Los Angeles and San Francisco (November 2005);
“The Digital Maelstrom: Confidentiality, Preservation and Disclosure of Electronic Health Data,” presented at Columbia University’s Mailman School of Public Health (November 2005);
“Forensic Risk Management: Monitoring and Reporting Employee Misconduct,” ASHRM (American Society for Healthcare Risk Management) Annual Conference & Exhibition (October 2005);
“Fasten Your Seatbelts! Electronic Health Information, Document Management and Discovery,” presented at the American Bar Association (ABA) Health Law Section’s Managed Care & Insurance Interest Group meeting during the ABA’s 2005 Washington Healthcare Summit (October 2005);
“Fasten Your Seatbelts! Electronic Health Information, Document Management and Discovery,” presented during 2005 Managed Care Seminar in Hartford, CT (September 2005);
“Personal Asset Vulnerability: Do You Still Want to Be a Director – Despite Increased Responsibility, Static Compensation and Heightened Regulatory Scrutiny?”, presentation before in-house counsel, cosponsored with WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel) (September 2005);
“Electronic Medical Records and Risk Management,” presented at the Weiler Hospital, Albert Einstein College of Medicine (July 2005);
“Codifying the Trend: Proposed E-Discovery Amendments to the Federal Rules of Civil Procedure,” presented as part of the Directors Roundtable seminar, Understanding the New Revolution in Compliance & Litigation: Electronic Records Management & Discovery (June 2005) and Electronic Discovery and Electronic Records Retention (February 2005);
“Still Want to Be a Director? Outside Directors' Liabilities and Company Risk in the Sarbanes-Oxley Era,” presented before the Santa Clara County Bar Association (June 2005);
“Medical Evidence vs. Medical Confidentiality in Child Abuse Investigation and Prosecution,” presented before the New York City Mayor's Child Abuse Task Force (April 2005);
Panelist, “Managing Consultant and Vendor Relationships in the Era of Electronic Health Information,” a 90-minute teleconference and live audio Webcast sponsored by the American Bar Association (ABA) Health Law Section and the ABA Center for Continuing Legal Education (February 2005);
“Labor and Employment Law Legal Research,” presentation at Legal Research: The Practical Ins and Outs of Research for Employment & Labor Law, Products Liability, Commercial Litigation, Antitrust and Bankruptcy, cosponsored with WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel) (November 2004);
“Monitoring the Use of Office Technology,” seminar on electronic discovery and employer practices regarding employee use of office technology; cosponsored with WESFACCA (Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel) (October 2004); and
“The New Juggling Act: Reporting and Presenting Audit Results While Keeping Up With Mergers, Acquisitions and Offshore Outsourcing,” presented at the Auditing Roundtable's 2004 Fall Meeting and Exposition: The Role and Practice of EHS Auditing in a New Era of Corporate Governance and Management Systems (September 2004).

Education
Mr. Rashbaum received his B.A. degree (1975), summa cum laude, from the State University of New York, College at New Paltz. His J.D. degree (1978) was conferred by Hofstra University School of Law.