E-Mail Not Protected by 4th Amendment, Judge Says
October 29, 2009
Update: Orin Kerr says he misread the opinion. Read his correction here. The Fourth Amendment’s protection against unreasonable searches and seizures does not apply to e-mail, a federal judge has ruled. The judge’s reasoning would seem to sound a warning bell for anyone — lawyers in particular — not only who use Web-based e-mail accounts, but also who store documents of any kind online in “the cloud.” Orin Kerr, professor at George Washington University Law School, highlights the ruling and quotes from it at The Volokh Conspiracy, even though he says he disagrees with it. The ruling from U.S. District Judge Michael W. Mosman in Oregon addresses the question of whether the government must notify someone when it obtains a search warrant to access the person’s Web-based e-mail account. This case appears to have involved Google’s Gmail. The Fourth Amendment, Mosman writes, creates a “strong privacy protection for homes and the items within them in the physical world.” But e-mail, he says, resides outside a person’s home. When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all….
Legal Site’s Buzz-Building Ploy Backfires Badly
October 29, 2009
And now, for the latest entry in the “What were they thinking” department. The lawyer-referral site LawFirms.com wanted to build buzz for immigration lawyers through a social-media marketing campaign. So it decided that the best way to do that was to poke fun at illegal immigrants and the so-called coyotes who profit by smuggling them across the desert into the United States. The site created an ad for a made-up iPhone app designed for those “lost and disoriented in the desert.” The make-believe app, iCoyote, “packs all of the features of a real immigrant smuggler into the iPhone. Using GPS, navigate through the patrol packed desert without worrying about that pesky Border Patrol.” The app included a variety of features such as: iWife. It “will take care of finding marriage prospects for you. Aggregating and analyzing data from a variety of online sources [to] match you up with only the most promising US Citizen candidates.” iLawyer. “Homeland Security is Cracking down. Not to worry. With iLawyer, you can find an attorney to convince the immigration court to grant Asylum Protection. A Green Card is a finger swipe away.” Weather Monitors. “The desert can get hot, and trying to cross it…
Wednesday’s Three Burning Legal Questions
October 28, 2009
Here are today’s three burning legal questions, along with the answers provided by the blawgosphere. 1) Question: I was using my laptop to train myself on some new software my company is using and totally lost track of time. This caused me to be about 90 minutes late on a project for work (Full disclosure: I’m a pilot and the project was landing Northwest Flight 188 — We went 150 miles too far. Whoops!) Is this going to be a problem? Answer: Major problem. (Lowering the Bar) 2) Question: I really need some protection at my home. What is effective? A burglar alarm? A gun? Answer: Have you considered the lower-cost alternative of pretending that you are a dog to frighten away would-be robbers? (Legal Juice) 3) Question: I have the misfortune of working as the character Leatherface in a haunted house called the House of Screams. I was doing my best to be scary with my fake chainsaw and everything when one of the customers pulled his gun on me. I dropped the fake chainsaw and put my hands up, and the customer told me he was a police officer. Am I in trouble? Answer: You? No. The cop?…
Superhero Lawyer ‘Snyderman’ Wears His Costume Year-Round
October 28, 2009
Sure, you may have a Web site for your law firm. You may even have a Twitter account and a blog. But do you have an animated cartoon presenting yourself as a superhero? Well, do you? Didn’t think so! Via this post on the Bad Lawyer blog I stumbled upon this cartoon video about “Snyderman,” a “superhero of incredible strength and legal savvy, who uses creative imagination and courtroom skills to protect corporations and individuals against misconduct.” Not by coincidence, the Snyderman video appears on the Web site of Maryland attorney Stephen L. Snyder, who acknowledges right up front that: This website may, at first blush, strike you as a bit over-the-top. But it’s not designed to give you pause, or scare you away. It’s simply a reflection of Stephen L. Snyder, the man. His unique personality, creative imagination, and willingness to take risks, has resulted in multiple $100 million-plus recoveries for his clients. Click on the image below to play the Snyderman movie.
Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”
October 28, 2009
Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)
In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination. In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production. Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.
Plaintiff sought production of all of defendants’ computers and other electronic storage devices. Beginning its analysis of the issues implicated by such a request, the court first established the controlling law. Specifically, the court established that the rules “do not give a party the ‘right to conduct its own search of [another party’s] electronic devices” and that “[o]nly if the moving party can actually prove that the responding party has concealed information or lacks the expertise necessary to search and retrieve all relevant data, including metadata or residual data, is it proper for the moving party to initiate the searches of the other party’s ESI.”
In support of the motion, plaintiff argued that “defendant’s offer of providing…emails in ‘paper form’ is insufficient, as it does not provide ‘all relevant information stored in the electronic form…” Plaintiff also “raised the concern” that Mirbeau was not properly preserving ESI for production and moved (in a supplement to the motion) to compel defendants to sequester their electronic storage devices. Defendants argued plaintiff made an inadequate showing of the need for sequestering and that plaintiff’s request was overly burdensome.
The court denied plaintiff’s motion for several reasons including plaintiff’s failure to “identify what type of information it hopes will be discovered through the forensic mapping the entire City’s computer system, and [because] Mirabeau has not explained that the information it is requesting would be in the form in which the defendant’s ESI is normally maintained.”
Specifically addressing the accusation that defendants were not adequately preserving ESI, the court noted the lack of any indication that defendants had adequate procedures to respond to discovery but also noted the intrusive nature of plaintiff’s requested access.
The court went on to explain its “primary motivation for denying the motion,” i.e., “the apparent fact that neither party appears to have advanced any alternative proposals regarding acceptable discovery methods or media format in which to distribute the ESI relevant to the litigation other than the two extreme positions advocated by each side.” Accordingly, the court directed the parties to begin “open and candid discussions …regarding the completion of discovery of the defendants’ ESI” and to develop a “meaningful discovery plan.” In footnote, the court directed the parties to contemplate the following non-exclusive list of issues:
(1) what different methods could be used to find ESI relevant to this litigation; (2) whether neutral parties could be procured to run scans on the electronic devices of the defendants; (3) whether the searches for ESI could be staggered, such as not to disrupt the City's ability to function; (4) whether the searches could be narrowed such that they are focused only on certain parties and certain dates; and (5) what methods need to be in place to ensure that the privacy rights of third parties are not adversely affected during the discovery process.
The court ended its discussion of the issue by noting its willingness to impose sanctions, including terminating sanctions, in the event of the destruction of relevant evidence.
A copy of the full opinion is available here.
Upcoming Events – November
October 28, 2009
National Business Institute: Keeping Up with E-Discovery – Live Seminar
November 18, 2009
Washington State Convention and Trade Center
800 Convention Place
Seattle, WA
K&L Gates partner Todd Nunn will present “The Amendments to the Federal Rules of Civil Procedure and Recent Case Law” addressing attorneys’ obligations under the rules and recent decisions that effect those obligations. Todd will also present “Electronic Discovery in the States and Recent Case Law” – an overview of state activity with regard to electronic discovery and a discussion of recent case law from state courts.
Click here to learn more and to register.
The Knowledge Congress: Legal Ethics and E-Discovery – Live Webcast
November 19, 2009
3-5 PM ET
K&L Gates partner David R. Cohen will present on a number of topics, including compliance with preservation and production obligations, the duties of in-house vs. outside counsel, privilege issues and Fed. R. Evid. 502, and how to avoid common e-discovery pitfalls.
Click here to learn more and to register.
Thompson Reuters’ 13th Annual Electronic Discovery and Records Retention Conference
October 28, 2009
November 5-6, 2009
Hotel Sax Chicago
333 N. Dearborn St.
Chicago IL 60654
K&L Gates partner David R. Cohen will participate in a panel discussion, “Retrospective Analysis of Critical Cases and How to Manage Your Risk” on November 5th at 10:15 AM. At this discussion, participants will hear about the most relevant cases in this industry and learn how to avoid common pitfalls. This panel will also explore how different Information Governance policies could have yielded different results.
Click here to learn more and to register.
What Would YOU Do for World Series Tickets?
October 28, 2009
In honor of the World Series, which starts tonight in New York, I give you this nugget from the CBS News Crimesider blog that presents the question: What would you be willing to do to see your favorite team in the World Series? The answer for one Philadelphia woman, police say, was just about anything, including prostitution. Police say that Susan Finkelstein allegedly offered sex for World Series tickets via an ad on Craigslist entitled, “DESPERATE BLONDE NEEDS WS TIX (Philadelphia)”. The ad reads: “Diehard Phillies fan — gorgeous tall buxom blonde — in desperate need of two World Series tickets. Price negotiable — I’m the creative type! Maybe we can help each other!” The Bensalem, Pa., police state on their Web site that they arrested Finkelstein, 43, yesterday on prostitution charges. They claim they contacted her after viewing the Craigslist ad and she then “solicited an undercover police officer to perform various sex acts in exchange for a World Series tickets.”
Trend Watch: Fake/Parody Web Sites Create Legal Issues
October 28, 2009
Legal disputes over “fake” Web sites and social media profiles seem to be a developing trend. On Monday, I discussed in this post how Connecticut Republicans recently set up dozens of fake Twitter accounts and Web sites using the names of Democratic state representatives, e.g., MeetChrisDonovan.com.The Republicans are using the Web sites to criticize their opponents, and had been doing the same thing using Twitter until Twitter shut down the fake accounts. Since writing that post on Monday, I have come across two other recent stories involving fake or impersonated Web sites. This post on the Social Networking and the Law blog discusses a lawsuit filed on Sept. 24, 2009 after four students allegedly created a fake Facebook profile of another boy. The fake profile contained: his actual cell phone number, photos, and defamatory remarks. The defendants’ posts suggested the boy liked to engage in homosexual acts, and they also sent “disturbing, vulgar and sexual comments to a few girls.” At one point, the fake profile had 580 “friends” — many who knew the boy. Some of the users recognized the profile as a prank, but some believed it really belonged to [the boy]. The lawsuit, filed by the boy’s…
Review: Advanced Live Forensics & RAM Analysis Training from CSI Tech
October 28, 2009
A review of CSI Tech's Advanced Live Forensics & RAM Analysis Training course is now available here. The review is written by Jonathan Krause of Forensic Control.