Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: computer passwords/access, act of production
Nature of Case: Fifth Amendment violation (Criminal)
Electronic Data Involved: computer files
Keywords: “foregone conclusion” exception, password, search warrant, encryption, testimonial in nature, compulsion of mental processes
Identified State Rule(s): Pa.R.A.P. 313(b)
Key Insight: warrant vs. warrantless obtaining of data
Nature of Case: Criminal – Motion to Suppress Evidence; Armed Bank Robbery and conspiracy
Electronic Data Involved: CSLI (Cell-site location information); toll records (Call detail records); Subscriber information; time-stamped records
Keywords: CSLI; Stored Communications Act Order; Warrant; Carpenter v. United States; Validity of warrant; Suppression; Bad Faith; Probable cause; Exclusionary Rule; Good-faith exception; Fourth Amendment; Third party doctrine /no expectation of privacy; Fruit of the poisonous tree
Key Insight: evidence of consent and opt-out must be presented in pre-discovery MSJ
Nature of Case: Telephone Consumer Protection Act (TPCA)
Electronic Data Involved: text messages
Keywords: pre-discovery summary judgment
Key Insight: detailed stipulation of the discovery plan
Nature of Case: violation of the securities exchange act
Electronic Data Involved: all relevant discovery
Keywords: stipulation, discovery plan
Key Insight: Plaintiff claimed Defendant had not fully compensated for loses. Defendant claimed all monies owed under insurance contract had been paid. When discovery still remains on issues on summary judgment, summary judgment is premature.
Nature of Case: Insurance Coverage Dispute
Electronic Data Involved: Various discovery responses related to damage amounts
Keywords: summary judgment
Key Insight: Sanctions, Efforts to Thwart discovery, Fraudulent Concealment
Nature of Case: Estates and Trusts
Electronic Data Involved: Hard copy
Keywords: fraudulent concealment, Statute of Limitations, Sanctions, Violation of Court Orders, Failure to produce, Death Penalty sanction, Obstruction, Temporary injunction, Deception of the Court
Identified State Rule(s): Tex. R. Civ. P. 199.3; Tex.R. Civ. P. 176 .8 (a)
Key Insight: whether government had to turn over documents from agencies not part of DOJ
Nature of Case: wire fraud and conspiracy re Theranos
Electronic Data Involved: documents
Keywords: agency documents, Theranos,
Key Insight: Whether accessing a person’s information through an IP address being wired through an outside router is a violation of the 4 amendment
Nature of Case: criminal – possession and distribution of child pornography
Electronic Data Involved: IP address and location
Keywords: search and seizure, IP address, wireless router, subjective expectation of privacy
Key Insight: Request for email accounts at Comcast and Google
Nature of Case: Trade Secret Theft
Electronic Data Involved: archived e-mail, file backups, electronic files
Keywords: no privacy interest in [another person?s] email account, even if some of [defendant?s] emails were discovered there.
Key Insight: public interest in court pleadings, discovery motions shouldn’t be redacted
Nature of Case: patent infringement
Electronic Data Involved: discovery pleadings
Keywords: sealing judicial record, discovery pleadings, burden to show disclosure would cause injury
Copyright © 2022, K&L Gates LLP. All Rights Reserved.