E-Discovery Law Alert : New York & New Jersey Attorneys for Electronic Discovery and Corporate Information Management Law

Obtaining electronic discovery from a city or municipality in civil litigation can be a slow process. But, in DMAC LLC and Fourmen Construction, Inc. v. City of Peekskill, plaintiffs’ task was made impossible because of the City of Peekskill’s failure to implement a “formal e-mail retention policy,” leaving it up to the “sole discretion” of City staff and elected officials whether to retain or delete their e mails. When the City and other defendants were sued in 2009 for stopping a real estate development project that began back in 2007, allegedly for political reasons, that lack of any e-mail retention policy came back to haunt the defendants.

Plaintiffs in DMAC are the owners and developers of a townhouse project begun in January 2007. In March of that year, the City issued a stop work order. Plaintiffs commenced litigation against the City in 2009. During the course of that litigation, plaintiffs requested e-mails from the City to establish that political motivations were the underlying cause of the stop work order. The City maintained that it did not have the e-mails sought, explaining that at the relevant time (in 2007) it had no formal e-mail retention policy notwithstanding the fact that it did produce some e-mails among City employees. Plaintiffs were able to piece together some relevant correspondence between City officials and third parties; and thereafter moved for spoliation of evidence sanctions against the City for failing to preserve its e-mail records, including records about its decision-making process to stop the project.

In ruling on plaintiffs’ motion, Magistrate Judge Yanthis of the Southern District of New York set forth the now-familiar factors that must be examined when deciding a sanctions motion for spoliation of evidence, explaining that the movant must prove “1) that the spoliating party had control over the evidence in question and a duty to preserve it at the time it was destroyed, lost, or significantly altered; 2) that said evidence was destroyed, lost, or significantly altered with a culpable state of mind; and 3) that said evidence was relevant to the moving party's claims or defenses.”

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Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(f) and The Sedona Conference® “Cooperation Proclamation” was a hollow platitude or aspirational goal, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel, at least in his court.

The case is Taydon v. Greyhound Lines, Inc. and involves pro se plaintiff Taydon’s claims that Greyhound infringed on a certain patent of his by utilizing the patented technology on their buses. Addressing dueling claims of discovery deficiencies and delays by the parties, Judge Facciola deftly dealt with the claims for sanctions and motions to compel by his typically careful analysis of the rules and precedent in DC and Federal Circuits.

In closing his June 6, 2012 opinion, however, the Judge laid down the law on the discovery cooperation mandate:

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Having recognized the challenges regarding jurors’ use of social media in the courtroom, the Committee on Court Administration and Case Management requested that the Federal Judicial Center (“FJC”) survey district court judges to identify effective mechanisms to curtail this growing problem. In response, the FJC queried 952 district judges and issued Jurors’ Use of Media During Trials and Deliberations, which demonstrates that despite the various strategies devised, it is virtually impossible to prevent jurors’ use of social media and is equally difficult to detect each and every impropriety. This issue is not novel; in fact, this blog has previously reported on instances where jurors’ use of social media had a significant impact on a proceeding as well as suggestions on how to avoid such pitfalls. Click here for those postings.

The General Response

Of the 508 judges who responded to the electronic questionnaire at issue, only 30 judges or 6% reported detecting jurors’ use of social media. This discovery occurred more often during trials rather than deliberations and in criminal trials than civil trials. The social media at issue in these instances were Facebook, Google, instant messaging (“IM”) services, Twitter, Internet chat rooms, Internet bulletin boards, and MySpace.

Nature of the Use

Among the jurists who identified how jurors used social media during trial and deliberations, the most common was through jurors’ “friending” or attempting to “friend” participants in the case (meaning witnesses, parties, attorneys or judges) as well as communicating or attempting to communicate directly with participants. In addition, the judges discovered that jurors used social media to reveal parts of the deliberative process; provide information about other jurors; conduct research; generally share information about the case by, for example, revealing the likely verdict; allow someone else to hear live testimony; and conduct personal business.

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All over the country, courts are struggling with how best to prevent juror communications and/or research on the Internet, including on social media such as Facebook. What's the solution? Thus far, there is no clear answer, as evidenced by a recent New Jersey case in which a juror dodged sanctions for contempt after researching a child sex-crime case involving a former pastor on the Internet -- even after being instructed to refrain from such Internet research.

In the New Jersey case, not only did the juror research certain legal terms on Wikipedia, but he also distributed handouts to his fellow jurors several days into the deliberations -- despite several precautions in place. For example, during voir dire, the court advised that the jurors should not consider facts outside of trial testimony and exhibits and similarly should not read about the case in the media. The judge also read the model jury charge each day of the trial. It reiterated that deliberations could only be based on what was presented during trial and cautioned jurors not to read about or research the case "in print, on the Internet or on any blog."

After the trial judge declared a mistrial, Bergen County Assignment Judge Peter Doyne issued an order to show cause why the juror should not be held in contempt. Judge Doyne ultimately found that a contempt sanction was not warranted because the error appeared to be a "genuine, though perhaps reckless, mistake," adding that while the conduct was contemptuous, it was not willful beyond a reasonable doubt. Judge Doyne suggested, however, that NJ's Model Jury Charges be amended "to make unquestionably clear that the prohibition on juror research and outside materials is absolute."

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It has become commonplace for parties engaged in electronic discovery to discuss and agree upon “keyword” searches in an effort to limit the overall scope of discovery. A recent decision in the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix, Civ. No. 03-3677 (DRD), (D.N.J. 2011) , demonstrates the pitfalls that arise when the parties too eagerly agree to conduct a search for electronically stored information using an overly broad set of keywords. The case also demonstrates a court’s willingness to engage in proportionality analysis to cabin broad discovery.

Biomatrix involved a dispute over two medical distribution contracts, with the plaintiff alleging that the defendant breached certain exclusivity provisions. During the course of the parties meet and confer obligations, the plaintiff’s counsel agreed to allow the defendant’s expert to conduct a keyword search of more than 50 terms on the plaintiff’s computer network, servers, and related storage devices. Counsel should have known better than to agree to such keywords -- without limits as to time, custodian, or “active file” status -- that would almost certainly result in millions of hits. In this case, the agreed upon search yielded more than 64 million hits, approximating 95 million pages of data. Despite agreeing to conduct such a broad search as part of a previous court order, the plaintiff was forced to seek court approval to have the prior discovery order modified to further narrow the discovery inquiry. Not surprisingly, the defendants sought to hold the plaintiff to their initial deal, and also sought costs associated with the search.

Magistrate Judge Shipp found that (1) “good cause” existed for modification because the plaintiff’s privilege review of the documents would be unduly burdensome, (2) the defendants did not demonstrate the relevancy of the documents, and (3) the parties’ overbroad search terms were unlikely to yield relevant, admissible information. He thus amended the pre-existing discovery order, but held that the defendants could seek reimbursement of the costs associated with extracting and searching the data on the plaintiff’s computer system.

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The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).

For these designated cases (which include class actions, MDL actions, patent & trademark, product liability, securities, stockholder, antitrust and environmental cases), parties are required to submit, no later than 7 days before the initial pretrial conference, an initial report containing a “protocol and schedule for electronic discovery, including a brief description of any disputes regarding the scope of electronic discovery.” Similarly, parties are required to provide, among other things, “[a]ny recommendations for limiting the production of documents, including electronically stored information.” The JIC Report attaches an initial pretrial conference check list as Exhibit A and a joint electronic discovery submission and proposed Order as Exhibit B.

The form Joint E-Discovery Submission (“the Submission”) requires counsel to certify that they are sufficiently knowledgeable about their clients’ technology systems and can discuss issues concerning electronic discovery or, if not, have involved a competent person to address those issues. The Submission provides several categories for the parties to address prior to the preliminary conference, including, among other things: (1) preservation obligations, (2) search and review protocols, (3) sources of ESI production, (4) forms of production, and (5) cost allocation.

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The E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association recently issued a Report entitled, “Best Practices in E-Discovery in New York State and Federal Courts.” The Report offers fourteen (14) “Guidelines” for the New York litigator dealing with ESI, and includes a helpful glossary and bibliography. The Report provides a brief and straightforward interpretation of the current state of e-discovery law and recommendations on how to “best” navigate that current landscape.

The Guidelines are summarized and then briefly explored by the Committee. They address the following topics: when the duty to preserve arises and what to preserve (Guideline Nos. 1 and 2); issuance and content of legal hold notices, requests for production (and objections thereto) and subpoenas (Guideline Nos. 3 and 6); counsel’s duty to make the discovery process more cooperative and collaborative (Guideline No. 4); familiarity with a client’s information technology (Guideline No. 5); common ESI issues and practical advice throughout a litigation’s life, including: (a) initial review; (b) search for and collection of ESI; (c) processing of ESI to eliminate duplicates and render it searchable; (d) further culling the ESI to reduce volume; (e) review by counsel; and (f) production (Guidelines 7 - 11); familiarity with ESI costs and cost-shifting burdens (Guidelines 12 and 13); and the consequences of a failure to preserve relevant ESI (Guideline 14). The Guidelines emphasize throughout the importance of informed counsel and a cooperative meet and confer process as critical to fruitful and cost-effective e-discovery.

In sum, this “best practices” report is targeted more to the novice e-discovery practitioner and succeeds as an elementary, but helpful primer for New York litigators who wish to become better acquainted with these issues. While more experienced practitioners will not find much new information here, the guidelines present an excellent basic checklist of common e-discovery concepts and issues that arise in state and federal court litigations. In a jurisdiction like New York, where, at least on the state court level, existing rule-based guidance in these areas is minimal, guidelines such as these are always welcome and useful.

Elizabeth Ann Fitzwater is Counsel to the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force. .

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An effective and up-to-date set of records management policies may help companies reduce the likelihood of sanctions and other adverse consequences by ensuring records are retained and preserved in accordance with legal requirements, according to Gibbons Director Phillip Duffy; TechLaw Solutions’ Northeast Regional Director Michael Landau; and Inventus LLC Senior Consultant Bryan Melchionda.

The challenges, Duffy notes, include identifying and managing data, determining how long to retain it, and how to implement policies and execute them.

“As a general rule, records should be retained long enough to satisfy the purpose of their creation, and the applicable legal requirements, including those imposed by applicable statutes or regulations” he says. “Of course, there is also a common-law duty to preserve records that are relevant to lawsuits, investigations, audits and other circumstances, which is why every records management policy must contain provisions for institution of a legal hold when necessary.”

“So while it’s not unreasonable to destroy records after a specified period in compliance with a company’s general policy, before destruction begins, one must be certain that a duty to preserve that may require suspension of that routine destruction has not arisen and is not likely to arise,” Duffy adds.

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Recently, a federal court in Illinois held in Thorncreek Apartments III, LLC v. Village or Park Forest that a defendant waived the attorney-client privilege when it inadvertently produced 159 documents that it later claimed were privileged. The defendant’s failure to take reasonably adequate measures to prevent such disclosure serves as a lesson for all attorneys, especially those who manage large, rolling document productions with the help of a vendor.

During its collection and production efforts, the defendant used a vendor to produce documents stored on back-up tapes according to a 3-step process: (1) a search of the back-up tapes using agreed-upon “search terms”; (2) a review of the yielded documents on a database accessible to defense counsel only; and (3) the placement of the yielded documents onto an online production database for the plaintiffs to review. The defendant produced over 250,000 pages of documents over a seven-month period. In the meantime, the defendant did not produce a privilege log and advised the plaintiffs that no privileged documents were withheld.

When the production was completed and the plaintiffs attempted to use certain documents at a deposition, the defendant immediately objected, claiming privilege and inadvertent disclosure, which objection counsel reaffirmed after the deposition. Defense counsel provided a privilege log four months after the deposition, which identified 159 previously-produced documents that were allegedly inadvertently disclosed. After resolving the waiver issue as to all but six of the 159 inadvertently produced documents, the plaintiffs sought the Court’s assistance, arguing that the six documents were not privileged or if they were, that the privilege was waived.

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The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.

Right out of the gate, the panelists and audience examined and debated Judge Scheindlin’s aggressive litigation hold protocol set forth in Pension Committee and the ramifications and aftermath it has since had on litigants. The attendees were treated to an in-depth, interactive discussion of two critical opinions from 2010-11 decided in the Southern and Western Districts of New York. These decisions made it clear that there are other approaches to the problems raised in Pension Committee other than the “gotcha game” that has since ensued. The panelists and attendees discussed the significance of the split in authority clearly seen in Pension Committee (S.D.N.Y), Orbit One (S.D.N.Y.) and Steuben Foods, Inc. (W.D.N.Y.). The implications of whether the more liberal and practical approach found in the Orbit One and Steuben Foods decisions were also discussed at length, during which time the attendees were asked to offer their insights on whether and how they would approach their existing litigation hold protocols as a result of these recent opinions. This examination served as a perfect segue into the analysis of other key issues raised by litigation hold protocols and the production of electronic evidence, including spoliation of evidence, sanctions, and waiver of privileges by inadvertent production of data.

In addition to the considerable discussion afforded to the recent changes in the litigation hold area, the panelists next offered a thought-provoking analysis of the important developments shaping the continued evolution of e-discovery disputes stemming from discovery requests for information maintained by a litigant or witness on social media host sites. As social media has become a modern replacement for face-to-face communications, its role in the litigation of cases has increased exponentially. The panel debated the primary question of whether counsel should be afforded access to the private sections of a litigant’s Facebook, MySpace or other social media account and how the courts and local bar associations answered this question over the past year. The discussion also focused on what measures counsel can and should employ to obtain access to this private information once litigation is threatened. As the panel emphatically stressed, the past year’s decisions and bar association opinions clearly demonstrate that “friending” a litigant or using deceptive practices to gain private access is extremely risky and could result in discipline. The issue of spoliation of evidence in this context, an issue recently addressed by the District of New Jersey in Katiroll Company, Inc. was also addressed by the panel.

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On October 3, 2011, the United States Court of Appeals for the Ninth Circuit determined that the Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. §§ 2510 2522, applies to foreign citizens, giving them the same privacy protections Congress afforded U.S. citizens in connection with the disclosure of electronic data by third-parties service providers.

The facts of Suzlon Energy Ltd v. Microsoft Corporation demonstrate how U.S. law can be used both as a sword and a shield with respect to gathering information abroad.The case arose because of a civil fraud proceeding in the Federal Court of Australia by Suzlon Energy against a citizen of India named Rajagopalan Sridhar. Mr. Sridhar maintained a Microsoft Hotmail email account, and his emails were stored on a domestic server by Microsoft. Suzlon sought Sridhar’s emails from Microsoft by having issued a subpoena in accordance with 28 U.S.C. § 1782, which allows the gathering of evidence for use in a foreign proceeding.The Court was tasked with resolving whether Microsoft would be required to produce Mr. Sridhar’s emails notwithstanding language in the ECPA providing that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1). Microsoft is an “electronic communication service” because it “provides to users . . . the ability to send or receive wire or electronic communications.” “Users,” in turn, constitute “any person” who uses the service.

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The “Dos” and “Don’ts” of litigation hold notices were discussed at the Fifth Annual Gibbons E-Discovery Conference on November 3, 2011. The distinguished panel included the Honorable John J. Hughes, U.S.M.J. (Ret.), the Director and Chair of the firm’s E-Discovery Task Force Mark Sidoti, and Melissa DeHonney, an associate in the Gibbons Business & Commercial Litigation Department and member of the firm’s E-Discovery Task Force. The panel’s PowerPoint presentation, which includes a model litigation hold notice, can be found here.

The panel discussed the anatomy of a good litigation hold letter and walked the audience through best practices for drafting each section. Most importantly, the panel stressed that there is a difference between using a “template,” which is then tailored for a particular case, versus a boilerplate form letter, which is never appropriate. The panel emphasized the importance of recognizing that the target audience may not be familiar with legalese. Some other essentials that the panel discussed include:

• identifying an appropriate contact source that custodians can turn to;
• making sure the hold is directed to the proper recipients;
• tailoring the preservation instructions to fit the client’s information technology structure;
• requiring recipients to acknowledge that they received and will comply with the hold;
• and including an explanation of why preservation is important and the consequences of failing to preserve

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Gibbons is pleased to announce that the Honorable Edwin H. Stern (ret.) will present a brief keynote address where he will provide an insider's view of some e-discovery concerns facing the courts today at the Gibbons Fifth Annual E-Discovery Conference, which will be held at the Sheraton Meadowlands Hotel & Conference Center in East Rutherford, NJ.

Mr. Stern joined Gibbons P.C. earlier this month as Counsel in the firm's Business & Commercial Litigation Department after completing his temporary assignment to the New Jersey Supreme Court.

“Gibbons is highly regarded by jurists throughout the state and is becoming a go-to law firm for retired judges who want to devote their considerable insight, knowledge, and professional skills to solving problems for clients while also mentoring younger generations of attorneys,” notes Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “We are proud and excited that someone of Edwin Stern’s caliber is deepening a bench of eminent retired jurists that includes John Gibbons, James Zazzali, and Andrew Moore.”

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Due to the overwhelming popularity of our Fifth Annual E-Discovery Conference, we have changed the location of the event to the SHERATON MEADOWLANDS HOTEL & CONFERENCE CENTER, located at Two Meadowlands Plaza, East Rutherford, NJ. The Sheraton Meadowlands is only a few miles from downtown Newark, and is accessible via the New Jersey Turnpike, Garden State Parkway, and taxi service from the New Jersey Transit Secaucus train station (one stop from Newark or New York Penn Station).

This new venue allows us to accommodate additional attendees, so please call (973) 596-4452 or email rsvp@gibbonslaw.com as soon as possible to reserve your spot at the conference.

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Have you ever felt daunted by the prospect of issuing a litigation hold? If so, you are not alone — particularly in today’s dynamic legal environment, where even judges within the same judicial district disagree as to what is required to satisfy the duty to preserve evidence and avoid spoliation sanctions. Please join us at Gibbons Fifth Annual E-Discovery Conference, where we will deconstruct an effective litigation hold notice paragraph-by-paragraph, explaining why each element is included and how to tailor hold notices to any litigation. We will also explain recent developments in this area of the law, which you can draw on to position your company to effectively issue and administer litigation holds, avoid game-changing spoliation sanctions and return the focus to litigating matters on the merits.

We are privileged to have the Honorable John J. Hughes, U.S.M.J. (Ret.), joining this discussion, marking this esteemed jurist’s third year participating in the firm’s annual e-discovery conference. Joining Judge Hughes will be Gibbons Director and Chair of the firm’s E-Discovery Task Force, Mark Sidoti, and Melissa DeHonney, an associate in Gibbons Business & Commercial Litigation Department who is also a member of the firm’s E-Discovery Task Force and an editor of this blog.

If you would like to attend but have not yet registered, please RSVP to (973) 596-4452 or rsvp@gibbonslaw.com. We look forward to seeing you at the conference!

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In its October 3, 2011 issue, the editorial team of LitigationWorld chose Mark S. Sidoti’s September 28, 2011 blog post entitled New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures as its Pick of the Week. LitigationWorld is a free weekly email newsletter that provides helpful tips regarding electronic discovery, litigation strategy, and litigation technology. Each week, the editorial team chooses the most noteworthy and insightful articles on the litigation web published during the previous week and, from those, selects one as their Pick of the Week.

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Failure to properly preserve electronic evidence continues to provide at-risk litigants with the ability to steer the court from scrutiny of the merits, and drastically shift the balance of litigation leverage.

The latest example of this is NVE, Inc. v. Palmeroni out of the District of New Jersey. This case involved NVE’s claims of breach of fiduciary duty against its former employee Palmeroni. At least on the specific Complaint allegations, NVE’s case against Palmeroni seems formidable -- while working as a NVE salesman, the defendant allegedly entered into secret kickback arrangements with product purchasers, and formed a dummy entity with another NVE employee to divert sales of NVE’s products for their own benefit. Palmeroni was terminated in 2006 and later sued by NVE. Seems like a pretty good case, if the court and a jury could get to it.

But the defendant, not unexpectedly, had other ideas. After initial discovery and communications between counsel raised concerns, Palmeroni moved for spoliation sanctions claiming the NVE has discarded relevant documents and destroyed key sources of relevant information before the litigation commenced but after it was on notice of the potential for litigation. District Judge Esther Salas granted the motion, directing an adverse inference instruction and monetary sanctions in the form of attorneys fees incurred to pursue the missing evidence and costs of the motion. The Court specifically found that NVE:

1. failed to institute and document a litigation hold as of the date of the defendants termination -- years before the complaint was filed;
2. permitted the retirement and effective destruction of an invoicing and sales data system at or around the time of the defendant's termination;
3. disposed of relevant stored documents -- purportedly in the ordinary course of business -- several years after the litigation hold was triggered, without knowledge of or input from counsel; and
4. delayed in notifying the defendant of the destruction of the evidence until well into the discovery process.

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So you, as an attorney, want to be Facebook “friends” with an unrepresented party or witness? Well, what is your motivation? If you practice in California and want to use the private information in furtherance of your client’s case, think again because doing so may violate ethical rules and constitute engaging in “impermissible deception.”

On May 24, 2011, a committee of the San Diego County Bar Association (“Committee”) concluded that sending Facebook “Friend” requests to represented parties, such as high-ranking employees of a defendant-employer in a wrongful discharge matter, constitutes an ethical violation for two reasons. See SDCBA Legal Ethics Opinion 2011-2 (“Op. 2011-2”). First, such a request runs afoul of the California Rule of Professional Conduct that prohibits ex parte communications between an attorney and a represented party. Second, when an attorney communicates only his or her name and nothing more while attempting to access private information for purposes of advancing a client’s case, that conduct constitutes “impermissible deception.” See id. at 11-13.

The Committee explained that the fundamental inquiry is whether the Friend request to “the represented party is motivated by the quest for information ‘about the subject of the representation,’” and if so, then the Friend request is “‘about the subject matter of that representation,’” in violation of the ethical rules. Op. 2011-2 at 3 (citing to California Rule of Professional Conduct 2-100); see also ABA Model Rule 4.2 (same); New Jersey Rule of Professional Conduct 4.2 (same). Notably, in concluding that the motive was to seek information for use in the litigation, the Committee compared the Friend request in “the virtual world” to an attorney’s similar information request from the represented party in “the real world.” Id. (For recent articles from this posting’s authors emphasizing why attorneys should compare the ethical implications of “real world” and “virtual world” scenarios in the social networking context, click here and here).

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On June 17, 2011, United States District Court Judge Scheindlin issued a brief opinion and order withdrawing her February 7, 2011 opinion, which had held that certain metadata should be considered an “integral part” of an electronic record and must be produced by the government in responding to a Freedom of Information Act (“FOIA”) request. Our prior posting on this opinion can be found here. The Court withdrew its June 2011 opinion because “subsequent admissions” have revealed that the Court’s decision “was not based on a full and developed record.”

While Judge Scheindlin’s order makes clear that her February 2011 opinion will have no precedential value, it is not likely the end of this story. This influential jurist’s strongly worded views on the importance of metadata namely, that it is “well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record,” National Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655, at *11 (S.D.N.Y. Feb. 7, 2011), are likely to resurface in her future opinions and those of other courts when the right facts present. Likewise, given the considerable attention afforded to this and other e-discovery rulings by Judge Scheindlin, we would also anticipate that the withdrawn opinion’s list of metadata that “should accompany any production of a significant collection of ESI,” id. at *27 n.41, will likely be viewed by other courts as guidance on this issue.

Accordingly, counsel should continue to be mindful of the guidelines set forth in the February 2011 opinion, both with respect to their meet and confer obligations and to assuring that their preservation and collection efforts are sufficient to, among other things, permit the production of metadata.

Jennifer A. Hradil is a Director on the Gibbons E-Discovery Task Force.

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On April 27, 2011, the Court denied Defendant Kolon Industries, Inc.’s (“Kolon”) motion for sanctions against E.I. du Pont De Nemours and Company (“DuPont”) for alleged spoliation of four employees’ e-mail accounts and documents in litigation regarding trade secret misappropriation, theft of confidential information and other related business torts. E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, 2011 U.S. Dist. (E.D. Va. Apr. 27, 2011). In essence, the Court concluded there was no spoliation because DuPont’s efforts to implement and update litigation hold notices – as well as the company’s commitment to its electronic discovery obligations – were reasonable.

The underlying litigation was based upon the alleged actions of a former DuPont employee, who signed a nondisclosure agreement when he was hired and an employee termination statement in February 2006 where he affirmed that he had returned all documents and would not divulge any trade secret or confidential information. Id. at *5. Despite that affirmation, he retained various computer files containing secret and confidential trade information and then was hired by Kolon as a consultant Id. at *4-6. After DuPont became aware in April or May 2007 that its former employee was consulting for Kolon, DuPont issued its First Hold Order in June 2007, which identified eighteen (18) “key individuals” in the relevant business unit; a Second Hold Order to 2,500 employees when it instituted the litigation in February 2009, and a Third Hold Order, mere days after Kolon filed its Answer and Counterclaim in April 2009. Id. at *7-10.

Consistent with its e-mail deletion policy, DuPont had deleted the former employees’ e-mails and also deleted the employees’ documents, leading to Kolon’s motion for sanctions. Id. at *3. In essence, Kolon argued that DuPont issued its First Hold Order over a year too late; that DuPont’s First Hold Order should have been circulated to a wider group of employees; and, that the deletion of one former employee’s e-mail account occurred under “rather suspicious circumstances.” Id. at *22. Kolon alleged DuPont’s actions resulted in “substantial prejudice” and asked the Court to make various factual findings related to the alleged spoliation, or to issue an adverse inference jury instruction. Id. at *22, 25-26.

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In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as “an easy way to quickly download to your computer everything you've ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.” The Facebook announcement included a short video detailing how to use the feature. Cnet TV has a more in-depth video. Craig Ball also wrote an article about this feature in the February 23, 2011 issue of Law Technology News.

Introduction

The DYI feature is potentially useful to attorneys in at least two ways: preservation of their client’s electronically stored information (“ESI”) and discovery of an adversary’s ESI. If your matter involves an issue that will likely require your client to produce evidence from his or her Facebook account, it may be advisable for your client to preserve the evidence by downloading his or her Facebook information. It is generally better to err on the side of preservation than to risk the possible penalties of not preserving evidence. Read more about the risks of failing to preserve ESI here. Similarly, if you think that your adversary’s Facebook account contains ESI that may be relevant to the prosecution or defense of a claim, then it may be wise to demand that the adversary preserve that information by using the DYI feature and produce the downloaded files. But, how effective is the DYI feature as a discovery tool? And, is there any way to be sure that the adversary is not hiding any information?

Testing the DYI Feature as an E-Discovery Tool

The DYI feature rolled out to more than 500 million Facebook users over the span of a number of months. When it finally hit my account, I decided to test it out to determine its usefulness as an e-discovery tool. Being a bit of a cynic, my main concern was whether the feature archives deleted content in the event that an unscrupulous adversary intentionally deletes relevant Facebook information. Will the DYI feature uncover the deleted content? I decided to investigate.

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The explosion of social media and the universal availability of electronic devices have presented a host of courtroom issues the judicial system must address, ranging from substantive legal questions like the admissibility of Facebook accounts and Twitter postings, to more ministerial issues such as the extent to which electronic devices may be utilized by counsel in the courtroom. While different courts have reached varied conclusions on these questions, courts have uniformly rejected any attempt by jurors to use technology to research a case or to post information about a case to social media sites, and increasingly use pre-trial and post-closing jury instructions.

The Judicial Conference of the United States has endorsed proposed model jury instructions aimed at advancing two goals:

1. Preventing jurors from independently researching a case, including through the internet or other electronic means; and
2. Preventing jurors from communicating about the case, including by electronic means such as e-mail or Facebook.

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A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be established -- proof of authorship and timeliness. These evidentiary foundations are not easy to establish in the ever-changing medium of social media. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content difficult. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, recreating a post or a profile from a particular moment in time can be difficult, if not impossible, depending on how a partciluar site functions.

In discovery, not only should litigants work to identify relevant social media, counsel should also seek to discover the facts that will be necessary to introduce social media evidence at trial. This includes information that may establish authorship, such as nicknames used by a party which may mirror an online profile, the identity of users who have viewed or commented on social media content and information relating to the inner-workings of a social media site. This information will aid in authenticating social media evidence and ensuring its admission into evidence.

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To echo a popular tag line frequently heard on Top 40 radio stations, when it comes to court-imposed sanctions for e-discovery failures, “the hits just keep on comin’!” According to a recent study published in the Duke Law Journal, sanctions for e-discovery violations are occurring more frequently than ever. Dan H. Willoughby, Jr., Rose Hunter Jones, Gregory R. Antine, Sanctions for E-Discovery Violations: By The Numbers, 60 Duke Law J. 789 (2010). However, there may be light at the end of the tunnel, as it appears that the frequency of sanctions awards is trending downward after hitting an all-time high in 2009.

Increase in Sanctions

The Duke study was based upon a review of 230 sanctions awards in 401 federal cases decided before January 1, 2010. The authors found sanctions motions and awards have increased significantly since 2004, and the so-called “safe harbor” provisions of Federal Rule of Civil Procedure 37(e) have provided minimal cover for parties and attorneys. It is not clear whether this increase is due to the complexities of e-discovery rules as embodied in the 2006 amendments to the FRCP, or rather, due to an increase in bad behavior. In any event, the authors note that leading practitioners have advocated for more uniform standards and guidelines that embrace concepts of “reasonableness” and “proportionality” and a standardized adverse inference instruction.

Significance of Increase and Types of Cases

According to the study, there were more e-discovery sanctions cases decided and sanctions awarded in 2009 than in any other year. In fact, the staggering magnitude of the increase is reflected by the fact that the number of 2009 e-discovery sanctions cases and awards exceeded the aggregate total in all years prior to 2005. The study also revealed that sanctions motions have been filed in all federal courts, in all types of cases, and have been granted based upon a mix of rules of procedure, statutes and powers. One of the more interesting statistics is that defendants have been sanctioned three times more often than plaintiffs, a statistic that has remained constant over the past decade.

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In her most recent e-discovery opinion, United States District Court Judge Scheindlin held that certain metadata should be considered an “integral part” of an electronic record and must be produced by the government in responding to a Freedom of Information Act (“FOIA”) request. National Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 U.S. Dist. (S.D.N.Y. Feb. 7, 2011). Judge Scheindlin also expressly admonished practitioners for failing to meet and confer concerning the form of ESI productions and reminded counsel that such cooperation and communication is required “to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production.” Had counsel in the case before her done so, the costly motion practice attendant to this FOIA production could have been avoided.

Under FOIA, the government is required to produce information in any form requested, provided that “the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B). Given the dearth of case law interpreting this provision, the court looked to Rule 34 for guidance, noting that, in the context of civil litigation, “[b]y now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” 2011 U.S. Dist. LEXIS 11655, at *11. In the court’s view, producing a significant volume of images without accompanying load files, in effect, inappropriately downgrades the ESI. Id. at *30.

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Confidentiality agreements and protective orders are a commonplace, yet indispensable, feature of modern commercial litigation. These agreements are typically the end result of a series of negotiations between counsel specifically designed to balance the seemingly incompatible objectives of ensuring ready access to vital evidence and ensuring that sensitive information, such as trade secrets, remains carefully shrouded from the public eye and industry competitors. The importance of ensuring that sensitive information remains confidential vis-à-vis the world at large during a lawsuit cannot be overstated. Confidentiality agreements often provide detailed provisions addressing who may access information and how information may be used. Once the litigation has concluded, parties are often faced with the sometimes challenging task of ensuring that all confidential information is either returned to the producing party or destroyed. Without proper planning, it may be difficult to put the proverbial genie back into the bottle.

It is this final step that became the subject of a recent case decided by the Appellate Division of the Supreme Court of New York, Oxxford Info. Tech., Ltd. v Novantas LLC. Upon settlement of the underlying litigation, plaintiff’s counsel learned that large volumes of defendants’ confidential business data had inadvertently been backed up onto the plaintiff’s law firm’s disaster recovery back-up tapes. After analyzing the situation, plaintiff’s counsel determined that the identification and complete removal of all of the defendants’ confidential information from its back-up systems would be extremely costly. Thus, plaintiff moved to modify the confidentiality order to permit its counsel to retain the information on the tapes subject to certain proposed safeguards. The motion was denied, and plaintiff appealed.

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Magistrate Judge John M. Facciola recently struck down, without prejudice, a motion for sanctions for the alleged destruction of electronic communications, finding it “premature to consider the question of sanctions until discovery ends and the Court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused.” Davis v. Grant Park, No. 08-cv-1764 (PLF/JMF), 2010 U.S. Dist. LEXIS 118853, at *3-*4 (D.D.C. Nov. 9, 2010). Deeming the assessment of prejudice the critical issue, and citing D’Onofrio v. SFX Sports Group, Inc., No. 06-cv-687 (JDB/JMF), 2010 U.S. Dist. (D.D.C. Aug. 24, 2010) (Facciola, J.), Judge Facciola determined that “the nature and extent of the loss suffered” could not be “accurately gauged” until “all the information that is available” is gathered, which occurs at the close of discovery. Id. at *3. As such, the court directed plaintiff to decide whether to renew the motion after discovery ended, noting further that a renewed motion should “show as clearly as possible the nature of the prejudice,” and that defendant’s submission should “make a similarly precise showing in opposition.” Id. at *4. The decision is consistent with D’Onofrio, wherein Judge Facciola instructed, “[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.” 2010 U.S. Dist. LEXIS 86711, at *11 (citing Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996)). Judge Facciola’s directive serves as an important reminder to litigants that any sanctions imposed should ultimately bear a relationship to the prejudice suffered by the other party, and that such prejudice may not be discernable until the close of discovery in a contested matter.

Jennifer Marino Thibodaux is an Associate in the Gibbons Business & Commercial Litigation Department.

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Following the lead of other state courts, Delaware’s Court of Chancery -- known for handling of some of the nation’s most complex corporate matters -- has adopted guidelines for the preservation of electronically stored information (“ESI”).

The guidelines reference counsel’s “common law duty to their clients and the Court” to preserve ESI, noting that a “party to litigation must take reasonable steps to preserve information, including ESI, that is potentially relevant to the litigation and that is within the party's possession, custody or control.” At a minimum, this means that “parties and their counsel must develop and oversee a preservation process,” including the dissemination of a litigation hold notice. The guidelines further indicate that “counsel oversight” is “very important” and that the adequacy of such oversight is to be evaluated on a “case-by-case basis.” The guidelines reference “serious consequences,” i.e., potential sanctions, that may befall a party “or its counsel” if ESI is not adequately preserved, and note that in some cases a preservation notice must be sent prior to the commencement of litigation. The guidelines specifically state that “the Court will consider the good-faith preservation efforts of a party and its counsel” when deciding whether sanctions are warranted in a given case.

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A panel of New York state and federal judges recently convened to discuss the differing standards between New York state and federal law governing the pre-litigation preservation of ESI and to make recommendations to resolve such inconsistencies. The panel’s findings are reported in the publication, Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in New York State and Federal Courts. The critical issue is determining when a litigant’s duty to preserve ESI is triggered, how that duty is fulfilled, and the potential consequences for breaching the duty. The panel recognized that the disparate treatment that litigants may receive in New York state courts versus federal courts could lead to a great deal of confusion and uncertainty, even for parties that cautiously implement ESI strategies with an eye towards future litigation. For example, the trend in New York federal courts has been in favor of the adoption of per se culpability when determining a litigant’s state of mind. In Zubulake, the court held that once the duty to preserve ESI attached, any destruction of documents would be, at a minimum, negligent. In Pension Committee, the court held that failure to issue a written litigation hold constituted “gross negligence.” State courts, on the other hand, have largely declined to adopt such per se rules, preferring instead to analyze a litigant’s culpability on a case-by-case basis, as the courts did in cases such as Deer Park and Ecor Solutions.

The panel identified three separate mechanisms to resolving the potential conflict of laws and uncertainty for litigants:

1. “exercising judicial discretion and respect for the other system by considering the separate bodies of law when deciding specific cases;”
2. “adopting procedural rules requiring deference by one court system to the other system’s law governing the pre-litigation duty to preserve ESI,” akin to Federal Rules of Evidence 302 and 501; and
3. “determining whether the pre-litigation duty to preserve ESI is a matter of substantive law under the Erie doctrine.

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Lawyers for Civil Justice ("LCJ") recently submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to the preservation of information in litigation. The comment, which can be found here, pleads for a change in the current approach to preservation of electronically stored information ("ESI"), in which preservation obligations are largely created by individual courts on an ad hoc basis. This approach, LCJ points out, creates heavy burdens on litigants: The cost of preservation is too high, the risk of spoliation sanctions is too great, and the impact of ancillary litigation proceedings on discovery disputes is too debilitating. Substantive issues in many cases have become overshadowed by issues of preservation.

Part of the problem, LCJ points out, is that the concept of spoliation has not evolved to meet the demands of 21st Century litigation. Courts do not simply ask whether evidence was destroyed to prevent its use in litigation, but instead focus too heavily on inadvertent destruction of evidence, which requires complex determinations as to whether a party took "reasonable" steps to preserve. LCJ argues for a modified approach, in which courts focus less on the lost evidence, and more on the remaining evidence. Ideally, LCJ suggests, Congress should codify preservation obligations to the extent possible and create bright line rules to replace the current maze of case law.

LCJ's approach is bold and fresh, particularly in its recommendation that parties only be subjected to sanctions for willful destruction of evidence. This approach could certainly cut down on litigation of ancillary preservation issues, particularly with some well thought out guiding commentary. To be sure, no model is likely to prove perfect, and adoption of LCJ's model could have drawbacks of its own, such as removing the incentive for individuals and companies to diligently preserve some information or categories of ESI (as long as destruction is not willful). However, LCJ's approach appears to strike a reasonable balance between litigants' need for full discovery and reduction of uncertainty and costs, both to litigants and the Courts, associated with the current model. This approach is worth a closer look.

Paul E. Asfendis is an Associate on the Gibbons E-Discovery Task Force.

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Employers wanting to prohibit damaging communications from being made about them by employees through blogging and rapidly evolving social media such as Facebook, Twitter, and LinkedIn should be aware of a recent National Labor Relations Board (NLRB) Complaint against American Medical Response of Connecticut, Inc. asserting that two of the more common employer restrictions on employee blogging and social media communications constitute unfair labor practices and are, therefore, unlawful. In its News Release, the NLRB pointed to two of the provisions in the company’s blogging and internet posting policies as being unlawful under Section 7 of the National Labor Relations Act (NLRA):

• “one that prohibited employees from making disparaging remarks when discussing the company or supervisors;”
• “and another that prohibited employees from depicting the company in any way over the internet without company permission.”

This position, which emanates from the NLRB’s Office of the General Counsel, seems to differ from a December 2009 Advisory Memorandum from the NLRB General Counsel’s Division of Advice that found lawful the social media policy of Sears, Roebuck and Co. prohibiting, among other things, “[d]isparagement of company’s . . . products, services, executive leadership, employees, strategy, and business products.”

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On October 28, the Gibbons E-Discovery Task Force hosted its fourth annual full day E-Discovery Conference, with more than 100 clients, in-house counsel and other contacts in attendance.

Devoted to the latest developments in electronic discovery and corporate information management, this program included speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judges John Hughes and Ronald Hedges, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who presented and moderated panels were Task Force Chair, Mark S. Sidoti, Chair of the firm’s Employment Law Department, Christine A. Amalfe, and Task Force members, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Lan Hoang and Jeffrey L. Nagel.

The sessions covered are listed below, along with links to the handout materials provided for each session:

• The E-Discovery Landscape: 2010
• E-Discovery in the Cloud
• Electronic Communication Policies & Privacy in the Wake of Stengart and Quon
• Emerging Technologies in ESI Preservation, Collection and Processing

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Gibbons Fourth Annual E-Discovery Conference concluded with a panel discussion on emerging technologies in the management of electronically stored information (“ESI”). The panel discussed the burdens of e-discovery and offered presentations on emerging technologies to make ESI management and production more cost effective, efficient and least disruptive of business.

• Cloud-Based Litigation Hold Management - Sarah K. Centrella, Director of Fusion Cloud, Exterro, Inc., discussed the emerging technologies that allow companies and/or law firms to implement cloud-based litigation hold management through automated products that record notifications and acknowledgements of litigation hold notices, provide automated reminders and escalations and compile audit trails compliant with the Federal Rules of Civil Procedure.
• Forensically Sound and Economical Self-Collection of ESI - Carmen Oveissi Field, AFT Principal, Deloitte Financial Advisory Services LLP, discussed economical collection and self-collection practices and technologies, the forensic concerns of self-collection, assessment of data infrastructure, and the importance of communication between legal counsel and IT departments in the development of a defensible ESI collection plan.
• Efficient Data Processing - Eric Shirk, Principal and Technical Consultant, UHY Advisors, discussed the new technologies available to process data in the most effective manner in order to reduce the amount of reviewable data, as well as data processing and review best practices to reduce production errors and inadvertent disclosure of privileged materials.
• New Keyword Technologies - Bobbie Basile, Senior Consultant, Information Analysis at RenewData, discussed the development of keyword searches from basic boolean word sequences to the analytical model that creates a mathematical formula of concepts based on the core issues of a matter that track trends and word usage, resulting in an increase in the efficiency and accuracy in processing of ESI for relevancy.

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The Sedona Conference’s^® most recent publication, Commentary on Proportionality in Electronic Discovery, sets forth six guidelines for assessing whether a discovery request or obligation should be limited because it is disproportionate to the likely benefit. The Sedona Conference^® noted that courts have often failed to apply the proportionality doctrine when warranted and that it is increasingly important for courts to do so given the volume and expense associated with discovery of ESI. The Federal Rules of Civil Procedure provide ample authority for, and in some instances mandate, the application of a proportionality analysis. See Rule 26(c), Rule 26(b)(2)(C), and Rule 26(g). The New Jersey Court Rules are closely modeled after the Federal Rules in this respect. See R. 4:10-2(g), 4:10-3. The Sedona Conference’s^® six guidelines for assessing proportionality expound upon the principles in the rules and, in one instance, would expand their application:

• The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation. This Guideline, along with The Sedona Conference’s^® recent Commentary on Legal Holds, encourages parties to determine the appropriate scope and manner of presentation by considering the associated burdens and costs versus the potential value and uniqueness of the information. The Guidelines likewise encourage courts to apply proportionality principles when evaluating whether a party has fulfilled its preservation obligation. While this approach is reasonable, parties may be unlikely to unilaterally decide not to preserve a particular source in light of the associated cost and/or burden until courts engaging in hindsight evaluation routinely do so, particularly given the heavy sanctions that some courts have imposed for failure to adequately preserve ESI.
• Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources. This Guideline acknowledges the reality that it is unlikely that any one source is the least burdensome, most convenient and least costly. As a result, the Guidelines emphasize that these are factors that should be weighed. The Guidelines also suggest that phasing discovery, beginning with the most accessible, least expensive sources should be considered as a means of helping the parties and court determine whether additional discovery from more burdensome and expensive sources is necessary and/or can be effectively limited.

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The failure to properly implement, monitor and refine legal holds can have devastating results, transforming manageable legal issues into high-stakes nightmares. To offer guidance on avoiding this, on Thursday, October 28, 2010, Gibbons P.C. held its Fourth Annual E-Discovery Conference, where it assembled a panel of experts for a roundtable discussion on legal hold best practices after the issuance this year of three must-read decisions on this topic: Pension Committee, Rimkus and Victor Stanley II.

The roundtable discussion focused on identifying proactive measures and creative strategies for companies of all sizes to efficiently and effectively meet their e-discovery obligations. The panel included respected former United States Magistrate Judges for the District of New Jersey Ronald J. Hedges and John J. Hughes. Also offering their expertise were in-house counsel Kevin P. Gallagher, Assistant General Counsel, Host Hotels; Edward O. Gramling, Discovery Counsel at Pfizer; Jonathan M. Remshak, Senior Corporate Counsel at Konica Minolta Business Solutions USA, Inc.; and Korin A. Neff, Group Vice President, Global Privacy, Wyndham Worldwide Corporation. Galina Datskovsky, Senior Vice President of Information Governance at Autonomy and President-Elect of ARMA International, rounded out the panel.

The panelists began by offering an overview of the e-discovery landscape following Pension Committee, Rimkus and Victor Stanley II and discussing the conflicting negligence standards articulated in Pension Committee and Rimkus. The discussion progressed to examine what constitutes negligence in connection with a party’s failure to institute timely written legal holds, as well as the emerging trend of a lack of judicial tolerance for parties who do not understand and take seriously their obligation to preserve evidence.

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Facebook, Twitter, LinkedIn and MySpace are among the top social media websites that have culturally transformed electronic communications and social interactions. Inevitably, these platforms have also affected litigation practice and present myriad ethical dilemmas. One such dilemma is whether an attorney can access an adverse party’s social networking website to obtain information about the party, including impeachment material.

In Professional Ethics Opinion 843, issued on September 10, 2010, the New York State Bar Association's Committee on Professional Ethics concluded that an attorney representing a party in pending litigation may access the public pages of another party's social networking website to obtain publicly available information about that party. The Committee observed that some social networking websites and/or users do not require pre-approval or consent to access member profiles, and thus the profiles are accessible to all members. While the Committee found that such information on social networking websites is akin to publicly accessible online or print media, it also made clear that there are limitations to the attorney’s conduct on social networking sites:

• An attorney cannot “friend” or otherwise make contact with the party. Such conduct would fall within the purview of Rule 4.2 of the New York Rules of Professional Conduct (“Rules”), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s lawyer.

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The Gibbons E-Discovery Task Force will host its fourth annual full day E-Discovery Conference for corporate counsel and information technology professionals on October 28, 2010, in the firm’s Newark, NJ office. Devoted to the latest developments in electronic discovery and corporate information management, this program will include speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judges John Hughes and Ronald Hedges, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who will present and moderate panels are Task Force Chair, Mark S. Sidoti, Chair of the firm’s Employment Law Department, Christine A. Amalfe, and Task Force members, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Lan Hoang and Jeffrey L. Nagel.

This year's conference will cover topics such as "E-discovery in the Cloud: the Impact of Cloud Computing on E-discovery," "Electronic Communication Policies & Privacy in the Wake of Stengart & Quon," and "Legal Hold and Sanctions: Victor Stanley II, Pension Committee & Rimkus" and “Emerging Technology for ESI Preservation, Collection & Processing,” among other topics.

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