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eDiscovery Best Practices: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle
 

Despite a significant inadvertent disclosure of information during Google's litigation with Oracle Corp., U.S. District Judge William Alsup last Thursday (May 31) dismissed claims that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language.

Oracle had accused Google of infringing the "structure, sequence and organization" of 37 of Java's application programming interface (API) application. Referring to this case as “the first of the so-called smartphone war cases”, Alsup ruled in the 41-page decision that the particular Java elements Google replicated were free for all to use under copyright law, noting: "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API". 

Summarizing the validity of Oracle’s claim, Judge Alsup stated:

“Of the 166 Java packages, 129 were not violated in any way.  Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines.  Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof – even though it copyrighted only one implementation.  To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.”

Judge Alsup indicated that he was not ruling that Java API packages are free for all to use, stating: “This order does not hold that Java API packages are free for all to use without license.  It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act.”

Oracle filed suit against Google in San Francisco federal court in August 2011 claiming that the Android mobile operating system infringed Java copyrights and patents (to which Oracle obtained the rights after acquiring Sun Microsystems in 2010) and once valued damages in the case at $6 billion. In the first phase of the trial, the jury returned a verdict that said Google infringed the structure, sequence, and organization of 37 API packages; however, they deadlocked on Google's affirmative defense that it only made fair use of Java technology and Alsup had not yet ruled on whether the APIs could be copyrighted.  He has now.

Oracle is expected to appeal.

So, what do you think?  Will Oracle appeal and should they do so?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”
 

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, (D. Neb. May 18, 2012), that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate. 

In this trademark action, Judge Zwart awarded sanctions of extensive discovery costs against a defendant that destroyed discoverable electronic evidence, failed to search for and locate other electronically stored information (ESI), and made false representations in affidavits and in court regarding its efforts to search for this evidence. In addition, she allowed the plaintiff to conduct discovery by contacting directly the defendant’s current and former clients, despite the court’s acknowledgment that such contact could harm the defendant’s business. Finally, Judge Zwart recommended an adverse jury instruction be given at trial.

Throughout a lengthy and contentious discovery process, the defendant claimed that its failure to produce any electronic documents containing the plaintiff’s mark demonstrated that there simply were no such documents. What the court ultimately discovered, however, was that no documents were produced for very different reasons: (1) the defendant appeared to have a virtually nonexistent records retention policy; (2) the defendant recovered its external hard drives from its landlord just before the landlord received a subpoena for the hard drives, leading the landlord to claim he did not possess the files; (3) to “comply” with discovery requests, the defendant had an employee who is not a computer expert conduct a keyword search consisting of one word (“Kiewit”) of the defendant’s files (from her own workstation) for the name of the plaintiff’s mark and recovered only two nonresponsive documents; and (4) the defendant discarded what it claimed was a non-functioning server the same month that it received notice of the plaintiff’s discovery requests.

The court ordered a forensic examination of the defendants’ computer systems that revealed thousands of documents containing the keyword “Kiewit” on its face as well as in its metadata. It also revealed at least one document that had been previously produced was missing from the electronic files, contributing to the evidence of spoliation. In ruling, the court pointed out that “considering Defendant’s very liberal policy of not keeping documents, consolidating their records in one location, or organizing their files, their efforts to locate relevant electronic files were woefully inadequate.”

As a consequence of the defendants’ “obstreperous” conduct, Judge Zwart found sanctions were appropriate, including monetary awards and an adverse jury instruction. She granted sanctions pursuant to its “authority to sanction the misconduct of parties and their attorneys . . . derived from the Federal Rules of Civil Procedure and the inherent power of the court,” as well as its “power to shape the appropriate remedy including default judgment, striking pleadings, an adverse jury instruction, and an award of attorney’s fees and costs” derived from precedent. Judge Zwart noted, “The most severe sanctions are reserved for those litigants demonstrating ‘blatant disregard of the Court’s orders and discovery rules’ [and] engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case.’”

Furthermore, Judge Zwart found the defendants’ conduct dictated that the plaintiff should be permitted to conduct third-party discovery. The plaintiff argued that it needed to contact the defendants’ clients in an effort to determine whether and how the defendants used the plaintiff’s trademark, whereas the defendants argued that they would suffer “irreparable harm” should the plaintiff reach out to their current and former clients. Despite courts’ general reluctance to allow direct contact with litigants’ clients in intellectual property cases, Judge Zwart here found that the plaintiff showed the clients’ information was “relevant and necessary”; moreover, because “Defendants are simply not a reliable source of information” and they “continue to attempt to use client confidentiality as a means of preventing Plaintiff from discovering relevant information,” the plaintiff’s contact with the clients would be proper.

So, what do you think?  Did the court’s sanctions go far enough or should they have been even tougher?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Inadvertent Disclosure By Expert Waives Privilege
 

In Ceglia v. Zuckerberg, No. 10-CV-00569A(F), (W.D.N.Y. Apr. 19, 2012) (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

This case involved a dispute over the authenticity of a contract, and in seeking assistance to resolve pretrial matters, the plaintiff filed this motion to compel and asserted, among other things, that the attorney-client privilege should protect an e-mail that was inadvertently disclosed to the defendants. The court set forth the standard under Federal Evidence Rule 502(b) that applies to whether an inadvertent disclosure waives a privilege: “the privilege will not be waived if (1) the disclosure is inadvertent; (2) the privilege holder took reasonable steps to prevent disclosure; and (3) the privilege holder took reasonable steps to rectify the error.” Furthermore, “‘the burden is on the party claiming a communication is privileged” to establish that it met these requirements and that “the opposing party will not be unduly prejudiced by a protective order.”

Because the plaintiff failed to “personally supervise” the actions of the information technology expert he had hired, despite that he understandably hired such an expert to assist him while he was out of town, he “also failed to take reasonable steps to prevent the inadvertent disclosure” of the e-mail. Judge Foschio suggested that instead the defendants could have had the expert “first forward any documents” so that the plaintiff “could have reviewed the documents to ensure there w[ere] no extraneous, privileged materials attached.” If the plaintiff needed to oversee the expert in person, the court admonished, he “should have made himself present to do so.”

Judge Foschio also found that the plaintiff did not take reasonable steps to rectify the inadvertent disclosure. Noting that “the delay in seeking to remedy an inadvertent disclosure of privileged material is measured from the date the holder of the privilege discovers [ ] such disclosure,” and that “[g]enerally, a request for the return or destruction of inadvertently produced privileged materials within days after learning of the disclosure is required to sustain this second element,” the court pointed out that the plaintiff not only waited more than two months to try to rectify the error but also offered no explanation for such a lengthy delay.

Moreover, Judge Foschio stated, “Plaintiff has utterly failed to offer any explanation demonstrating that protecting belated protection of the . . . email will not be unduly prejudicial to Defendants.” Thus, because the plaintiff failed to establish any elements of the test required under the evidentiary rules, any privilege that may have attached to the disputed e-mail was waived.

Case Summary Source: Applied Discovery (free subscription required).

So, what do you think?  Should privilege have been waived or should the plaintiffs have been granted their request for the email to be returned?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Another Case with Inadmissible Text Messages
 

Yesterday, we discussed a case – Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender's identity.  That case is now being appealed to the state Supreme Court.  Today, we have another case – Rodriguez v. Nevada, No. 56413, 2012 WL 1136437 (Nev. Apr. 5, 2012) – where text messages were ruled inadmissible.

In this case, the Nevada Supreme Court found that a lower court abused its discretion in admitting text messages because the State failed to provide sufficient evidence corroborating the identity of the sender. The defendant, Kevin Rodriguez, was found guilty in trial court of multiple counts associated with an attack of a woman in her home. On appeal, he argued that the trial court erred in overruling an objection to the admission of 12 text messages because the state failed to authenticate the messages and the messages constituted inadmissible hearsay.

Citing Commonwealth v. Koch, among other cases, the Nevada Supreme Court found that it is necessary that the identity of the author of the text message be established through corroborating evidence presented. In this case, the state did establish that the victim’s cell phone was stolen during the attack, and that the defendant was in possession of the cell phone prior to being arrested.

The court noted that “Text messages offer new analytical challenges when courts consider their admissibility.  However, those challenges do not require a deviation from basic evidentiary rules applied when determining authentication and hearsay.”  Further noting that “establishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility", the court concluded that when there has been an objection to admissibility of a text message, “the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission”.

Since the state did not offer any corroborating evidence that the defendant authored 10 of the 12 text messages, those messages were ruled as inadmissible.  The other two messages were deemed admissible and not considered to be hearsay because in those instances, the state was able to present bus surveillance video of the defendant participating in using the phone at the time those two messages were sent. Despite the erroneous admission of the other 10 text messages, however, the Nevada Supreme Court held that the error was harmless as there was a considerable amount of other evidence pointing to the guilt of the defendant.

So, what do you think?  Should text messages be ruled inadmissible without corroborating evidence?  Will cases like this significantly reduce the use of text messages as evidence in litigation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Inadmissibility of Text Messages Being Appealed
 

Last October, we covered a case – Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender's identity.  That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

This article from The Legal Intelligencer regarding the case, notes the following:

“The justices limited the appeal to two issues, leaving the language used by the state intact.

First, the justices will examine whether the text messages “were not offered for their truth” and were therefore admissible. The state questioned whether the Superior Court, in reversing a Cumberland County judge’s decision to admit the texts, had ruled against its own previous holding in another case and thusly created “uncertainty in the law.”

The high court is also tasked with reviewing the case in terms of Pa.R.E. 901, on “Requirement of Authentication or Identification.” According to the Tuesday allocatur grant, prosecutors asked the court to examine whether the Superior Court panel “misapprehended” Rule 901, again going against its own jurisprudence and again creating “uncertainty.”

Despite a victory before the intermediate appellate court, Koch’s attorney called the justice’s decision to take up the case “good news.”

For Camp Hill, Pa., attorney Michael O. Palermo Jr., the challenge represents a chance for the high court to set precedent against electronic documents “blindly coming into evidence.”

“I have a problem with that and I hope the Supreme Court does too,” Palermo told The Legal following the grant of allocatur.”

So, what do you think?  Was the Superior court right in ruling against the admission of these text messages as evidence? Will the State Supreme Court uphold the decision to rule the text messages as inadmissible?  If they do, will that decision create more eDiscovery problems than it solves?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Twitter Seeks to Succeed Where Defendant Failed
 

Yesterday, we discussed a case where the court denied a criminal defendant’s attempt to quash a subpoena of his Twitter account information.  Now it’s Twitter’s turn to file a motion to quash the court’s order.  Filed this past Monday (May 7), the motion seeks to quash the order based on the grounds that the order imposes an undue burden on Twitter for three reasons including the reason that it forces them to “violate federal law”.

In People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.), the social network filed to quash a subpoena that ordered it to turn over “any and all user information” for Twitter-user Malcolm Harris between Sept. 15 and Dec. 31, 2011.

Twitter’s counsel argued that the order violates the Fourth Amendment, which guards citizens against unreasonable search and seizures, and would force the company to violate federal law.

Twitter also stated that the order does not comply with the Uniform Act, a stance the information network conveyed to Assistant District Attorney Lee Langston in March. “Pursuant to the Uniform Act, a criminal litigant cannot compel an appearance by, or production of documents from, a California resident without presenting the appropriate certification to the California court, scheduling a hearing and obtaining a California subpoena for production,” Twitter’s legal team said in the email response.

In its motion, the company even argued that, based on Twitter’s terms of service around content ownership (Twitter users own their content), Harris has legal standing to challenge the original subpoena; the court previously ruled that he did not.

“This is a big deal. Law enforcement agencies — both the federal government and state and city entities — are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet,” ACLU senior staff attorney Aden Fine said in a statement.

“[The Internet] is, in some ways, the ultimate embodiment of the First Amendment. But one potential problem for free speech on the Internet is that, for almost all of us, we need to rely on Internet companies. And while the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights,” Fine said. “That is why it is so important that the public — and other companies — know when a company actually stands up for its users’ rights. Twitter did so here, and Twitter should be applauded for that.”

So, what do you think?  Does Twitter make some valid arguments and will they succeed where the defendant failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: VentureBeat.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena
 

In People v. Harris, 2011NY080152 (N.Y. Crim. Ct. Apr. 20, 2012), Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.

In denying the defendant’s motion to quash, Judge Sciarrino analogized a subpoena issued to a third-party online social networking service like Twitter to one issued against a bank for a bank customer’s account information. The judge noted that in such bank cases a customer has “no proprietary or possessory interests” in his bank records, as they are the business records of the bank. Similarly, here, when the defendant signed up for Twitter, he agreed to certain terms, including a license that he granted to Twitter to “use, display and distribute” his Tweets. “Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his,” and therefore he had no proprietary interest in the Tweets.

Judge Sciarrino also acknowledged that although the defendant’s belief that he had a privacy interest in his own Tweets was “understandable,” it was “without merit.” The court pointed out that the “very nature and purpose” of Twitter is to help its users share information instantaneously with the world. Although a user may believe the Fourth Amendment should provide him online the same protection he would receive in his physical home, he is mistaken: Twitter users "may think that the same 'home' principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter. At the same time the user is also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses."

Judge Sciarrino also denied the defendant’s motion to intervene in proceedings to quash the prosecution’s subpoena. It also found that the court is “compelled to evaluate the subpoena under federal laws governing internet communications,” that is, the Stored Communications Act; as such, the subpoena was proper because the defendant had a required hearing and notice, the information sought was relevant and material to the case, and the subpoena was not overly broad in its request.

So, what do you think?  Did the judge make the right call or should the defendant have been able to quash the subpoena?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers
 

In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, No. 2:12-cv-00059-KJD-VCF, (D. Nev. Apr. 6, 2012), Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

The plaintiff filed this motion after discovering that the defendants appeared to be tampering with the plaintiff’s computers. One of the defendants previously had been an employee of the company where he was responsible for the plaintiff company’s computer server and network services. The plaintiff alleged that he had created a “back door” to the company server that allowed him to access and alter confidential company information, such as business plans and financial, customer, and trade secret information. The other defendant, also the plaintiff’s former employee, appeared to have in her possession confidential information, as she stated she knew what the plaintiff company was writing in e-mails about her and she had—in a prior lawsuit—produced company e-mails that were neither to nor from her.

Judge Ferenbach considered the plaintiff’s motion for expedited discovery under the applicable rule that although pursuant to the Federal Rule of Civil Procedure 26(d), generally a party may not seek discovery from any source before the parties have held a Rule 26(f) conference, a court may permit expedited discovery upon a showing of good cause. Judge Ferenbach found good cause here “based on plaintiff’s allegations that defendants have access to plaintiff’s computer server, defendants have been deleting files and relevant evidence, and that evidence of their conduct, which is central to the litigation, will be erased through normal use of defendants’ computer . . . .”

In reviewing the plaintiff’s request that the court enter a mirror-imaging order, Judge Ferenbach pointed out that all information stored on a computer is discoverable, except where the request for production imposes an undue burden and expense and/or constitutes an invasion of privileged or private matter. Judge Ferenbach found no such undue burden or invasion would occur by applying and analyzing the facts against a five-pronged test:

(1) “The needs of the case” prong was met because information on the defendants’ computers was directly relevant and had to remain unaltered for the case to be litigated fairly.

(2) “The amount in controversy” prong was satisfied because the plaintiff had alleged it had suffered at least $75,000 in damages.

(3) “The importance of the issues at stake” prong was satisfied because the plaintiff had alleged the case involved the defendants’ accessing information involving business strategy, confidential customer information, and trade secrets, and the court acknowledged it had a responsibility to protect against the dissemination and misuse of such information.

(4) “The potential for finding relevant material” prong was met because the contents of the defendants’ computers were at the center of the case.

(5) “The importance of the proposed discovery in resolving the issues” prong was met because the documents and information at issue could not be produced another way.

Furthermore, the court noted, ordering mirror imaging would not result in undue expense to the defendants as the plaintiffs were paying the costs. The court additionally took measures to protect the defendants’ privacy and privilege interests by structuring the order so that a neutral computer expert would perform the mirror imaging, the expert would serve as an officer of the court, and the mirror image would be held in a sealed envelope in the clerk of court’s office until the conclusion of litigation, unless the plaintiff had reason to believe spoliation of evidence had occurred. At that time, the plaintiff could move the court for access to the mirror image.

Judge Ferenbach declined to enter a preservation order or issue a temporary injunction. He found a preservation order unnecessary because a duty existed to preserve evidence because “litigants owe an ‘uncompromising duty to preserve’ what they know or reasonably should know will be relevant evidence in a pending lawsuit,” and the complaint against the defendants and the information contained on the defendants’ computers was directly relevant to the suit against them. Judge Ferenbach found the preliminary injunction unnecessary because it ordered mirror imaging.

So, what do you think?  Were the mirror-images warranted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Social Tech eDiscovery: Twitter Law Enforcement Policies Revisited
 

Back in January, we revisited Facebook’s Law Enforcement policies and found that they had changed quite a bit from the from the post we published back in September 2010 regarding those policies.

Private Information within Twitter

As most information in Twitter is publicly shared with everyone, private information kept within Twitter is limited.  From their Privacy Policy page, examples of information that is not public includes:

  • Email address;
  • Password;
  • Cell phone or address book (to enable Twitter to help you find Twitter users you know)
  • Location information (to track your location where you’re “tweeting” from); and
  • Log data (IP address, browser type, the referring domain, pages visited, your mobile carrier, device and application IDs, and search terms).

You can also set “Tweet privacy” so that only certain people will receive your “tweets” or send private messages through the direct message syntax in Twitter.  Sometimes, information meant to be private messages to one individual can be inadvertently published to all if you’re not careful – as former congressman Anthony Weiner found out (remember him?).  You can also now add photos to tweets directly in Twitter, which would be private if the tweets are private themselves (this does not apply to photos referenced in tweets stored on third party image providers like Flickr, Twitpic or yFrog).

Requesting Private Information from Twitter

If you’re considering requesting provide information from Twitter for litigation purposes, here is what you need to know (from the Guidelines for Law Enforcement page on the Twitter site):

  • Data Retention Information: Twitter doesn’t get very specific on its retention policies other than to say that it “retains different types of information for different time periods” and that “some information may only be stored for a very brief period of time”.  The Privacy Policy page does note that log data may be retained for up to 18 months.
  • Private Information Requires a Subpoena or Court Order: Non-public information about Twitter users is not released except “as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process”.  Twitter notes that they don’t “require email verification or identity authentication”, so the information may not be valid for fake or anonymous profiles.
  • Emergency Requests for Information: Twitter evaluates these on a case-by-case basis, but will usually provide the information if there is “a good faith belief that there is an emergency involving the death or serious physical injury to a person”, assuming they have it.  Emergency requests can be emailed to  lawenforcement@twitter.com.  Twitter notes that only email from law enforcement domains will be accepted and all others will be disregarded.
  • Requests from Non-U.S. Law Enforcement: Twitter will honor requests for user information from foreign law enforcement agencies if they are requested through a U.S. court.
  • Notifying Users of Information Requests: Twitter will notify users of requests for their information prior to disclosure unless they’re prohibited from doing so by statute or court order.
  • Information to Be Included in Requests: Requests must include the username and URL of the Twitter profile in question, details about the specific information being requested and its relationship to the investigation and a valid email address for them to acknowledge receipt of the legal request.
  • Methods for Requesting Information: Twitter only accepts legal process from law enforcement agencies delivered by mail or fax.  That’s a very 1970s restriction for an organization whose business it is to provide 21st century technology to its customers.

Now you know how to request private user information, provided you’re a law enforcement organization or have a subpoena or court order to serve them with.

So, what do you think?  Have you needed to request information from Twitter for litigation purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Rules Changes for Spoliation Could Come as Soon as 2013
 

With cases related to preservation and spoliation issues continuing to be prevalent, as well as continued greater emphasis on proportionality in eDiscovery, the Advisory Committee on the Federal Rules of Civil Procedure has requested comments on possible changes to the federal rules relating to preservation and spoliation of evidence.  Much of the framework for the proposed rules was derived from Judge Shira Scheindlin's opinions on eDiscovery, particularly those in the Zubulake case.  These changes could be finalized as soon as December 2013.

As there are currently no rules governing preservation, courts have set their own guidelines – not always consistently from court to court. The hope is that establishment of rules regulating preservation and spoliation will clarify expectations and standardize practices.  Invited by the advisory committee to provide suggestions, the special committee has proposed new Rule 26(h), which specifies that the duty to preserve ESI arises when a subpoena is received by a non-party, or when a person becomes aware of facts that would lead a reasonable person to expect to become a party to an action. That duty remains in effect for all existing and subsequently created documents or ESI until the termination of the involvement of the party or non-party, or until a person becomes aware of facts that would lead a reasonable person to believe that he or she will not become a party to an action.

A person whose duty to preserve has been triggered must take steps to preserve discoverable documents and ESI, and must consider several factors, including:

  • Importance of the information;
  • Amount in controversy; and
  • Burden and expense to preserve in a form as close to (if not identical to) their original condition as possible.

In addition, new Rule 37(g) has been proposed which identifies a variety of penalties to be imposed, depending on the level of culpability of the spoliating party and the remedial requirements necessary to the case, taking into account the importance of the information lost to the party seeking its discovery.

While the advisory committee decided not to pursue any rule change dealing with preservation back in November, they have continued to pursue those dealing with penalties for spoliation.  However, during the discussion process for preservation rules, standard expectations for preservation of evidence included the issuance of a written litigation hold to key players in an organization most likely to possess documents or ESI that will be important in a case, with the hold to be periodically reviewed and renewed.  Eventual rules for preservation would be expected to include such provisions.

As for spoliation, the advisory committee considered the proposed new rule regarding penalties for spoliation at its meeting on March 22.

The advisory committee has also drafted proposed amendments to Rule 45 concerning serving of subpoenas. Proposed changes include abolishing the requirement that a discovery subpoena be issued in the same court where compliance of the subpoena is expected. Instead, nationwide service of process will be implemented, so, for example a discovery subpoena for a case pending in the Eastern District of Texas would be valid in the Southern District of New York. The subpoenaed party can choose the subpoena to be enforced in the district where compliance is to be made or in the trial court.  Out-of-state parties (or an officer of those parties) can be compelled to travel more than 100 miles to testify at trial if good cause is shown for them to do so. Changes are also proposed requiring that all parties receive notice on the service of a subpoena to a non-party.

The advisory committee decided on revisions to Rule 45 back on March 22. By May 1, the advisory committee will submit its recommendations regarding spoliation and Rule 45 to the federal Standing Committee. The federal Standing Committee is expected to approve the recommendations in June and submit them to the federal Judicial Conference. Assuming the Judicial Conference approves the proposal at its September 2012 meeting, they will transmit it to the US Supreme Court, which will have until May 1 of next year to transmit the proposal to Congress. If Congress does not act, the proposal would become rule on December 1, 2013.

So, what do you think?  Will these rules changes benefit the eDiscovery process?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.