Florida E-Discovery

10 tips for choosing an eDiscovery solution that can get up and running quickly, solve the problems you need it to, and pay for itself within months, courtesy of TechRepublic.com.  To read the article, click here.

Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)

In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information.  Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated.  The fax was sent anonymously but the fax number was from defendant’s Stamford, Connecticut office.  The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance.  After nine months of discovery, defendant had produced only four additional DSFG Reports.  In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff’s termination.

The court held a telephone conference to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports.  During the conference the attorneys maintained their respective positions on the matter:  plaintiff’s attorney believed that the defense attorneys were hiding or had deleted the DSFG Reports, and defense counsel gave assurances that such reports could not be located.  The court proposed that defendant permit a forensic computer consultant to inspect its computers, to which the attorneys agreed.  The court entered an inspection order, which included the following provisions:

(1) The defendant shall permit its electronic records to be inspected by the plaintiff, through a mutually agreed to forensic computer expert;
(2) The inspection shall be performed by February 29, 2008;
(3) The inspection shall be limited to the search for the existence of the seven Department Stores Fragrance Group (DSFG) Ranking Reports, which the plaintiff claims he is entitled to receive but that the defendant claims it does not possess.  The scope of the inspection for the DSFG reports shall be limited to the twelve month period of time prior to the plaintiffs termination in September, 2004;
(4) In the event that the inspection reveals any of the seven DSFG reports, the defendants shall bear the entire cost of the inspection;
(5) In the event that the inspection does not reveal any of the seven DSFG reports, the plaintiff shall bear the entire cost of the inspection….

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Why did private investigator Brenda Doan-Johnson of Vero Beach allegedly pay a Melbourne man to place cameras and microphones in the private offices of three doctors at the Florida Eye Institute in Vero Beach?  Both a Jan. 24 Vero Beach Police report and a Jan. 28 civil lawsuit filed by three of Dr. Paul V. Minotty’s business partners, say Minotty, founder of the institute, had hired a private investigator and the police report identified her as Doan-Johnson.

According to this article, Doan-Johnson paid Mark Lynch, of Spy Source Warehouse in Melbourne to install 16 video cameras, 16 microphones and a digital recorder at various places in the Florida Eye Institute — including the offices of doctors Karen Todd, Mark Gambee and Val Zudan.

Investigators reported that Doan-Johnson introduced Lynch to two other people who also were working in the building, identifying them as computer forensic specialists who were copying the hard drives from the desk computers of doctors Gambee, Todd, Zudan and Thomas Baudo.

According to investigators, Lynch phoned Gambee Jan. 24 and told him about installing the electronics in Florida Eye Institute offices - including Gambee’s office. The Vero Beach police were called to Florida Eye Institute the same day.

Gambee told Vero Beach officers his computer was missing. Doan-Johnson returned it, saying it was thought to be company property.

West Palm Beach attorney James McCann, representing Gambee, Zudan, Todd and Baudo, said he didn’t know whether Minotty had hired Doan-Johnson to place the cameras and microphones in the doctors’ offices.

“That’s something that’s going to have to come out in discovery,” McCann said, referring to sworn testimony given in lawsuits.

Vero Beach woman arrested for alleged theft, electronic surveillance.

This article in the NY Law Journal entitled “A Case of ESI in Lost E-Mail Attachments” discusses three recent decisions issued by the U.S. District Court for the Northern District of New York: a decision by Magistrate Judge Randolph F. Treece evaluating who pays for the production of electronically stored information; a decision by District Judge Gary L. Sharpe addressing the procedures for considering alternate grounds for affirmance on a motion for reconsideration; and a decision by Senior District Judge Frederick J. Scullin Jr. analyzing when the amount of attorney fees can be counted toward jurisdictional thresholds.

To read the article, click here.

Busy week last week for Tom.

First he spoke at the National Judicial College, Conference of Appellate Judges course, entitled The Fourth Amendment: Contemporaary Issues for Appellate Judges, sponsored by the National Center for Justice and the Rule of Law, at the Ole Miss Law School Campus in Oxford, MS on April 14th and 15th, 2008. The presentation was attended by approximately 30 appellate judges from throughout the nation. Sadaka spoke on Fourth Amendment issues as they relate to computer forensics, data recovery; and issues related to electronically stored information. For more information, click here.

Next he spoke at the Indiana Judicial Center’s Spring Judicial College on the Impact of Technology on the Courts Including 4^th Amendment Issues. The presentation was attended by approximately 90 Indiana Judges. Sadaka spoke on how new technologies impact the judicial system with focus on Fourth Amendment, electronic intercept, eDiscovery, computer forensics, and issues related to electronically stored information. For the complete program, click here.

Okay, Tom, we get it. You know what you are talking about. Now back to work!

Our own Tom Sadaka will be speaking on June 27th at the Hilton Miami Downtown at a seminar put on by Lorman entitled Document Retention and Destruction.

Benefits for You

* Effective document preservation and production techniques
* Save money by storing only necessary records
* Minimize problems down the road by knowing the role of e-discovery in litigation
* Get updated on the federal rules of evidence
* Learn from others’ mistakes - hear about leading cases on document retention and destruction

Who Should Attend?

This seminar is designed for attorneys, controllers, accountants, CFOs, tax managers and officers, presidents, vice presidents, human resource managers, compliance officers and records managers.

For more information and a PDF brochure, click here.

HP announced today that it is buying Tower Software, an e-discovery software vendor based in Australia.  HP already offers something called the “Integrated Archive Platform” that, according to HP, “creates an archive of e-mail, images and other records.”  Tower’s offering is called “Trim Context” and provides content management for the HP Integrated Archive Platform.

The company cited the “growing market as organizations try to meet legal requirements and comply with federal rules and regulations” as the basis for the purchase. It also noted that “customers are adopting Microsoft’s SharePoint software for e-discovery purposes,” which was another impetus for the purchase.

To read the article click here.

In this New York Law Journal article entitled “Defendant Dodges an EDD Bullet,” the Court in the Eastern District of New York was confronted with the issue of whether Suffolk County “should be penalized for losing and/or destroying its e-mails” as requested in discovery and as otherwise relevant to the case.

The court discussed both Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), on sanctions for failing and/or delaying the production of discovery materials, as well as Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (SDNY 2003).

E-mails from MS execs involved in the “Vista Capable” marketing campaign contained in unsealed e-discovery seem to sew the case up for the plaintiffs. For example:

“We really botched this. I was not involved in this decision process and I will support it because I trust you thinking through the logic.”

All the gory details have been laid out for us in the Vista Capable Debacle slide show. To view the show, click here.

Update: Debunking myths in the MS Vista Capable case.