Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Requiring disclosure of a password implicates fifth amendment right against self-incrimination
Nature of Case: Unlawful possession of controlled substance
Electronic Data Involved: Password to cell phone
Keywords: 5th amendment, password, self-incrimination, cocaine, foregone conclusion
Key Insight: Whether compelling the defendant to enter his cell phone password would violate his privilege against self incrimination under 5th Amendment and art. 12 of Mass Declaration of Rights
Nature of Case: Trafficking a person for sexual servitude
Electronic Data Involved: data held on cell phone
Keywords: Cell phone password, 5th Amendment
Identified State Rule(s): Mass. art. 12.
Identified Federal Rule(s): 5th Amendment
Key Insight: Counsel has no duty to inform opposing counsel to preserve evidence that would be beneficial to opposing counsel’s claims
Nature of Case: Product liability
Electronic Data Involved: Airbag data (RCM)
Keywords: Ford, airbag, dismissed, spoliation
Identified State Rule(s): Rule 4:6-2(e)
Key Insight: ESI protocol agreed to by parties precluded EEOC from arguing other tapes were spoiled since Defendant complied with protocol.
Nature of Case: Employment Discrimination
Electronic Data Involved: E-mails and Documents regarding employee hotline
Keywords: Spoilation; Agreements between Parties
Key Insight: Rule 45 subpoena to defendant upheld and party warned over boilerplate objections
Nature of Case: Trade Secret Misappropriation
Electronic Data Involved: documents
Keywords: judge warns of sanctions
Key Insight: whether discovery can be bifurcated for the purpose of a dispositive motion and third party discovery
Nature of Case: Violation of the Telephone Consumer protection Act of 1991.
Electronic Data Involved: bifurcated discovery, emails, third party telephone records
Keywords: bifurcated discovery, class discovery, stayed discovery,
Key Insight: whether documents lose their privilege when there was limited effort to prevent their disclosure
Nature of Case: patent infridgement and violation of trade secrets
Electronic Data Involved: privileged documents requested back via a clawback agreement
Keywords: clawback, privilege, privilege review, search terms
Key Insight: Documents can be sealed if they are contain trade secrets and the unsealed exhibits attached to the sealed exhibits could reveal them.
Nature of Case: trade secret misappropriation
Electronic Data Involved: documents
Keywords: motion to seal, trade secrets
Identified Local Court Rule(s): 5(g)(3)(A) Motion to Seal, 5(g)(3)(B)
Key Insight: objection that requests are not relevant because requesting party’s defense is meritless is sanctionable
Nature of Case: interception of communication, defamation
Electronic Data Involved: email, text messages, calendars
Keywords: improper objection sanctioned
Key Insight: Judge accepted party’s friend request on Facebook, after the custody hearing and before decision.
Nature of Case: Motion to modify minor child custody order due to domestic abuse
Electronic Data Involved: Facebook posts. Electronic social media (ESM).
Keywords: Facebook, objective bias, judicial bias
Identified State Rule(s): Appeal: reversal and remand for further proceedings before a different judge
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