Comments on: A 1L’s Early “Discovery” of What Not To Do http://www.discoveryresources.org/electronic-discovery-community/1l-early-discovery/ Electronic Discovery (E-Discovery) Resources, News & Information Tue, 16 Aug 2011 20:04:43 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Randi Zuccarello http://www.discoveryresources.org/electronic-discovery-community/1l-early-discovery/#comment-492 Randi Zuccarello Thu, 22 Jan 2009 21:45:18 +0000 http://www.discoveryresources.org/?p=513#comment-492 Frank....great piece! In todays e-world, wouldn't you say that Partner A was a little naive in not having backup data stored elsewhere? It is hard to believe that anyone who has any knowledge of computers, ever experienced a computer 'crash', or uses a computer in their business environment could still be naive enough to think that nothing could ever happen to the data. Hasn't anyone ever heard of Murphy's Law? I'm sure Partner A learned a hard lesson from all this. Thanks for a good article! Frank….great piece! In todays e-world, wouldn’t you say that Partner A was a little naive in not having backup data stored elsewhere? It is hard to believe that anyone who has any knowledge of computers, ever experienced a computer ‘crash’, or uses a computer in their business environment could still be naive enough to think that nothing could ever happen to the data. Hasn’t anyone ever heard of Murphy’s Law? I’m sure Partner A learned a hard lesson from all this.
Thanks for a good article!

]]> By: Frank http://www.discoveryresources.org/electronic-discovery-community/1l-early-discovery/#comment-486 Frank Tue, 20 Jan 2009 02:39:26 +0000 http://www.discoveryresources.org/?p=513#comment-486 Nick, As I indicated in the article, I'm only a 1L, so I'm not 100% sure if my responses are correct (note disclaimer above). Anyway, to the best of my knowledge, if the "company computer guy" spilled a drink on your evidence, you'd have a couple of options. If it happened before any notice of litigation as a complete accident, you could probably only sue him for the damages of the property. Using the parties from the Peskoff case as an example, when it comes to the trial, Faber would just have to say what happened. He wouldn't have to produce the data (since it's no longer possible), but Peskoff could just make a case that everything incriminating is on the data. It would come down to a jury determination; Peskoff would need to show, by a preponderance of the evidence, that he's telling the truth. If it happened after notice of litigation, there may be a possibility for Faber to file a separate action against the IT guy for destruction of evidence for pending litigation (known as spoliation). At the trial stage, it would again be a jury determination of whose argument is stronger since the evidence is gone, regardless. As for your other question about determining the validity of the records produced, Peskoff would have to assert claims that the evidence produced was tampered with through affidavit to the judge (including facts about digital signatures, timestamps and other electronic forensics info), and the judge would make the determination viewing the facts in a light most favorable to the opposing party (Faber). If the judge finds that more accurate data is available, he can compel production. If the data is no longer available in its un-tampered state, Faber could be found to have committed the tort of spoliation and/or sanctions may be issued. If the judge is not convinced that foul-play occurred, the jury decides the truth again. Hopefully this whitens some of the grey areas for you. Nick,

As I indicated in the article, I’m only a 1L, so I’m not 100% sure if my responses are correct (note disclaimer above). Anyway, to the best of my knowledge, if the “company computer guy” spilled a drink on your evidence, you’d have a couple of options.

If it happened before any notice of litigation as a complete accident, you could probably only sue him for the damages of the property. Using the parties from the Peskoff case as an example, when it comes to the trial, Faber would just have to say what happened. He wouldn’t have to produce the data (since it’s no longer possible), but Peskoff could just make a case that everything incriminating is on the data. It would come down to a jury determination; Peskoff would need to show, by a preponderance of the evidence, that he’s telling the truth.

If it happened after notice of litigation, there may be a possibility for Faber to file a separate action against the IT guy for destruction of evidence for pending litigation (known as spoliation). At the trial stage, it would again be a jury determination of whose argument is stronger since the evidence is gone, regardless.

As for your other question about determining the validity of the records produced, Peskoff would have to assert claims that the evidence produced was tampered with through affidavit to the judge (including facts about digital signatures, timestamps and other electronic forensics info), and the judge would make the determination viewing the facts in a light most favorable to the opposing party (Faber). If the judge finds that more accurate data is available, he can compel production. If the data is no longer available in its un-tampered state, Faber could be found to have committed the tort of spoliation and/or sanctions may be issued. If the judge is not convinced that foul-play occurred, the jury decides the truth again.

Hopefully this whitens some of the grey areas for you.

]]> By: Nick G. http://www.discoveryresources.org/electronic-discovery-community/1l-early-discovery/#comment-484 Nick G. Sun, 18 Jan 2009 19:39:00 +0000 http://www.discoveryresources.org/?p=513#comment-484 Good article Frank. If, as you said in your example, your company's IT guy were to destroy all of your evidence by spilling his drink on your computer, what can you do legally? Are you just out of luck? That's a gray area that interests me. I assume that this Faber mistake is more common than not, like you said. Another thing that interests me -- and this question may be more out of ignorance about computers than the law -- is how a court can know, with absolute certainty, that e-mail records were not tampered with by the one providing them to the court? In this case, if it were not for Facciola's suspicion, would it have been left up to the attorneys to blow the whistle on the absence of e-mails from '01 to '03? Overall really unique case, and good read. Good article Frank. If, as you said in your example, your company’s IT guy were to destroy all of your evidence by spilling his drink on your computer, what can you do legally? Are you just out of luck? That’s a gray area that interests me. I assume that this Faber mistake is more common than not, like you said.

Another thing that interests me — and this question may be more out of ignorance about computers than the law — is how a court can know, with absolute certainty, that e-mail records were not tampered with by the one providing them to the court? In this case, if it were not for Facciola’s suspicion, would it have been left up to the attorneys to blow the whistle on the absence of e-mails from ’01 to ’03?

Overall really unique case, and good read.

]]> By: Tony http://www.discoveryresources.org/electronic-discovery-community/1l-early-discovery/#comment-479 Tony Fri, 16 Jan 2009 16:59:11 +0000 http://www.discoveryresources.org/?p=513#comment-479 From a fellow 1L, I found this article both insightful and well-done. Faber makes one of the classic mistakes of civil litigation, whether intentional or not, which is not producing the documents the court tells you to produce. If Faber thought he could surreptitiously hide material from the court, it was a poorly played move. However, having a poor data management protocol would cost him just as dearly. Whatever his reason for not providing the requested documents, the author duly points out the consequences: "be ready to explain why." From a fellow 1L, I found this article both insightful and well-done. Faber makes one of the classic mistakes of civil litigation, whether intentional or not, which is not producing the documents the court tells you to produce. If Faber thought he could surreptitiously hide material from the court, it was a poorly played move. However, having a poor data management protocol would cost him just as dearly. Whatever his reason for not providing the requested documents, the author duly points out the consequences: “be ready to explain why.”

]]> By: Camille Daunno http://www.discoveryresources.org/electronic-discovery-community/1l-early-discovery/#comment-477 Camille Daunno Wed, 14 Jan 2009 13:18:18 +0000 http://www.discoveryresources.org/?p=513#comment-477 Well Done observation...you brought out very astute facts...you will be an amazing attorney..keep up the good work. Well Done observation…you brought out very astute facts…you will be an amazing attorney..keep up the good work.

]]>