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

Although the Federal Rules of Civil Procedure were updated in 2006 specifically to deal with electronically stored information (“ESI”), Bankruptcy Courts and Bankruptcy practitioners have had little bankruptcy-specific guidelines for managing ESI and electronic discovery issues. As a result, the ABA commissioned the Electronic Discovery (ESI) in Bankruptcy Working Group “to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve [ESI] in bankruptcy cases.” On March 15, 2012, the Working Group published their interim report on ESI in bankruptcy cases in an effort to invite and stimulate comments from a wider audience regarding how ESI issues should be handled in (i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.

The Working Group’s primary focus has been on a Chapter 11 debtor-in-possession’s obligation to preserve ESI in connection with adversary proceedings, contested matters and the bankruptcy case itself, as well as the obligation of non-debtor parties to preserve ESI. Although the report differentiates between cases based on the size of the bankrupt entity and whether it has commenced a reorganization or liquidation proceeding, the principles espoused throughout the report are similar, with the differences primarily being focused on the economic constraints of each type of case.

The proposed standards, not surprisingly, contemplate that the duty to preserve ESI applies in the bankruptcy context. Tracking the traditional standards, the duty to preserve ESI arises when the lawsuit is filed or potential litigation matters become reasonably anticipated. Conversely, the actual or anticipated filing of a bankruptcy case would not, by itself, require a debtor to preserve every piece of information in its possession. Instead, it would, in general, be appropriate for the debtors to continue following routine document retention programs, consistent with the reasonable anticipation of contested matters and adversary proceedings.

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Pinterest, a play on words of “pin” and “interest,” is a virtual, online “pin board,” where user’s can organize and share things they find on the web. While Pinterest is attracting a loyal community of social media users, the site is also the source of some concern for those same users and owners of intellectual property.

The stated Mission of Pinterest is “to connect everyone in the world through the ‘things’ they find interesting . . . a favorite book, toy, or recipe [which] can reveal a common link between two people. With millions of new pins added every week, Pinterest is connecting people all over the world based on shared tastes and interests.” According to the website, a “pin” is an image added to a user’s Pinterest “board” from either a website or as an uploaded image from a user’s computer. Users add the “Pin It” applet to their web browser, which then allows a user to add a pin (an image) by clicking on the “Pin It” button, and adding the requested pin to the user’s pinboard.

For those individuals and companies looking to capitalize on the free promotion that Pinterest offers, they can add a “Pin It” button to their webpages which looks and functions similarly to the buttons offered by other social media websites. Adding another “button” to companies’ webpages is another avenue to increase the social awareness of a brand or products. While many brand owners, companies and individuals will appreciate being “pinned” by users, there will undoubtedly be those who object.

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On Wednesday, January 18, 2012, thousands of internet companies including Google and Wikipedia protested against the Stop Online Piracy Act (SOPA) proposed by the House and its counterpart in the Senate, the Protect IP Act (PIPA). For example, Wikipedia blacked out its website while Google collected over 7 million signatures for its anti SOPA and PIPA petition. Since the high profile protests, key House and Senate supporters have withdrawn their support, questioning the viability of both bills.

SOPA and PIPA are supported by original content providers such as the movie and music industry. The bills target “rogue” overseas internet sites trafficking copyright material and counterfeit goods. One example is the streaming of movies or television shows for free without the permission of the copyright holder thereby violating the intellectual property held by the music and movie industry. This type of piracy has been ongoing for years since the days of Napster, but avoid U.S. prosecution because the rogue sites are located outside of the country where U.S. laws cannot reach them. The goal of the proposed bills therefore is to starve the rogue sites by barring advertisers, payment facilities, and internet service providers from conducting business with these sites. Harsher criminal penalties are also proposed with a maximum of five years in prison for anyone involved with unauthorized streaming of copyright material.

While both sides agree that rogue sites violating U.S. laws should be stopped, the bills’ detractors argue that SOPA and PIPA also promote censorship and have the unintended consequences of implicating legitimate internet companies within its broad provisions. One particular concern was that user generated websites like YouTube, may be held liable under SOPA and PIPA for the content that its users upload on the site. Other concerns involve implications of an entire website even when only a minor portion link to the infringing content. Critics of SOPA and PIPA also claim that the bills weaken the safe harbor protections available under the DCMA by shifting the burden to the website owner to actively monitor its content for infringing activity.

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On the heels of National Cybersecurity Awareness Month in October, the second panel discussion at the Fifth Annual Gibbons E-Discovery Conference dealt with pressing issues involving cybersecurity and their effect on private industries.

Moderated by Gibbons Director and senior E-Discovery Task Force member Jeffrey L. Nagel, Esq., the panel opened with a presentation by Erez Lieberman, Esq., Deputy Chief of the Economic Crimes Unit and Chief of the Computer Hacking and Intellectual Property Section, Office of the United States Attorney, District of New Jersey. Mr. Lieberman discussed several cases of high profile cybersecurity breaches in recent years and the government’s role in those cases. Mr. Lieberman identified the various types of cybercrimes affecting businesses and provided the audience with a unique understanding of the interaction and coordination between his office, the Secret Service, the Federal Bureau of Investigations, and private companies. Mr. Lieberman also addressed the effect of data breaches on the public sector and the impact of public perception on the business.

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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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The Gibbons E-Discovery Task Force will host its fifth annual full day E-Discovery Conference for corporate counsel and information technology professionals on November 3, 2011, 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 Judge John Hughes, 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 and Task Force members, Paul E. Asfendis, Melissa DeHonney, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Jennifer A. Hradil, Jeffrey L. Nagel, and Mara E. Zazzali-Hogan.

This year's conference will cover topics such as "Cybersecurity 101," "Self-Collection Methods and Technology," and "The 'Do's' and 'Don'ts' of Litigation Holds - Deconstructing the Effective Litigation Hold Notice" and “Information Governance: Drafting Records Management Policies,” among other topics.

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Next time you consider posting something on the Internet, think again as your identity could be revealed! Under the presumed cloak of anonymity, individuals often throw caution to the wind and voice controversial and unfiltered views on the Internet. Based upon a recent ruling by an Indiana State Court in a defamation case, however, the rules of engagement on the Internet may have changed.

To advance claims of defamation field by Jeffrey Miller and his wife, Plaintiffs sought to identify anonymous Internet posters so they could include additional parties as defendants. To facilitate the identification process, Plaintiffs served subpoenas on various media outlets, including The Star, The Indianapolis Business Journal (“IBJ”) and WRTV (Channel 6) to determine the identities of individuals who criticized Mr. Miller anonymously online at those outlets’ websites. When they objected, Judge S.K. Reid ordered The Star and IBJ to turn over identifying information such as the anonymous Internet posters’ protocol addresses and/or Internet providers, which would enable Plaintiffs’ counsel to subpoena the Internet providers for the posters’ real name. On March 21, 2011, The Indianapolis Star (“The Star”) filed an appeal with the Indiana Court of Appeals to decide the question of whether Indiana’s journalism shield law and/or constitutional protections (state or federal) protect media outlets from being forced to disclose the identities of anonymous posters on their websites.

With an increasing number of defamation claims involving anonymous Internet posters, the outcome of this appeal will undoubtedly impact the manner in which Internet posters voice their opinions and/or whether websites will continue to allow individuals to post opinions anonymously. Whether you are a passionate advocate for a cause or a simple cyberbully, you should proceed with caution as your right to free speech may not be as limitless as you think. Going forward, post anonymously at your own risk because your anonymity may be a fiction.

Scott J. Etish is an Associate on the Gibbons E-Discovery Task Force.

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Please join the Gibbons E-Discovery Task Force and the NJ Chapter of Women in E-Discovery in its presentation of "The Internet and Social Media in the Courtroom," hosted at Gibbons on Tuesday, June 21, 2011, from 6:30 to 7:30 pm. CLE credit is available for NJ and NY, and pending for PA. Jennifer A. Hradil will moderate a panel featuring Mara E. Zazzali-Hogan, Jennifer Marino Thibodaux, and Suzanne Herrmann Brock, regarding the use of social media in litigation and the courtroom.

We will discuss how attorneys can use social media and the internet as a resource to research potential jurors and as a discovery tool to obtain potential evidence.

For additional information or to register, contact Andrea Smith at (973) 596-4451 or rsvp@gibbonslaw.com.

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Will developments in technology make lawyers more efficient or will they become extinct? A March 2011 article in The New York Times, entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software,” discussed the significant efficiency and accuracy of e-discovery software in document review over that of human review. Although technology has enabled computers to imitate humans’ ability to reason at even higher levels, rest assured that Armageddon is not looming on the legal profession’s horizon.

The New York Times article discusses the development of e-discovery software that can analyze documents more quickly than human counterparts. The “linguistic” approach enables the user to find and sort documents that are deemed relevant by searching specific words or phrases. More sophisticated linguistic software can even search and filter documents based upon a tool analogous to a thesaurus. For example, if “dog” is deemed the relevant search term, the user may be able to locate documents that contain phraseology such as “man’s best friend.” Meanwhile, the “sociological” approach uses deductive reasoning and is more conceptual. For example, if someone suddenly switches their communication from e-mail to telephone after writing “call me,” it may trigger heightened scrutiny if that person is under investigation for something. Similarly, some software can even detect when an e-mail author’s style has switched from slang and abbreviations to a more formal style.

The article further cited to law firms’ experiences with e-discovery software. One firm utilized software to sort and assess 570,000 documents in two days, which, in turn, enabled the firm to identify in one day 3,070 responsive documents. Another firm cited software’s ability to scrutinize and understand how the company it was suing functioned. Lawyers have also used such tools by searching their clients’ documents during negotiations based on key words that the adversary had designated as such during pretrial proceedings.

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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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In early 2011, the Federal Communications Commission will launch a new, updated website and become the first major federal agency to utilize cloud computing technology to completely support its principal web presence. By moving to cloud technology, the FCC hopes to give a boost to this increasingly popular technology and to improve the FCC’s technology platform. In announcing its move to cloud computing, the FCC’s Managing Director stated, “given that we oversee an industry that should lead this country in innovation, we want to lead the government in the things we do every day as well.” Terremark will manage the FCC’s transition to cloud computing.

The FCC’s move is also designed to motivate other federal agencies to embrace cloud computing. White House Technology Advisors have publicly endorsed and pushed for wider use of cloud computing technology to reduce costs and encourage utilization of current, more efficient and productive software and technology. The FCC’s wholesale move to cloud computing follows a decision by the U.S. General Services Administration to move its e-mail system to Google’s cloud-based applications. NASA is also exploring ways it can employ cloud computing technology.

A significant concern that has prevented some agencies from embracing cloud computing technology is data security. Security issues concerning cloud computing technology were examined at Gibbons Fourth Annual E-Discovery Conference in October 2010. Despite the concern some agencies may have in utilizing cloud computing technology, the pressure will likely grow for agencies to turn towards cloud computing. Businesses and non-governmental organizations that have moved toward cloud computing are already embracing the benefits of the technology, while at the same time developing appropriate steps to guard against its potential risks. The FCC has taken a significant step in ushering in cloud technology to the Federal Government, and other agencies are expected to follow.

Stephen J. Finley, Jr. is an Associate on the Gibbons E-Discovery Task Force.

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Cloud computing is revolutionizing the IT marketplace. With the economy still suffering aftershocks from the Great Recession, companies of all sizes are being pressured to consider cost-cutting strategies. One such strategy is migration to cloud computing services. The “cloud” provides a reasonable solution to reduce cost while at the same time, increasing efficiency and innovation in IT operations. On Thursday, October 28, 2010, Gibbons P.C. held its Fourth Annual E-Discovery Conference, assembling a panel of experts for a roundtable discussion concerning (i) what constitutes “cloud computing,” (ii) how cloud migration can be achieved, and (iii) what risks are posed by “cloud computing” and how to mitigate those risks.

The panel included Michael Aginsky, Chief Technology Officer for Gibbons P.C., Jonathan M. Remshak, Senior Corporate Counsel at Konica Minolta Business Solutions USA, Inc. (“KMBS”); and Galina Datskovsky, Senior Vice President of Information Governance at Autonomy and President-Elect of ARMA International. Luis Diaz, a Director at Gibbons and Senior member of its E-Discovery Task Force, moderated the discussion.

The discussion first focused on the definition of cloud computing, which was described as internet-based computing, whereby shared resources, software, and information are provided to computers and other devices on demand. The panel explained the software as a service model now being pursued by cloud providers that seek to sell these services as utilities like electricity and gas using a “pay as you go” approach. They next compared and contrasted cloud architecture with traditional client-server architectures, highlighting important differences. Lastly, the panelists discussed the ever-expanding list of cloud-based services like Gmail, Salesforce.com and Amazon.com and what this implies for the future.

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